Has the Supreme Court just created a legal aid crisis?

There are 389 districts and municipalities across Indonesia without a single legal aid organisation. Photo by YLBHI.

 

The Supreme Court dealt a major blow to access to justice in late May when it ruled that paralegals are no longer permitted to provide direct legal assistance in Indonesian courts. The Court ruled in favour of a challenge to Articles 11 and 12 of Ministerial Regulation 1 of 2018 on Paralegals and Legal Aid Providers, deciding that the articles conflicted with Law 18 of 2003 on Advocates.

 

The challenge was filed by 18 advocates who said they were unfairly disadvantaged by the role of paralegals in providing litigational and non-litigational legal aid. They believed that Articles 11 and 12 of the regulation allowed paralegals to perform the same tasks as advocates. The result was a major disappointment for legal aid providers, who saw paralegals as a solution to the uneven distribution of legal services across the country, and the difficulties many have in accessing them.

 

The Supreme Court’s decision could be justified if Indonesian advocates fulfilled their commitment to providing pro bono legal assistance to underrepresented communities and individuals. The 2003 Law on Advocates states that Indonesian lawyers have a responsibility to provide pro bono legal aid. But the law is not enforced and there is no data on whether advocates have met their responsibilities to provide pro bono service. If advocates remain relatively uninterested in providing pro bono legal aid, access to justice will continue to be denied to many poor Indonesians.

 

Indonesia recently rolled out a national state-funded legal aid program for the poor, yet it is still struggling to meet the needs of the poor. Legal aid organisations are understaffed and the National Law Development Agency (BPHN), which is tasked with distributing funds to legal aid providers, is itself underfunded.

 

There are 405 legal aid organisations spread across 127 districts and municipalities. They attempt to provide legal aid services to more than 28 million poor Indonesians. This covers just a fraction of the need for legal services across the country. There are 516 districts and municipalities in Indonesia, meaning that there are 389 districts and municipalities without a single legal aid organisation.

 

Providing paralegals with the authority to offer litigational and non-litigational legal aid was intended to respond to this inequity in supply. The Supreme Court’s decision will only harm poor Indonesians by further limiting access to legal services.

 

Having made this decision, the Supreme Court now has a responsibility to work with advocates to ensure that poor Indonesians are not denied legal aid. It can do this in two ways. First, it should set up a mechanism to verify whether advocates have met their pro bono responsibilities. Second, there must be a way to ensure poor people have access to legal assistance, for example, by forcing advocates to accept any legitimate request for legal aid, even if they have already met their pro bono commitments as required by law.

 

Hopefully advocates will respond to this development sensibly. If they don’t want paralegals to be doing what they regard as their job, then they must be willing to take on additional pro bono responsibilities. If advocates are willing to take on any pro bono legal aid request they receive, then maybe paralegals will not be needed in court. But if they are not willing to do so, then the Supreme Court has made a huge mistake.

 

In a strict legal sense, it is possible to understand that the Supreme Court felt that the regulation on paralegals resulted in confused or overlapping authorities between paralegals and advocates. For this reason, the Supreme Court’s decision should be respected.

 

But this does not mean that the door should be closed on the provision of litigational and non-litigational legal aid by paralegals. The Ministry of Justice and Human Rights should be pushed to revise the ministerial regulation to improve clarity, or, if necessary, the 2003 Law on Advocates could be challenged in the Constitutional Court. By allowing only professional advocates to provide legal aid, the 2003 Law on Advocates could realistically be viewed as restricting Indonesian citizens’ constitutional right to equal treatment before the law.

 

The role of advocates in providing legal aid is guaranteed by law. But this is not a reason to restrict non-lawyers from offering legal aid to poor Indonesians. Access to justice is a right that should not be limited under any circumstances.

 

The only valid reason to restrict a person from offering legal aid is lack of knowledge. If a person understands legal procedural rules and regulations, he or she should be able to provide legal aid. The only real difference between paralegals and advocates in this sense is educational background. In fact, there is often no guarantee that an advocate will provide better legal assistance than a paralegal.

 

Meanwhile, in the courtroom, whether legal assistance is provided by a registered advocate or not will not have a major impact on the outcome of a case. The most influential factor is the quality of the argumentation and the extent to which the legal representative is able to persuade the panel of judges.

 

Paralegals should not be seen as a threat, rather they should be recognised as complementing and strengthening the formal profession. Instead of taking over the role of advocates, they can, in fact, spur advocates to increase the quality of the service they provide. Surely no advocate would want to be shown up by a paralegal?

 

Paralegals are a vital part of Indonesia’s legal system. The government needs to move quickly to make sure they do not disappear.

 

An earlier version of this article was published in Kompas as “Putusan yang Menyakitkan” on 13 August.