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Indonesia: Legal Aid Law Passed

(Oct. 7, 2011) On October 4, 2011, Indonesia's House of Representatives passed a new law on legal aid (Undang-undang tentang Bantuan Hukum [Law Concerning Legal Aid], House of Representatives website (last visited Oct. 7, 2011)). Under its provisions, legal counsel will be available to every defendant at each step in the legal process. Previously, the only provisions on legal aid were contained in Law No.18/2003, concerning advocates (text in Indonesian, Judicial Commission of Indonesia website (last visited Oct. 6, 2011)), and Government Regulation No. 83/2008 of December 31, 2008, on requirements and procedures for provision of free legal aid (4:214 LEMBARAN NEGARA REPUBLIK INDONESIA [official gazette] 8141-8147 (2008)). (Ezra Syarief & Ulma Haryanto, Indonesia to Provide Lawyers for Accused in Courts, THE JAKARTA GLOBE (Oct. 5, 2011); Haryanto Suharman, Legal Aid Bill Passed into Law, INDONESIA TODAY (Oct. 4, 2011).)

The 2003 legislation was described in a United Nations Development Program publication as setting up an ideal, rather than implementing a full legal aid system. (Erna Witoelar et al., LEGAL EMPOWERMENT OF THE POOR: LESSONS LEARNED FROM INDONESIA 4 (July 2007).) Law 18/2003's provisions stated:

Legal assistance is legal service that an advocate provides pro bono to an incapable client (Article 1 No. 9);

In performing his duty an advocate should not discriminate against potential clients based on gender, political interest, ethnicity, race, and cultural or social background (Article 18 paragraph 1);

An advocate has an obligation to provide pro bono legal assistance to incapable justice seekers (Article 22 paragraph 1); [and]

Through the legal assistance he/she provides, an advocate is performing his/her professional duty to provide justice based on the law in the interests of justice seekers, including empowerment efforts (Clarification of Paragraph 2). (Id. at 5 [in box].)

The 2008 Government Regulation specifies in article 4(1) that “to get free legal aid, justice seekers must submit a written request to the advocate or through their advocate organisations or legal aid institutions,” thus, according to the U.N. Working Group on the Advocacy Against Torture, delegating the responsibility to provide access to legal aid to private practitioners. (Working Group on the Advocacy Against Torture, TOWARD ONE YEAR OF IMPLEMENTATION OF THE RECOMMENDATIONS OF THE COMMITTEEAGAINST TORTURE BY INDONESIA (Mar. 2010).)

The new law defines those eligible for legal aid as underprivileged individuals involved in civil, criminal, or administrative procedure and in non-litigation matters. In addition to the goal of equal access to justice, which fulfills the constitutional right to equality before the law, the new statute is designed to make the judiciary “effective, efficient, and accountable,” according to Sunardi Ayub, the Deputy Chairman of the House of Representatives. (Syarief & Haryanto, supra.)

Standards that must be met by legal aid providers are established in the new law; organizations or agencies that meet the standards will be able to receive state funding. Payments will be handled by the Ministry of Justice and Human Rights, from government monies, with procedures to be set by ministerial decree. Legal aid providers are not restricted to being solely dependent on public funding, as they can also receive money from other sources, such as grants and donations. (Id.)

The Director of the Jakarta Legal Aid Foundation, Nurkholis Hidayat, in discussing the new legislation, expressed his disappointment that it did not introduce wider changes in Indonesia's legal system. He stated that it “overlooked the larger purpose of legal aid institutions, which is to work for the interests of justice. It does not only mean the poor. … This means women, children, people criminalized by the system, minority groups, transsexuals. … They all need legal aid.” (Id.)