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.
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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.
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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
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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.
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