Why legal aid is not working in Indonesia

Strict eligibility requirements mean that many poor people who need legal aid continue to miss out. Photo by Taufik Ridwan for Antara.

 

It has been more than five years since Indonesia began implementing a national legal aid program but many low-income people still cannot get legal representation.

 

Indonesia’s legal aid program was established under Law No. 16 of 2011 on Legal Aid, which states that legal aid must be provided free to all poor people for criminal, civil and administrative matters. The national legal aid program was formally launched in 2013.

 

Before the passage of this law, there were only limited guarantees for legal assistance under Indonesian law. According to the Criminal Procedure Code (KUHAP), courts were required to provide legal assistance for defendants accused of offences carrying the death penalty, a sentence of 15 years or more, or five years or more for poor defendants. In practice, however, representation was very often not provided.

 

Under the 2011 Legal Aid Law, the government decided to accredit existing civil society legal aid organisations and then reimburse them for any free legal assistance provided. This contrasts with the system used in many other countries, where a single government-funded body coordinates and provides legal aid.

 

While the Indonesian approach was a wise strategy to prevent budget funds being corrupted, the existing system has not been able to meet public demand. The meagre budget funds allocated and strict accreditation requirements for legal aid providers has created a justice gap between legal needs and the resources available to meet those needs.

 

Even with a limited number of accredited organisations, resources are stretched thin. The Ministry of Law and Human rights has allocated Rp 53 billion to the 524 accredited legal aid organisations between 2019-2021. This means that, on average, the state can only reimburse about six cases per organisation per year. One of the most prominent local legal aid organisations, the Jakarta Legal Aid Institute (LBH Jakarta) receives more than 1,000 cases per year.

 

Unrealistic eligibility requirements for clients also mean that many people who need legal aid continue to miss out. To be eligible for free legal assistance, poor people are required to prove their eligibility by providing a “certificate of low-income status”, usually issued by a village head or relevant local officials.

 

Poverty status is based on the national poverty line, which in 2018, was set at a household income of Rp 1.9 million per month (about AU$190 per month). Given that the average income is about Rp 4.6 million per month, many people will never be able to access government-funded legal aid.

 

Meanwhile, hiring a private lawyer is likely to be prohibitively expensive for most Indonesians. Legal fees are often equivalent to more than two months average income, even for simple cases, way beyond the reach of most Indonesians.

 

In many countries, poor people can acquire legal representation through two mechanisms: government supported legal aid or pro bono assistance. The responsibility for providing legal aid rests on the state, while pro bono is considered a professional obligation. Ideally, the two mechanisms work together to ensure poor people have access to justice.

 

For pro bono to work effectively, lawyers’ professional associations must encourage a culture of pro bono work among their members and conduct monitoring, so that lawyers feel obliged to provide pro bono legal services. In Indonesia, this process has been hampered by the lack of a single unified bar association with the backing of all lawyers. A 2018 survey of lawyers by the Indonesian Court Monitoring Society (MaPPI) found that 15 per cent of respondents could not differentiate between pro bono assistance and legal aid. And only 20.5 per cent of lawyers complied with professional obligations to report on their pro bono activities. Accredited legal aid organisations continue to provide the bulk of legal assistance for poor clients.

 

Monitoring is also a problem for the national legal aid program. Although the Ministry assesses legal aid providers, it does not assess the quality of service provided. The accreditation process focuses on administrative compliance, including issues like the legal status of the organisation, number of lawyers, numbers of cases, and so on.

 

While litigation is sometimes required to ensure individuals’ rights are defended, in many cases it might not be necessary to take a case to trial. Some clients may prefer to settle their concerns through mediation instead of going to trial, which takes a significant amount of time and resources. There is little monitoring of whether clients are receiving the most appropriate advice and services for the problems they face. This process is complicated by the fact that a 2015 ministerial regulation states that legal aid providers will not be reimbursed for their non-litigational efforts if a case proceeds to trial.

 

Many countries face challenges in ensuring their poor have access to legal aid. Some countries aim to provide legal aid to as many people as possible, while others view the right to representation as a negative right – the state is obliged only to not prohibit people from acquiring legal aid. Indonesia falls somewhere in the middle of these two approaches.

 

Unfortunately, the success of the legal aid program is highly dependent on the government providing appropriate levels of financial and administrative support. Under the 2011 Legal Aid Law, regional governments can contribute budget funds to the national legal aid program. This suggests the law’s drafters predicted that the program would be underfunded and wished to provide room for regional governments to step in and close the gap.

 

As yet, however, few provinces or municipalities have participated. Even the Jakarta municipal government – which provided early funding for Indonesia’s first legal aid organisation, LBH Jakarta, in the 1970s – is still not providing legal aid for its poor.

 

The establishment of a national legal aid system was a remarkable achievement in Indonesia’s efforts to ensure all its citizens can access legal aid. But the system is now performing well below its promise.

 

Getting the program functioning better will require national and local governments to work together to support the system. This is essential if all Indonesians are to have access to justice – and not just the wealthy.