Funding Legal Aid in Indonesia: What the new system can learn from previous initiatives Matthew Zurstrassen Funding Legal Aid in Indonesia: What the new system can learn from previous initiatives 1. Executive Summary In late 2011, the Government of Indonesia passed the Law on Legal Aid. The Law mandates the establishment of a national legal aid system for poor people. The national legal aid system builds on a long but underfunded history of legal aid service delivery at the local level in Indonesia. To inform the establishment of the new system, the Australia-Indonesia Partnership for Justice (AIPJ) supported a series of research activities documenting lessons from legal aid service delivery mechanisms that existed prior to the Law. These were: Report on the Evaluation of Legal Aid Program Implementation and Fund Utilization by Ministries and State Institutions (BAPPENAS) examining budget allocations to government agencies for legal aid services; Legal Aid: A Right Not Given, (YLBHI) examining initiatives by sub-national governments to establish legal aid mechanisms; and Balancing the Scales of the Poor: Study of Mechanisms and Disbursement of Legal Aid Funds across five areas in Indonesia (LBH Jakarta) documenting legal aid services at the local level in five cities. This paper draws together the key findings from those research activities, and aims to inform the on-going development of the national legal aid system under the Ministry of Law and Human Rights (MLHR). 1.1. Key Findings (1) Government funding: A large proportion of Government of Indonesia budget allocation for legal aid is not being used for legal aid focusing on the poor. The overall budget for the national legal aid system (Rp50 billion or USD4.3m) should be placed in a broader context. The Government of Indonesia allocated approximately Rp1.09 trillion (USD94.7m) to 44 government institutions for services defined as legal aid related in 2012. Only a small portion of this was spent on providing legal aid services to poor people. Most activities funded legal aid services for government agencies or employees. As the Law on Legal Aid now provides a clear definition of legal aid, focusing on the poor, budgets allocated for legal aid related activities should either be consistent with this definition or renamed so their use is clear. (2) Role of other actors: There is a significant role for other actors (in addition to MLHR) to play in the development of legal aid service delivery. Various actors have an important role to play in the development of legal aid service delivery for poor people. In addition to the MLHR, these include the judiciary, sub-national governments 1 (SNGs) and legal aid organisations. These roles could be maximized through the development of common agreements on core issues such as service standards and funding coordination. The research provides valuable lessons for how the different avenues of legal aid service delivery can co-exist. (3) Case costing: Actual costs of services delivery are broadly accepted; however variations arising from case complexity, location and context are not costed There are areas where it is important to acknowledge variations and to develop legal aid services that respond to the local context. Significant variations exist, for example, in the costs of handling cases based on the type, complexity of cases and geographic conditions. Consistent with the Bappenas Frontline Service delivery strategy, under development, an improved legal aid system will need to focus on improved public sector efficiency, coverage (and quality) of services and community empowerment and participation in service provision. Table 1 following summarizes recommendations for different stakeholders in relation to these findings. Table 1: Key Findings and Recommendations Recommendations for key stakeholders Key finding (1) Government funding (2) Role of other actors National system Work with other government institutions to ensure funds defined as relating to legal aid are used for services consistent with the law. Support the development of common agreements of key aspects of legal aid service delivery such as identification of beneficiaries and service standards. 2 Other government agencies Sub-national government Ensure consistency in use of terms to categorize programs relating to legal service delivery. Where programs claim to provide legal aid services, beneficiaries should be well defined with limited scope for discretion. Only use legal aid terminology for programs that are consistent with definition of legal aid as identified in the Law on Legal Aid. MLHR and MoHA develop a circular defining mechanisms for SNGs to provide legal aid responsive to their local context that can co-exist with the national system. Develop local initiatives that have areas of common agreement with the national legal aid system but also define services more broadly to respond to local context. Legal aid organization AIPJ/Other donors Where other government agencies have budgets to support legal aid services, for example the courts, support the development of coordination mechanisms with the national legal aid system. Support the development of a strategic framework covering all stakeholders involved in legal aid service delivery. Develop a toolkit that can assist SNGs establish local initiatives that complement the national system, including through piloting and documenting with SNGs where political commitment exists. Recommendations for key stakeholders Key finding (3) Case costing National system Other government agencies Sub-national government Monitor requests for reimbursement of cases to ensure services are provided for all types of cases not only those that are less intensive. Legal aid organization AIPJ/Other donors Support government and legal aid organizations to develop an evidence-base of actual costs of legal aid services with a particular focus on: zz differences across regions; Develop service standards that ensure that accredited legal aid organizations provide quality services across all cases irrespective of complexity of cases. Strengthen documentation on actual costs to influence policy relating to how costs are reimbursed. zz differences by types of cases. Support improved evidencebase on costing of legal aid by documenting costs associated with delivery of legal aid services, including a breakdown of costs across different stages of legal aid service delivery. 2. Introduction In late 2011, a Law on Legal Aid1 was passed by the Government of Indonesia. The Law provides access to legal aid for anyone who is classified as poor and facing legal issues. Under the Law, a legal aid system is established and funded through the Ministry of Law and Human Rights. Legal aid services are provided by legal aid civil society organizations verified by the Ministry who are subsequently reimbursed according to the number of cases they handle. The new legal aid system builds on a long but largely underfunded history of legal aid service delivery at the local level in Indonesia. These services have been delivered through four main avenues. First, to varying degrees across Indonesia, civil society organizations have provided legal aid to those in need. Second, some national government institutions, notably the courts, have received budget allocations to provide legal aid services. Third, the legal profession provides pro bono legal services. Finally, a small number of sub-national governments (SNG) have developed their own initiatives to provide legal aid. Although these mechanisms were never sufficient to cover overall need, they can provide important lessons for the development of an overall legal aid system. Whilst drafting the Law on Legal Aid, several institutions involved in the drafting process requested support from Australia-Indonesia Partnership for Justice Reform (AIPJ) to fund background research necessary to inform the Law. The research requests came from different partners, with different priorities. Despite this, combined, the research ended up documenting aspects of the provision of legal aid across three of the four avenues mentioned above.2 The findings of this research are important for two reasons. First, they can inform the structure and operational procedures for the new legal aid system under the Ministry of Law and Human Rights (MLHR). Second, as the other avenues of legal aid service delivery will continue to exist, the findings can provide valuable lessons for how the different mechanisms can co-exist. This note draws together key findings from the different studies. 1 2 Undang-Undang nomor 16, tahun 2011 tentang Bantuan Hukum, or Law 16 of 2011 on Legal Aid (‘the Law’). None of the research covered delivery of legal aid services through the private legal profession. 3 2.1. What studies were commissioned? This note draws from three reports funded by AIPJ. There are as follows: zz A Report on the Evaluation of Legal Aid program implementation and fund utilization by Ministries and State Institutions3 was commissioned by the National Development Planning Agency (BAPPENAS). The aim was to identify the level of funding allocated for legal aid-related services to national ministries or state agencies and the types of services paid for by these funds. The research reviewed budget allocations in the 2012 budget. It also included an analysis of legal aid services for the main institutions receiving funding; zz Legal Aid: A Right not Given4 was published by AIPJ partner YLBHI in 2013. The report reviews subnational government initiatives to establish legal aid systems in five provinces and five districts/ cities across Indonesia. Each system was examined from the perspective of the: (i). background and legal status; (ii). financial provisions; (iii). structure and operational mechanisms; and (iv). Extent of use of the systems. zz Balancing the Scales for the Poor: Study of Mechanisms and Disbursement of Legal Aid Funds across five areas in Indonesia5 documents legal aid services at the local level across five cities in Indonesia. The study was undertaken by AIPJ partner LBH Jakarta. It focused on legal aid services covered by justice institutions and a stock-take of legal aid civil society organizations, the services they deliver and the costs involved. This note aims to make the findings across those reports more accessible to policy makers, Indonesian legal aid institutions and donors. Each report used a different methodology for collecting data and analyzed data with different audiences in mind. Research on funding for national government institutions relied primarily on analysis of budget documents and government implementing regulations. The other two research approaches involved qualitative work through field visits to select locations. In both of these reports there was some variation in the quality of data that could be collected across regions.6 Despite these differences, the findings across the reports can inform government efforts to further strengthen legal aid service delivery. 3. Main Findings This section documents the main findings across each of the reports focusing on: state institutions, sub-national approaches and services provided by legal aid organizations. First, an analysis of funding allocations for national government agencies is discussed. In 2012, although the Government allocated almost Rp1.090 trillion (US$94.7 million) across 44 agencies for services defined as being related to the delivery of legal aid, only a small amount of that translated into legal aid services for the poor. Second, the Law on Legal Aid provides space for SNGs to develop their own systems. Prior to passage of the law, a (small) number of SNGs had already established such initiatives and these are examined. Finally, some data was collected on the costs of handling cases for legal aid organizations across several provinces. The findings from this data can both inform the payment structure established by MLHR and provide information on potential additional analytical work. Table 2, below summarizes the key aspects of each of the systems examined in this research. 3 4 5 6 4 Soedarsono, Hidayat, Tarome, Laporan Penilaian Penyelenggaran Program Bantuan Hukum and Penggunaan Dana Bantuan Hukum di Kementerian dan Lembaga Negara, Bappenas, 2011. Ibrani (ed), Bantuan Hukum: Bukan Hak yang Diberi, YLBHI, 2013. Hutabarat, Neraca Timpang Bagi si Miskin: Penelitian Skema dan Penyaluran Dana Bantuan Hukum di lima wilayah di Indonesia, LBH Jakarta, 2013 In particular, the research was conducted by staff of legal aid organizations that were also subjects of the research. This influenced both the findings and the approach. For example, research locations were limited to those locations where pre-existing networks existed with the Legal Aid Foundation. Table 2: Summary of Key Aspects of Legal Aid Mechanisms Services by State Institutions Sub-National Government Services Legal Aid Organization Services Legal Basis Laws & implementing regulations of respective ministries Law on Local Government & SNG regulations Unregulated Budget National budget (APBN) through line agencies SNG budgets (APBD) Donor and self-funded Service Providers Private lawyers, Attorney General’s Department Private lawyers or agreement with legal aid organizations Lawyers from legal aid organizations, paralegals Beneficiaries Primarily ministries & employees. Court assistance to poor and court users Poor or marginalized as defined by local regulations Poor or clients facing structural cases. Types of Cases Cases involving ministry Criminal and civil cases as defined by local or officials, judicial review. Assistance from regulations court for criminal and civil cases. Criminal, civil or structural cases as defined by individual organizations. 3.1. State institutions and legal aid A large number of government agencies have budget allocations for services that could be interpreted as providing legal aid. Under the 2012 budget, 44 government institutions received funding for programs across nine categories of activities that are also covered by the definition of legal aid in the Law on Legal Aid. The institutions included almost all ministries, the main justice institutions, both houses of parliament and thirteen specialized agencies. Total budget allocations across all these categories was Rp1.09 trillion rupiah (approximately USD94.7 million). Graph 1 below provides a breakdown of funds allocated against each of the identified categories. Table 3 identifies the five institutions with the largest allocations for legal aid related activities. Graph 1: Budget Allocations by type of Legal Aid Service (Budget 2012, ‘000) Aid BantuanLegal Hukum 165,535,241 165535241 Legal Services Pelayanan Hukum 135322315 135,322,315 Advokasi Advocacy 229,973,298 229973298 Pembinaan Pengembangan Hukum Legaldan Guidance and Development 147,042,020 147042020 Litigasi Litigation 11325525 11,325,525 Penyuluhan hukum Legal Education 62675376 62,675,376 Administrasi hukum Legal Administration 122034895 122,034,895 Pengkajian Legal hukum Studies 5,085,000 5085000 Perlindungan WNI Protection of Indonesian Citizens Overseas 91000000 91,000,000 0 100,000,000 100000000 200,000,000 200000000 300,000,000 300000000 5 Table 3: Top Five Budget Allocations for Legal Aid related Activities (Budget 2012, ‘000) NO 34 12 6 22 4 CODE MINISTRY/INSTITUTION/PROGRAM/ACTIVITY [076] NATIONAL ELECTION COMMISION (KPU) 076.01.06 Reinforcement of Democratic Institution and Improvement of Political Process Program 3363 Preparation of KPU Regulation Draft, Advocacy, Dispute Resolution and Education on Laws related to Implementation of General Election [020] MINISTRY OF ENERGY AND MINERAL RESOURCES 020.01.01 Management Support and Implementation of Other Technical Assignments Program 1880 Legal Administrative Facilitation and Public Relations [011] MINISTRY OF FOREIGN AFFAIRS 011.08.12 Protocol and Consular Quality Improvement Program 1341 Improvement of Protection and Services for Indonesian Citizens and Indonesian Institutions in Overseas [040] MINISTRY OF CULTURE AND TOURISM 040.01.01 Management Support and Implementation of Other Technical Assignments Program at The Ministry of Culture and Tourism 2572 Planning and Legal Development [006] INDONESIAN ATTORNEY GENERAL OFFICE 006.01.06 Investigation/Security Building/ Compilation of Intelligent Cases 1103 Legal Information and Education 2012 PROGRAM ACTIVITY 303.000.000 213.000.000 851.529.388 120.411.078 117.260.000 91.000.000 231.730.070 80.063.000 91.174.002 55.408.655 Very few of these activities result in the provision of legal aid services as defined by the Law on Legal Aid. The Law on Legal Aid defines legal aid as being the provision of legal services to beneficiaries, on the basis that they are poor. The activities of government institutions covered by this budget analysis identified, however, three categories of beneficiaries: (i) activities specifically targeted at the poor; (ii) activities for the benefit of the general public; and (iii) activities for the benefit of the institutions, officials employed by the institutions or individuals with links to the institutions. The vast majority of the legal aid related activities fell into the third category. In most cases government agencies were provided with budget allocations to cover legal aid services primarily for when their institution or officials from the institution were involved in legal proceedings. In some instances, the support also covered judicial review proceedings related to the institution and, for the Attorney General’s Office (AGO), provision of legal assistance to other government agencies in its role as the State Lawyer (Jaksa Pengacara Negara or JPN). Less than one fifth of funds allocated for legal aid related services were for activities that benefited the general public. Five institutions received budget allocations for activities that included the general public as beneficiaries. The total for these activities was Rp208 billion or 19% of the overall budget for legal aid related services. As identified in the table below, funds for two of these activities, under the Ministry of Foreign Affairs and the National Migrant Workers Placement and Protection Agency, covered legal assistance for Indonesian’s living overseas. 6 Tabel 4: Legal Aid-related activities targeted for the General Population (Budget 2012, ‘000) NO 6 4 3 43 8 CODE 2012 MINISTRY/INSTITUTION/PROGRAM/ACTIVITY PROGRAM [011] MINISTRY OF FOREIGN AFFAIRS 011.08.12 Protocol and Consular Quality Improvement Program 1341 Improvement of Protection and Services for Indonesian Citizens and Indonesian Institutions in Overseas [006] INDONESIAN ATTORNEY GENERAL OFFICE 006.01.06 Investigation/Security Building/ Compilation of Intellegen Cases 1103 Legal Information and Education [005] SUPREME COURT 005.03.07 General Court Management Improvement Program 1050 Provision of Legal Aid Fund at Distric Court 005.04.08 Religious Court Management Improvement Program 1054 Improvement of Services and Legal Aid at Religious Courts 005.05.09 Program to Improve Management of Military Court and State Administrative Court 1060 Provision of Legal Aid Fund at Military Court and State Administrative Court [104] NATIONAL MIGRANT WORKERS PLACEMENT AND PROTECTION AGENCY 104.01.06 Migrant Workers Placement and Protection Facilitation Program 3910 Advocacy and Legal Protection within Asia Pacific and America Region 3.657.167 3911 Advocacy and Legal Protection within Middle East and Africa Regions 13.316.131 [013] MINISTRY OF LAW AND HUMAN RIGHTS 013.10.12 National Legal Education Program 1612 Implementation of Technical Services, Development of Legal Education and Promotion of National Legal Awareness 117.260.000 91.000.000 91.174.002 55.408.655 116.252.628 25.121.913 63.584.900 11.836.900 20.300.000 1.037.069 161.617.546 46.664.761 7.266.721 Of these activities, only the Supreme Court used budget allocations for activities directly targeted at the poor. These funds were provided through the Management Improvement Program budget allocations for both the general and religious courts. These allocations cover court fee waiver, legal aid posts, provision of legal services and circuit court activities provided through district courts as regulated at the time by a Supreme Court circular SEMA 10 of 2010. The amount allocated in the 2012 budget was just under Rp37 billion or 3% of the overall funding covering legal aid related activities. The delivery of legal aid related services by government agencies at the local level reflects this breakdown in budget allocations. As part of its study on legal aid service delivery in five cities, LBH Jakarta documented services provided by government agencies at the local level. The general and religious courts were the only institutions that consistently provided legal aid related services to the general public. Although services were targeted at the poor, district courts had discretion in allocating funds and this resulted in significant variation in outcomes. First, there was some variation in the amount of funding available. Both the Surabaya and Central Jakarta General Courts, for example, had Rp667 million and Rp579 million available for legal aid services whereas Jayapura General Court received Rp100 million and Makassar General Court received Rp72 million.7 These variations reflect, 7 ACTIVITY Surabaya General Court received Rp362m for criminal cases, Rp245m for civil cases and Rp60.4m for legal aid posts. Central Jakarta received Rp420m for legal services (civil and criminal) and Rp159m for legal aid posts. 7 somewhat, geographic differences in demand. However, there were also significant variations in average allocations per case. Estimates ranged from Rp300,000 or Rp400,000 being provided per case in Makassar to Rp6.6 million in Jakarta and up to Rp10 million per case in Jayapura. Although these differences are estimates, they can be attributed in part to the discretion provided to individual courts to both identify the lawyers that would provide legal aid services and determine the cases that would receive legal aid. Discretion in the allocation of legal aid related funds by the AGO resulted in even more limited services benefiting the general public. Potential beneficiaries for AGO legal aid services could be either: the general public8; AGO officials or the institution facing legal issues; or other state agencies or state owned enterprises through the AGO’s role as the JPN. In practise, across research locations the AGO most commonly provided legal aid services to other agencies and, in particular, state owned enterprises, in their role as JPN. Activities accessible by the general public were identified in only one of the five research locations. The Surabaya General Prosecutor’s Office allocated Rp2.5 million per month to support the operation of a legal services and complaints centre.9 This indicates that where discretion existed in identifying beneficiaries for legal aid services, the general public were less likely to receive benefit. Three key findings emerge from the analysis of legal aid budgets provided to state institutions: 1. The budget for legal aid services under the Law on Legal Aid should be placed in perspective. In 2014, Rp50 billion has been budgeted for the new legal aid system. This is one-fifteenth of the amount provided to government agencies in 2012 for services defined as legal aid but that are mostly used for providing legal advice to the agencies themselves or officials working for those agencies; 2. There needs to be clarity in the terms used to define legal aid services. The ambiguity makes it difficult to identify the overall amount of funding provided for legal aid services and the beneficiaries of those services. Where government programs use terminology related to legal aid services to justify funding those services should be consistent with the definition of legal aid identified in the Law on Legal Aid10; 3. Finally, beneficiaries should be clearly defined. As indicated above, where discretion exists in determining beneficiaries, services were less likely to benefit the public at large or the poor. 3.2. Sub-national governments and legal aid The Law on Legal Aid provides scope for sub-national governments (SNGs) to support legal aid systems in their districts or provinces. Article 19(1) specifically states that SNGs ‘can’ allocate funds towards the provision of legal aid. This is further refined by implementing regulations requiring such initiatives to be reported to the Ministry of Law and Human Rights and the Ministry of Home Affairs (MoHA).11 Prior to the passage of the Law, a (small) number of SNGs had established their own initiatives to deliver legal aid services. In 2011, lessons from ten of these locations, five provinces and five cities/districts, were documented by a team from YLBHI.12 These lessons can provide important information on how systems established by SNG could potentially co-exist with the national system established under the Law on Legal Aid. In particular, the research focused on understanding: the background and legal status of local initiatives; funding provisions; and operational mechanisms used. 8 9 10 11 12 8 In particular either local leaders in urban areas or communities in rural areas through the Pembinaan Masyarakat Taat Hukum (Bitmankum or Establishing a Law Abiding Community) program. Pos Pelayanan Hukum dan penerimaan Pengaduan (PPH dan PPM). Since the passage of the Law on Legal Aid, this has started occurred in several agencies, for example the Supreme Court (Perma 1 tahun 2014) and the Ministry of Defence (Permenhan 22 tahun 2012). Peraturan Pemerintahan 42, tahun 2013 tentang syarat dan tata cara pemberian bantuan hukum dan penyaluran dana bantun hukum, art 19. The exact number of districts or provinces with legal aid initiatives is unclear but is estimated at approximately 20 across Indonesia. YLBHI Jakarta identified locations for this research based primarily on their networks of partner legal aid organizations involved in implementation. Background and Legal Status Three factors were most influential in leading to the establishment of local legal aid initiatives. In approximately half the locations where research was conducted, demand came directly from governors or district heads/mayors, including as part of their election campaigns. Second, advocacy by local civil society organizations commonly played a role. In Musi Banyuasin and Semarang, for example, legal aid organizations lobbied local leaders on the grounds that the provision of legal aid was integral to poverty reduction programs being developed by the government. Third, in a small number of locations, government officials developed initiatives in response to public pressure and these were subsequently adopted by political leaders. In Sumatera Barat, for example, the legal bureau developed a legal aid initiative following demand from the public through a radio talk show in 2007. In only one of the ten research locations were the legislature involved in developing the initiatives. The most common form of legal status for these initiatives were decrees or decisions by the executive branch.13 The major practical difference between decrees and decisions is that the legal aid structure under the former was likely to be more institutionalized, with service providers being legal aid organizations rather than individual lawyers. Over time, this ensured less government interference in how legal aid was delivered. At the time of the research no government had passed peraturan daerah (perda or local regulations) covering legal aid.14 The approach to use decrees or decisions rather than regulations provided the executive branch with greater flexibility and limited the need to negotiate with parliament. It is also possible that the size of the programs was not sufficient to warrant the effort required to develop perda. However, this may become an issue following the passage of the Law on Legal Aid, which, on the face of it, requires legal aid initiatives of SNGs to be covered by perda. Financing Legal Aid Services There was significant variation in levels of overall funding, number of cases supported and amounts allocated per case. Table 4 provides information on the size of budgets, the amount funded per case and the overall number of cases funded. By far the most extensive allocation was in Sumatera Selatan where the provincial government provided Rp2.4 billion in 2010-11.15 Elsewhere, the most common amount was Rp200 million at the provincial level and, where budgets were set, Rp50 million at the district level. With the exception of Musi Banyuasin,16 funding was allocated using set amounts per case. These amounts varied from Rp1 million per case in Jawa Tengah to up to Rp 30 million in Sumatera Selatan. Several governments also varied the amount provided dependent on either the type of case or the level of appeal. In most locations, the structure of funding mechanisms may create inconsistencies with the approach under the new national legal aid system. Most locations used a funding mechanism that provided payments to lawyers based on upfront verification and approval of applications on a case-by-case basis by government. Such an approach is not particularly compatible with the national system that allows verified legal aid organizations to accepted cases meeting set criteria and subsequently seek reimbursement. As the Law prohibits funding of cases from more than one source, without coordination mechanisms, this makes the national system a funder of last resort. 13 14 15 16 Peraturan Gubernur/Walikota/Bupati or Keputusan Gubernur/Walikota/Bupati, with the former having slightly stronger legal standing. A draft perda existed in Jawa Timur. This was subsequently passed as Peraturan Daerah 9, tahun 2012 tentang Bantuan Hukum kepada Masyarakat Miskin. The initial budget was Rp2.8 billion, however Rp400 million was re-allocated to cover legal costs for a complex land case. In Musi Banyuasin, legal aid lawyers were paid a set amount by the government irrespective of the number of cases they handled. 9 Table 5: Budget Allocations & Cases Supported per Province/District Total Budget Budget per Case Total Cases Province Sumatera Selatan 2009: Rp1.6 b 2010-2011: Rp2.4b Rp30m (trial and review); Rp 2m (appeal) 2009: 118 applicants, 70 approved 2010: 107 applicants, 82 approved 2011: 238 applicants Sumatera Barat 2011: maximum of Rp75m Rp7.5m per case (including Rp500,000 tax) 4 cases in 2011 Sulawesi Tengah Rp200m cases; Rp200 administration & socialization Rp10m (trial); Rp5m (appeal); and Rp7m (review) 7 applicants 4 cases approved Target 15 cases/yr Jawa Tengah 2011-12: Rp200m allocated Rp1 m per case Not available Jawa Timur 2013: DPRD seeks budget of Rp200m Not defined Not yet in operation Musi Banyuasin No set budget Not case based. Honoraria paid to legal aid team 2007: 54 cases; 2008: 86 cases; 2009: 119 cases; 2010: 179 cases; Kota Palembang No set budget Criminal: Rp7.5m Civil/admin/labour: Rp10m 60-70 aplications 47 cases approved Kota Semarang 2011: Rp201m Rp3m per case (including 7,5% tax) 2011-12: 67 cases Kota Makassar Rp56m allocated Criminal: Rp5m Civil: Rp7m 2009: 7 applicants, 6 approved 2010: 12 applicants, 8 approved 2011: 5 applicants, 3 approved Sinjai 2012: Rp50m allocated Not defined Not yet in operation Kabupaten/kota Operational Mechanisms The operational mechanisms that were established by SNGs also provide lessons for how such systems could coexist with the national system. A variety of approaches have been trialled on issues including targeting of beneficiaries, selection of service providers and the types of cases that can be funded. These approaches can help inform how other SNGs could develop mechanisms that complement the national legal aid system. The table below documents some key areas. To assist local governments allocate resources towards legal aid, a circular from national government clarifying some of these areas of coexistence may be helpful. As mentioned above, the implementing regulations for the Law require that local initiatives are reported to both the MLHR and MoHA. In order to ensure that the policy of SNGs are not subsequently overturned, some form of circular either from MLHR or MoHA identifying areas where SNGs have flexibility in developing their initiatives and others that are more closely regulated by the national law may be beneficial for SNGs. 10 Table 6: Comparison between national and SNG operational mechanisms Issue National System Lessons from SNGs Definition of Beneficiary Dependent on poverty status. Applicant required to confirm proof of poverty Applicants generally need to show proof of residents. Approaches also include: - poverty criteria - broader criteria covering ‘disempowered’ (‘tidak mampu’) - open to all citizens. SNGs could include criteria for beneficaries targeting issues specific to local context Service Providers Legal aid NGOs with over 310 organizations accredited across the country Approaches varied and included: - identifying local partner legal aid organizations institutionally; - selecting individual lawyers from legal aid organizations; - maintaining a pool of private lawyers. Institutional linkages reduced the subjectivity in referral of cases. Future approaches draw on MLHR verification process to select partner institutions. Type of cases National system covers criminal, civil and administrative cases Most system have similiar coverage. Some systems preclude assistance for particular types of criminal cases (for example narcotics or sexual offenses). Scope of services Broad range of cases including litigation & 9 categories of non-litigations support A number of SNG systems limited support to litigation cases. In 4 locations support covered non-litigation. SNGs should cover nonlitigation services but clearly define scope of services in this instance. Monitoring Monitoring teams formed at provincial level comprising of MLHR and local government representatives System include monitoring team generally overseen by legal bureau of SNG, who report to government. Should consider approaches that coordinate monitoring between SNG and national system, as legal bureau is normally represented on both. This would also reduce the risk of duplicating funding. 3.3. Legal aid organizations Legal aid organizations play a key role in implementation of legal aid services through the new national system. The MLHR has verified approximately 310 legal aid organizations across Indonesia. These organizations are now accredited to represent the poor and can submit claims for reimbursement for both litigation and non-litigation cases. Most of these organizations provided legal aid services prior to the passage of the Law. This section examines the costs involved for organizations in handling cases. Although LBH Jakarta’s research covered five cities across Indonesia, most of the data captured here focuses predominantly on Surabaya, Jakarta and Makassar, locations where the data was more complete.17 Initial data collected as part of the research indicates that there is significant variation in costs across cases for both civil and criminal cases. Under the present system, cases are reimbursed at a fixed rate irrespective of the type of case, geographic location or the degree of complexity. For litigation cases the current rate is Rp5 million for criminal, civil and administrative cases. As an overall figure, Rp5 million is roughly equivalent to the average case-handling costs of organizations drawing from the data collected from LBH Jakarta across three cities prior to the passage of the Law.18 However, it does not reflect the significant variation in costs across cases and across locations. 17 18 The research included an examination of the institutional strength of legal aid organizations in the research locations, funding sources and areas of focus. However, this summary does not cover that material. A more comprehensive, nationwide analysis of institutional capacity of legal aid organizations was undertaken by the World Bank’s Justice for the Poor program with results to be published shortly. Between 4-6 legal aid organizations were interviewed in each city and the researchers analyzed a small sample of criminal and civil cases in each of these organizations. Although all the organizations interviewed were based in provincial capital cities, they handled cases both from those cities and from more remote areas in their respective provinces. 11 The costs involved in handling cases varied most significantly across geographic locations for criminal cases. As presented in Graph 2, from the three cities were data was more complete, Makassar had considerably higher average costs, with the average estimated at Rp8.8 million per case. This compared to estimates of Rp2.2 million and Rp4.1 million for Surabaya and Jakarta respectively. Although the data was incomplete from Jayapura, anecdotal evidence collected as part of the research indicated that average case-handling costs for criminal cases in Papua are even higher than Makassar, averaged at Rp11 million per case. Graph 2: Graph 3: Case-handling costs (criminal cases) Case-handling costs (civil cases) Although less significant, there was also some variation for civil cases across geographic locations. For civil cases, Makassar had the lowest average costs at Rp3.1 million per case and Jakarta had the highest average costs at Rp4.8 million per case. Although far from conclusive, the figures indicate that geographic access may be less of an issue in civil cases.19 The range in costs per case for both criminal and civil cases shows that the average across cases is not representative of actual individual case costs. As the table below highlights, although the amount per case when averaged across a number of cases came close to the lump sum set by MLHR, only a small number of cases actually cost between Rp4-6 million. The overall average was heavily influenced by balancing a large number of lower cost cases with several cases were expenditure was significantly higher. Across locations, the cheapest civil cases required approximately Rp300,000 per case. At the upper end of the spectrum, a civil case in Jakarta required Rp8.6 million, including appeals. Costs at the lower range for criminal cases were slightly more expensive than civil cases varying from Rp600,000 to Rp1.1 million. At the upper range, however, considerably more funds were required, with several criminal cases in Makassar requiring approximately Rp16 million. For both criminal and civil cases, the majority of expenses were normally incurred at the court trial stage. With a few exceptions, the costs incurred in the litigation phase in general courts for criminal cases, represented between 40%-75% of overall costs. Costs incurred in the pre-litigation stage and during police and/or prosecutor investigations each comprised between 10%-30% of overall expenses.20 Finally, where appeals and reviews were conducted these normally represented less than 10% of overall expenses. For civil cases, with one or two exceptions, the vast majority of expenses were incurred through the court process. Between 40% - 80% of costs were incurred in the trial process. Appeals and reviews also formed a larger proportion of expenses than in criminal cases, representing between 20%-30% of costs where they occurred. Expenses for musyawarah (negotiation) and mediation were incurred in only 40% of cases, generally comprising approximately 10% of overall costs. 19 One potential hypothesis is that civil cases were more complex in urban areas. Only a small number of cases involving the administrative courts were examined. The average costs for cases in the administrative courts were overall higher, particularly in Jakarta where the average was Rp8.2 million per case. 20 One or two exceptions existed. For example, for one criminal case in Makassar it was claimed that Rp16.2 million of a total of Rp16.7 million was required in the pre-litigation stage. 12 Graph 4: Number of Cases within each Cost Bracket Finally, the research documented the intensiveness of engagement at different stages of the legal process for a small sample of cases, primarily in Jakarta and Makassar. For several cases, the number of occasions legal aid organizations acted on behalf of clients at particular stages of the legal process was calculated. The findings generally correspond with the breakdown in expenses incurred at different stages. Across the board, for both civil and criminal cases, 40%-70% of activity occurred at the litigation phase in the general court. There was a slightly higher degree of engagement at the pre-litigation phase than indicated by expenses, representing 20%-30% of activity. In addition to legal consultation with clients, this generally also comprised of facilitation support to non-judicial bodies such as Komnas HAM, the Victims and Witness Support Agency and psychologists. Overall, several key findings arise from this analysis of expenses incurred in delivering casehandling services through legal aid organizations. 1. Case-handling costs vary significantly for both civil and criminal cases. Although overall, the average was roughly approximate to the reimbursable amount set by the MLHR under the national legal aid system, costs varied from a low point of several hundred thousand rupiah to up to Rp16 million; 2. Given these variations, set lump sum fees may create incentives for legal aid organizations to handle less intensive cases or, inversely, reject more complex cases that are likely to require greater costs; 3. There is a need for more data on variations in cost. In particular, more accurate data should cover: variation as a result of geography (including capturing the work of non-provincial level legal aid organizations); a more detailed breakdown of costs dependent on types of cases beyond the criminal/civil distinction; and a more detailed understanding of the costs related to non-litigation support, including mediation. 4. Conclusions The report draws together the main findings from three research activities supported by AIPJ that were used to inform the Law on Legal Aid. These research activities examined the scope of legal aid services provided by national government institutions, sub-national governments and legal aid organizations prior to the established of the national legal aid system. As the new legal aid system continues to develop, the findings from this research remain relevant both to inform improvements 13 to the system and define its relationship with other avenues of legal aid service delivery that continue to operate. In particular, the findings highlight several areas where there is scope to ensure that budget allocations for legal aid can result in more effective delivery of legal aid services at the local level. This section summarizes those areas. A number of more detailed findings are also identified for specific stakeholders involved in the delivery of legal aid services. Those findings along with recommendations flowing from those findings have been described in table 1 at the outset of this report. First, there is a need to clearly define who the intended beneficiaries of legal aid services are. Although the government allocated a total of Rp 1.090 trillion to legal aid activities across 44 ministries and agencies in 2012, only a small proportion of that supported legal aid services for the public, with even less specifically targeted at the poor. Where discretion exists in how funds are targeted they are less likely to result in legal services for the poor. Similarly, it is important for the government to know how much of its budget is allocated to providing legal assistance to the poor. Legal aid activities that are not consistent with this objective should either be renamed or reallocated so that they are spent on legal aid for the poor. Second, scope exists for a range of actors to be involved in delivering legal aid services although a common understanding on some key aspects should be encouraged. The research identified that a range of actors that have an interest in delivering legal aid services. In addition to the MLHR, the judiciary continues to have a budget to provide legal services to the poor. There are also incentives for sub-national governments to develop their own initiatives. Legal aid organizations play a critical role bridging these different approaches. This space for a variety of actors should be encouraged. However, it should also be based on an agreed consensus of what constitutes legal aid service delivery. These elements include defining beneficiaries as noted above. They also include issues such as the development of service standards for legal aid service providers and funding coordination to reduce the risk of double funding on particular cases. Third, and conversely, as the system develops there is a need for space to encourage initiatives and acknowledge that needs may vary according to context. The findings clearly show, for example, that the provision of Rp 5 million per litigation cases is a relatively close approximation to the average cost of running a case. However, there are significant variations based on the complexity or type of case or geographic factors. Some way of factoring these variations into the system may be necessary to ensure the appropriate incentives exist for legal aid providers to represent all clients in need. Similarly, there are areas of legal aid service delivery that remain under-developed. These include forming coordinating mechanisms between the national system and local initiatives, developing systems that can deliver services specific to local context and encouraging types of services that may more effectively represent the needs of the poor, for example mediation and class action initiatives. Finally, given that the development of legal aid is a work in progress, improvements to the system will benefit greatly from documenting evidence of progress, including identifying and responding to limitations. The research papers that were commissioned show how targeted, evidence-based research can inform policy development. They also identified areas where additional work may be required as legal aid services are rolled out, tested and constantly refined. Initial data on the costs of legal aid service delivery, for example, identify that, although average costs are appropriate, a fixed-fee mechanism may create incentives to tailor services to particular types of cases. Support for on-going analysis on issues such as this would assist the government in identifying responses and inform a more comprehensive, longer-term strategy to build the legal aid system. 14