Makalah WORKSHOP Memperkuat Justisiabilitas Hak-Hak Ekonomi, Sosial dan Budaya : Prospek dan Tantangan Yogyakarta, 13 - 15 November 2007 Justiciability Hak Ekosob and the Legal Aid (Workers) Act Oleh : A. Patra M. Zen Vice Chairperson Indonesian Legal Aid Foundation Justiciability Hak Ekosob and the Legal Aid (Workers) Act * A. Patra M. Zen Vice Chairperson Indonesian Legal Aid Foundation patra.m.zen@gmail.com Preface In the discipline of the (international) human rights law, law experts mostly quote the case between the Republic of South Africa versus Grootboom, to show the jurisprudence and the justiciability of Hak Ekosob – Hak ekonomi, sosial dan budaya (the economic, social, and culture rights) at domestic level. Justiciability is a term that uses to be used in the civil law procedure to give a limitation to cases that can be examined and be brought before the court. This principal is now being adopted in human rights law, which gives victims, both individuals and groups, an opportunity to get a remedy or can be a victim of human rights violations if the right to remedy is not fulfilled.1 In South Africa, a jurisprudence that related to the justiciability of Hak Ekosob can be found since 1996, when the Constitutional Court that examined the Irene Grootboom’s case decided to obligate the state to establish a housing program to “relief for people who have no access to land, no roof over their heads and who are living in intolerable or crisis situation”.2 Grootboom is one of thousands citizens, including children, whose house was being forcedly evicted by the Local Government in Africa. She was then gathering a petition and brought the case to the court to demand the government to provide houses for the poor citizens. * A Paper for the Legal Aid Seminar, organised by; YLBHI-LBH Jakarta, IALDF, UNDP dan PGRI, Jakarta 21 - 24 April 2006. 1 About the justiciability of Hak Ekosob, see A. Patra M. Zen, “Justisiabilitas dan Hak Klaim Masyarakat Korban Industri Pertambangan” dimuat dalam Gali-Gali Volume 4 Nomor 31 Desember 2002; also contained in A. Patra. M. Zen. 2005. Tak Ada Hak Asasi yang Diberi. Jakarta: YLBHI dan CIDA, h. 69 – 72; Periksa juga. A. Patra M. Zen. “Justisiabilitas Hak-hak Ekonomi, Sosial dan Budaya: Menarik Pengalaman Internasional, Mempraktikkannya di Indonesia.” Jurnal Komnas HAM. Vol. 1 No. 1 Oktober 2003, pp. 36 – 47. 2 About Grootboom case, see for instance: UN doc. E/CN.4/2003/5. 3 March 2003, para. 12; E/CN.4/2002/58. 10 January 2002, paras. 48, 53; E/CN.4/Sub.2/2002/18. 9 August 2002. The Social Forum. Report of the Chairman-Rapporteur, José Bengoa, in accordance with Sub-Commission resolution 2001/24, para. 31. 1 This short article is going to capture the picture of justiciability of Hak Ekosob in Indonesia, including description and analysis that related with this theme. In the end, there will be some description about the relevance of the Legal Aid Act in order to give a “stronger” foundation for the legal aid workers to promote and to push the fulfillment Hak Ekosob in this country. A. The Justiciability of the Economic, Social, and Culture Rights in Indonesia The justiciability of the civil and politic rights are relatively known by the people and have been practiced in Indonesia. As an example, victims or families of torture and extra-judicial killing victims can directly ask the court to examine the cases and also to make a decision on remedy to the victims and victims’ families, in forms of restitution, compensation, or rehabilitation. Those practices are clearly can be seen in gross human rights violations, where victims and their families are entitled to the efforts on remedies. Indeed, in 2002, the government has released the Governmental Regulation No. 3/2002 on the Compensation, Restitution, and Rehabilitation for the Victims of Gross Human Rights Violations.3 The formulation of the Presidential Decree was based on the provisions that regulate the same matters in the Law No. 26/2000 on the Human Rights Court.4 In 2004, there was an important jurisprudence in human rights area, where the Ad hoc Human Rights Court decision for the gross human rights violation in Tanjung Priok, on the Sutrisno Mascung’s et.al case decided to give compensation for the victims of the Tanjung Priok tragedy. Right on the August 20th 2004, the court has sentenced Sutrisno Mascung, former Commander of the Arhaduse Battalion, to three years in prison for committing gross human rights violations against the people of Tanjung Priok. The trial was held by judges Andi Samsan Ngaro, Binsar Gultom, Amirrudin Abureira, Sulaeman Hamid, and Heru Susanto.5 In the next development of 3 Signed by President Megawati Soekarnoputri on 13 March 2002 (L.N. 2002 No. 7; T.L.N. 4172). L.N. 2000 No. 208; T.L.N. 4026. 5 Two judges Amirudin Abureira dan Heru Susanto have dissenting opinion on that decision. See for instance, Kompas. 21 August 2004; Hukum Online. 21 August 2004. 4 2 the case, the deliberation of the Supreme Court Judges on the February 28th 2006, decided Sutrisno Mascung was not meet qualification of committing gross human rights violations.6 The precedent showed us some lesson to learn: (1) The prosecutor had put the compensation, restitution, and rehabilitation stipulation as remedy efforts for the victims; (2) The judges that decided to give compensations for the victims of the Tanjung Priok tragedy, has reconfirming the justiciability of human rights. What about the human rights violation cases or incidents with economic, social, and culture (ekosob) dimensions? To some extent, the precedent of justiciability of Hak Ekosob has been practiced in Indonesia. Despite of the unpopularity of the justiciability of Hak Ekosob, there are several jurisprudences and precedents that show implementation of justiciability of Hak Ekosob, as described below. Right to (at) work The chair of the judges assembly, Manis Soejono on July 31st , at the Central of Jakarta’s district court, in the verdict on the case of the becak (pedicab) – a traditional transportation – riders against the Governor of Jakarta, Sutiyoso, stated that the plaintiffs could continue their job as becak riders in residence areas and traditional markets. At that time, there was not less than 139 coordinator of becak riders who were representing 5000 of becak riders all over Jakarta sued the Governor’s policy that forbids Becak to operate in Jakarta. In the verdict, the judges was also punished the defendant to provide some special spaces and traffic lanes for becak to operate.7 Therefore, in the housing right, one of the examples is the verdict of the judges that was chaired by Fritz John Polnaja at the East Jakarta’s district court that stated that the action that was conducted by the district government of East Jakarta that had forcedly evicted the people at the RT 04/RW 02, Kelurahan Pinang Ranti, Kecamatan Makassar, East Jakarta, was an action against the law. On October 21st 2004, the defendants, which were the Major of East Jakarta and 6 7 See, Republika. 4 March 2006. See, Kompas. 1 August 2000. 3 the head of the Makassar Sub-district, were found guilty. In the verdict, the judges stated that if the defendants did not execute the verdict, they would be charged for 10 millions rupiah per day until the next decision.8 Housing Right Two years ago, there was news said: that the government through the Department of Housing and Infrastructure built some healthy-simple houses for 86 head of families who had been victims of the eviction at the Pondok Kopi public funeral. The houses that were built located in Parung Panjang, Bogor. The Housing General Director at the Department of Housing and Infrastructure, Syarifuddin Akil said that, this houses building program for eviction victims was an effort under “program satu juta rumah“ (“the one million houses program”). The facility given by the government was giving down-payment money for the national housing credit for those 86 head of families.9 The former president of Indonesia, Megawati Soekarnoputri at the time says that “the government and the people of Indonesia could be able to realize the one million houses program that was initiated by the government in 2004 if the fund for the program is not being corrupted”.10 To realize this program, the government, at that time, allocated Rp. 710 billions to build some healthy-simple houses along with the facilities to support it, including hygienic water and sanitation facility. This program was divided into 3 classifications: 200.000 units of simplehealthy houses, 200.000 units of non-simple- healthy houses, and 600.000 units of swadaya (selfsufficient) houses. The funds resources were gotten from the National Budget (APBN). In addition, this one million houses program was introduced by the government under Megawati to respond the housing needs issue, especially for the poor. Based on data that has been quoted from a mass media: in all regions in Indonesia there were 14,5 millions of improper houses (huts) with insufficient wide of neighborhood, almost 47.500 hectares in more than 10.000 8 See, Tempo Interaktif. 21 October 2004; 24 February 2004; 12 October 2004. See, Tempo Interaktif. 2 August 2004. 10 Quoted from Kompas. 10 February 2004. 9 4 locations.11 It is important to be noted that the launching of this program was near to the general election period. The Right to Education In practice, justiciability of the right to education can be found in the Constitutional Court verdict on the judicial review of the 20% minimum budged allocation for education from the whole National/local government budget (APBN/APBD). The Constitutional Court stated in the verdict that the Law number 13/2005 on the National Budget of 2005, as far as it’s related to the education budget that was only 9,1%, it is against the 1945 Constitution, and as far as it related to this matter, it is not legally binding.12 In another Constitutional Court verdict, it was stated that the explanation of the Article 49 Section (1) of the Law number 20/2003 on the National Education System is also against the 1945 Constitution and it is not legally binding.13 The explanation of the Article 49 Section (1) states that “the fulfillment of the educational fund can be provided gradually”, while in the 1945 Constitution and the Article 49 clearly state that the budget allocation provision for education is minimal 20% of the National and Local government budget. However, in the National Budget of 2006, the Budget Committee at the Parliament only allocated around Rp 36 million, which is not more than 8.1% of the budget. The Vice Chairperson of the Budget Committee, Hafiz Nawawi said that in 2007, the educational budget must reach the 20% of the National budget. While according to the Minister of Welfare, Aburizal Bakri, President Susilo Bambang Yudhoyono instructed gradually, and in 2009, the 20% allocation will be fulfilled.14 It is ironic and a little bit weird that the groups of people that have been eagerly down to the street in order to support one of the district leader nominees or to conduct protest actions against 11 See, Rudi Victor Sinaga, “Realisasi Pembangunan Rumah Sederhana Jauh dari Target” in Sinar Harapan. 14 May 2006. 12 See, Indonesian Constitutional Court decision No. 026/PUU-III/2005 (20 Maret 2006), h. 87. 13 See, Indonesian Constitutional Court No. 011/PUU-III/2005 (5 October 2006), h. 102 - 103. 14 See, Kompas. 24 March 2006; Media Indonesia. 23 March 2006; Hukum Online. 9 November 2005. 5 the “Playboy” magazine, are not eager enough to do the same thing when, for instance, the government does not fulfill its obligations that is mandated by the Constitution to allocate educational budget, including to provide free primary educational facilities. Indeed, many groups should fight for our rights eagerly and push the government to realize our constitutional rights and our fundamental Hak Ekosob. The Migrant Workers Protection In Indonesia, citizen’s law suit model, at least, has been acknowledged by Central Jakarta’s Court that investigates the case of Nunukan’s Tragedy.15 The suit submitted by Nunukan’s Tragedy Advocacy Team alleged Indonesian government for crimes against humanity which evoked the deportation of Indonesian migrant workers from Malaysia. Megawaty’s government, appraised failed to fulfill its obligation protecting citizen’s rights, which in this case were Indonesian workers.16 Judge council in National Court of South Jakarta, headed by Andi Samsan Nganro, in its decision appraised that government’s task were not maximum in controlling and to protect migrant workers or Indonesian workers. 17 The precedent to accept of bringing the suit to be examined on the court showed the existence of judge’s good intention that enable the victim of crimes against human rights to claim their rights which had been collided. Judge committee in this case, in principal has adopted the procedure of “public interest litigation”. In India, the Supreme Court has even adopts “public interest litigation” procedure, which enable everybody, not only the crimes against humanity victims, to seek the justice in every efforts, including if it’s only sending a post card.18 15 See Hukum Online. 24 October 2003. About this lawsuit, see: Kompas. 23 January 2003; Sinar Harapan. 7 July 2003. 17 See Tempo Interaktif. 8 December 2003; Republika. 9 December 2003; Sinar Harapan. 9 December 16 2003. 18 See UN doc. CEDAW. Concluding Observations of the Committee on the Elimination of Discrimination Against Women: India. 01/02/2000. A/55/38, (Concluding Observations/Comments), para. 34; CERD/C/304/Add.13. 17 September 1996. Concluding observations of the Committee on the Elimination of Racial Discrimination : India. 17/09/96.CERD/C/304/Add.13. (Concluding Observations/Comments), para. 9. See also site Supreme Court of India. “Jurisdiction of the Supreme Court”. Text at http://supremecourtofindia.nic.in/new_s/juris.htm for further explanation on PIL in India, could be seen on Mamta Rao. 2004. Public Interest Litigation in India – A Renaissance in Social Justice. 2nd Edition. Lucknow (India): Eastern Book Company, especially on procedure innovation, p.p. 266 – 284. 6 B. Court Decision (judicative institution) Binds the Government The decision of court’s institutions, Supreme Court and the lower court body and the Constitutional Assembly, especially those that relates with District Election’s (Pilkada) disputes, in majority are dominated by the government. In recent, for instance, the inauguration of major and the major’s deputy in Depok, Nur Mahmudi Ismail and Yuyun Wirasaputra, which finally was inaugurated by the government on January 26th 2006. A brief on Depok’s Pilkada law case. On July 6th 2005, the counterpart of Nur Mahmudi – Yuyun Wirasaputra had been approved by Depok’s KPUD (District General Election Commission) as the winner of Depok’s district election. The decision was aborted by West Java Court of Appeal (August 4th 2005) which in its decision pronounced Badrul Kamal – Shihabuddin Ahmad counterpart. In the following progress, the Supreme Court had accepted the review which set forward by Depok’s KPUD (December 16th 2005). In its decision the Supreme Court approved Depok’s KPUD judicial review, and to cancel the decision of West Java Court of Appeal, and decided to abandon Badrul Kamal’s objection. 19 Badrul Kamal’s counterpart had also gone through law efforts by submitting the case into Constitutional Assembly. Again, this application to abort the Supreme Court decision was rejected by Constitutional Assembly. 20 Depok’s district election precedent has shown important fact: that judicative institution’s decision binds the executive institution. Therefore, it is necessary to keep promoting and to put law efforts in order to create the justiciability Hak Ekosob, including demanding the government of fulfilling basic rights of Hak Ekosob - especially right to education, housing rights, rights to health, right to (at) work and land rights including right to water. 19 20 See Indonesian Supreme Court decision No. 01 PK/Pilkada/2005. See Indonesian Constitutional Court decision No. 001/PUU-IV/2006 and No. 002/SKLN-IV/2006. 7 C. Legal Aid Law: An Umbrella to the Drought of Free Legal Aid Assistance According to CBS (Central Bureau Statistic), the approximate number of poor people in Indonesia reached 62 millions or 28.44 percent of total 218 millions people.21 What does it imply? Legal Aid Assistance would be upcoming by those who seek for justice, which unable to maintain its constitutional rights and its legal rights, including poor people that faced law suits and those who are going to submit their cases in the court. It can be said that the number of advocate is less in order to service the poor people’s access for justice! Beside the less number of advocates, the other problems are also related with “the slackening of lawyer’s social role”.22 Therefore the answers for these problems are: to give basic law to the legal aid workers that enable them to litigate in the court, while on the other side the advocate organization should encourage the enhancement of its member social role. According to the Supreme Court’s data, the numbers of advocate that join profession organization are estimate 14,000 people. 23 For instance, Asosiasi Advokat Indonesia – Association of Indonesian Advocate (AAI), per July 2004 declared that there were 3,933 advocates who joined the organization24; while according to an AAI’s site claimed of 6,000 advocate members. 25 AAI is one of the advocate’s profession organizations that mandate by Law No. 18/2003 regarding Advocate to establish an Indonesian advocate organisation – nowadays called as Peradi (Perhimpunan Advokat Indonesia – Association of Indonesian Advocate).26 The other organizations are Ikatan Advokat Indonesia (IKADIN), Ikatan Penasihat Hukum Indonesia (IPHI), Himpunan Advokat dan Pengacara Indonesia (HAPI), Serikat Pengacara Indonesia (SPI), Asosiasi Konsultan Hukum Indonesia (AKHI), Himpunan Konsultan Hukum Pasar Modal (HKHPM) and Asosiasi Pengacara Syariah Indonesia (APSI). . 21 See Media Indonesia Online. 16 September 2005. Quoted from Kompas. 26 February 2004. 23 Kompas. 2 August 2004. 24 Ibid. See also AAI DPC DKI Jakarta. “Sejarah Asosiasi Advokat Indonesia” Text at http://aaidkijakarta.or.id/html/sejarah.html 25 See AAI’s DPC Denpasar site. Text at http://www.aai-denpasar.or.id/ 26 See UU No. 18/2003, Article 32(3). 22 8 Lack of “lawyer” and “advocate” which help to give free legal aid assistance, has long been perform not only by “lawyer” and “advocate” which involve in legal aid activities but also by the “legal aid workers”, “public lawyer defender” or “human rights defender” that do not have any license to litigate on court. Long before the Special Education for Advocate Profession (Pendidikan Khusus Profesi Advokat (PKPA)) put into effect, Indonesian Legal Aid Foundation – Legal Aid Institute (YLBHI – LBH) has been organized Advocacy and Legal Aid Training (Karya Latihan Bantuan Hukum (Kalabahu)). In the following development, YLBHI are given permission by Peradi to organize advocate education; there were no obstacles for those who hold the YLBHI’s-graduated certificate to join the current advocate profession’s examination. Legal Aid law that gives opportunities to the legal aid workers and its clients: are absolute! In contrary, Legal Aid Law, if it’s settled, would not harm the law benefits and profit advocate’s benefits, as because: Firstly, the existence of some limitations, like in the case of YLBHI-LBH, the legal aid workers for representing case before the court. In normative way, the chairs meeting of YLBHI on 2003, has put criterions of holding the case, that not to help the people or group which considered, especially the perpetrator on crime against human rights; crimes against environment; perpetrator of violence crime, especially women. These criterions are the most prudent of the principles and concept regarding structural legal aid movement (bantuan hukum struktural (BHS)) which developed by LBH’s advocate and workers.27 Second, legal aid workers are burdened to perform litigation advocacy which characteristically based on “public interest litigation”, or in short, litigation advocacy that perform to protect the interest of the people. In other words, the “client market” of advocate in general is not decrease at all. 27 See for instance “Indonesian Legal Aid Foundation: Struggling for Democracy and its Own Sustainability”, in Focus. Newsletter of the Asia-Pacific Human Rights Information Center (Hurights Osaka) December 2004 Volume 38, pp. 2 – 4. 9 Third, automatically, activities to represent clients before the court, can not be perform anymore when some one, when s/he was already “out” or no longer working full time in the organization or legal aid institution. If s/he wants to keep litigate, then s/he have to up hold Law No. 18/2003 on Advocate. D. Concluding Remarks The idea to encourage Legal Ais Law, which also formulated on YLBHI’s Annual National Meeting in Denpasar 2005, have its primary goal, that is “to widening the access of poor people and law-blind people for justice, and personal and group that become the victims of crime against human rights and abuse of power.” And, not merely cultivating in the “advocate” field and taking over a role of profit advocates. Moreover, Legal Aid Law would strengthen the role of advocate as it’s mentioned in Article 22(1) Law Advocate. Government Regulation on mechanism of free legal aid assistance, as mentioned in this article, would contain regulation which specifically regulate the obligation of advocates and advocate organization. This Government Regulation is not arrange the legal aid workers who are working full time (full-time workers) in organization and legal aid institution, such as YLBHI-LBH, which traditionally and have “core competence” for a long time on providing legal aid assistance to the people for free. In human rights perspective, Legal Aid Law (UU BH) will be very useful to the extension of promotion and legal efforts through court to enhance the fulfillment of economic, social and cultural rights of people in this country: especially in the context to promote justiciability of Hak Ekosob. The legal aid workers are no longer “hide and seek” with judges just to debate on “license card”, while defending its poor clients or while they were giving legal assistance to the victims of crime against human rights. Hopefully this good and sincere intention can be understood by the policy maker (parliament and government), therefore the bill of legal aid act could be discussed in DPR RI in the near future: 10 can be suggested to become an initiative bill submitted by parliament. If the controversial bill of APP (pornography and porn-action) are being discussed, why not the bill of BH (Legal Aid)?***** 11 References Rao, Mamta. 2004. Public Interest Litigation in India – A Renaissance in Social Justice. 2nd Edition. Lucknow (India): Eastern Book Company. Zen, A. Patra. M. 2005. Tak Ada Hak Asasi yang Diberi. Jakarta: YLBHI dan CIDA. -----------. “Indonesian Legal Aid Foundation: Struggling for Democracy and its Own Sustainability”, in Focus. 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The Constitutional Court decision No. 026/PUU-III/2005 (22 Maret 2006): Pengujian UU No. 13/2005 tentang Anggaran Pendapatan dan Belanja Negara (APBN) tahun anggaran 2006. ----------- No. 011/PUU-III/2005 (19 Oktober 2006) tentang Pengujian UU No. 20/2003 tentang Sistem Pendidikan Nasional terhadap UUD 1945. ----------- No. 001/PUU-IV/2006 (25 Januari 2006): Pengujian kewenangan UU No. 32 tahun 2004 tentang Pemerintah Daerah. ----------- No. 002/SKLN-IV/2006 (25 Januari 2006): Sengketa kewenangan antara Badrul Kamal dan Syihabuddin Ahmad terhadap KPUD Depok. 12 UN doc. E/CN.4/2003/5. 3 March 2003. Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari, submitted in accordance with Commission resolution 2002/21. E/CN.4/Sub.2/2002/18. 9 August 2002. The Social Forum. Report of the Chairman-Rapporteur, José Bengoa, in accordance with Sub-Commission resolution 2001/24. 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Teks di http://www.mediaindo.co.id/berita.asp?id=75490 Media Indonesia. 23 March 2006. “Pemerintah Tak Bisa Langsung Tingkatkan Alokasi Dana Pendidikan” Republika. 4 March 2006. “Korban Priok Sulit Dapat Kompensasi”. -----------. 9 December 2003. “Hakim Terima Sebagian Gugatan Kasus Nunukan”; Sinar Harapan. 9 December 2003. “Pemerintah Belum Maksimal Tangani Buruh Migran”. 13 -----------. 7 July 2003. “Sidang Lanjutan Kasus Nunukan. Eksepsi Kuasa Hukum Pemerintah Dinilai Tidak Jelas”. Tempo Interaktif. 2 Agustus 2004. “Pemerintah Bangun Rumah Bagi Korban Gusuran TPU Pondok Kopi”. Teks di http://www.tempo.co.id/hg/ekbis/2004/08/02/brk,20040802-51,id.html -----------. 8 December 2003. “Hakim Menolak Gugatan Kasus Nunukan”. Teks di http://www.tempo.co.id/hg/nasional/2003/12/08/brk,20031208-47,id.html. -----------. 21 October 2004. “Walikota Diwajibkan Membangun Kembali Rumah di Pinang Ranti”. Teks di http://www.tempo.co.id/hg/jakarta/2004/10/21/brk,20041021-33,id.html. -----------. 12 October 2004. “Puluhan Rumah di Pinang Ranti http://www.tempo.co.id/hg/jakarta/2004/10/12/brk,20041012-10,id.html Dibongkar”. Teks di -----------. 24 February 2004. “Hakim Minta Kodam Jaya Tidak Mematok Tanah di Pinang Ranti.” Teks di http://www.tempo.co.id/hg/jakarta/2004/02/24/brk,20040224-30,id.html; Others AAI DPC Denpasar. Teks di http://www.aai-denpasar.or.id/ AAI DPC DKI Jakarta. “Sejarah Asosiasi Advokat Indonesia” Teks di http://aai-dkijakarta.or.id/html/sejarah.html Supreme Court of India. “Jurisdiction http://supremecourtofindia.nic.in/new_s/juris.htm 14 of the Supreme Court”. Teks at