National Strategy

on Access to Justice

Authored by
Access to Justice Working Group
Ministry of National Development Planning/
National Development Planning Agency (BAPPENAS)

May, 2009
Title : National Strategy on Access to Justice

Authored by : Access to Justice Working Group

Coodinators : 1. Diani Sadiawati, SH., LL.M

2. Mas Achmad Santosa, SH., LL.M.

Members : A. Patra M. Zen, SH., LL.M.

Aryo Bimmo SP., SH., LL.M.
Bobby Rahman, SH., LL.M.
Indro Sugianto, SH., MH.
Myrna A. Safitri, SH., MSi.
Muji Kartika Rahayu, SH.
Nenad Bago, LL.M.
Noor Andrini Wuryandari, SH., MH.
Paulus Agung Pambudhi, MM., Drs.
Pungky Sumadi, MCP., Dr.
Rahma Iryanti, MT. Dra.
Sulistyowati Irianto. Prof. Dr.
Santi Kusumaningrum, S.Sos., MSi.
Taufik Rinaldi, SH.
Yunety Tarigan, SE.
Zulfikar Judge, SH., Sp.N., M.Kn.

1st Printing, May 2009

Cover Image : LEAD Project;

Edison Paulus (finalist of BAPPENAS-UNDP MDGs
Photo Competition)

Publisher : Ministry of National Development Planning/

National Development Planning Agency
Directorate of Law and Human Rights
Asmen Building, 1st Floor
Jl. Taman Suropati No. 2, Jakarta 10310, Indonesia
Phone: 021-39136207; Facsimile: 021-3145374
Website: http://www.bappenas.go.id
 Abbreviations
APBD : Regional Development and Expenses Budget
APBN : National State Development and Expenses Budget
ASEAN : Association of South East Asian Nations
BAPPENAS : National Development Planning Agency
BHPN : National Law Development Agency
BKTRN : National Board on Coordination of Spatial Planning
BLK : Institute of Professional Training
BLKI : Ministry of Industry
BNP2TKI : National Authority for the Placement and Protection of Indonesian Overseas
Workers
BPKP : State Financial Bureau
BPN : National Land Agency
BPS : National Bureau of Statistics
CEDAW : Convention on the Elimination of all forms of Discrimination Against
Women
CLC : Community Legal Centre
CLEP : Commission on Legal Empowerment of the Poor
DAK : Special Allocation Fund
DAU : General Allocation Fund
DPOD : Advisory Body for Regional Autonomy
DPRD : Regional People’s Representative Council
ICEL : Indonesian Centre for Environmental Law
IKAHI : Indonesian Judges’ Association
ILO : International Labour Organisation
KKN : University Student Internship Programme
LBH : Legal Aid Institute
LBH APIK : Legal Aid Institute for Women
LEAD : Legal Empowerment and Assistance for the Disadvantaged Project
LHKPN : Report on Government Officials’ Wealth and Assets
LTDP : Long-Term Development Plan
MoU : Memorandum of Understanding
MTDP : Medium-Term Development Plan
NGO : Non-Governmental Organization
PAD : Regional Income
PNPM Mandiri : National Programme for Community Empowerment
Police RPK : Police Special Service Room
PPK : Rural Development Programme
P2DTK : Underdeveloped and Special Regions Development Acceleration Programme

National StrategY ON access to justice i

P2KP : Urban Poverty Handling Programme
P2TP2A : Integrated Service Centre for Women and Children’s Empowerment
P3K Hukum : Emergency Legal Aid
RAN-PK : National Action Plan on the Eradication of Corruption
REDD : Reducing Emissions from Deforestation and Forest Degradation
RIA : Regulatory Impact Analysis
UNICEF : United Nations Children’s Fund
UNDP : United Nations Development Programme
UUPA : Law on Agrarian Reform
WCC : Women’s Crisis Centres
YLBHI : Indonesian Legal Aid Foundation

ii National StrategY ON access to justice

 FOREWORD
State Minister of National Development Planning/
Chief of National Development Planning Agency

Assalamualaikum Warrahmatullah Wabarakatuh

Greetings to All

Grace and glory to God Almighty for his blessings and bestowals, the National Strategy on Access
to Justice has now been completed. As the Minister of National Development Planning / Chief of
the National Planning and Development Agency (BAPPENAS) representing the Government of
Indonesia, I would like to extend my gratitude for the dedication of the team that worked from
November 2007 until January 2009 on this Strategy. I am aware that the manuscript has gone through
an exhaustive preparation process, therefore I would like to express my most sincere appreciation to
the team and to all stakeholders whose support has enabled the successful completion of this report.
I am very hopeful that the National Strategy on Access to Justice will become more than a mere
strategy on paper, and that it will address the realities faced by our nation –– particularly its poor and
marginalised communities – both directly and indirectly, on a daily basis.

The fundamental question of this report is how to ensure that all Indonesians understand their rights
as guaranteed in the Constitution, so that they can enjoy the full benefit of all the services provided
by a law-bound state. By empowering the community, we hope to improve people’s lives and thus
reflect the just and prosperous community described in the Pancasila and Indonesian Constitution.

Indonesia has been an independent nation since 1945, and it now has the strength to address all the
challenges it faces in achieving prosperity and justice for its people. Whether we are successful
however, will depend on the efforts of all development stakeholders: the Government, the people,
and the business world. It also depends upon the capacity Indonesia has to address these issues in the
midst of increasing regional autonomy and boundless globalisation.

We should understand the Indonesian reformation as it began in 1997 as a continuing achievement.

It is a demonstration of the Indonesian people’s will to make fundamental changes in all forms of
public service; presently, however, these changes still fall short of the people’s desires.

This is why the effort of every state official – whether of the executive, legislative, or judicial branch
– is essential to ensuring the prosperity, welfare, and ultimately the quality of Indonesian society as
a whole. We hope that the National Strategy on Access to Justice will become a part of the effort to
eradicate poverty that the Government is pursuing through the independent National Programme of
Community Empowerment. It follows that the active cooperation of all development stakeholders
in achieving a just and prosperous community is a non-negotiable pre-condition in implementing

National StrategY ON access to justice iii

overall national development as envisioned in the National Long Term Development Plan (LTDP)
2005-2025.

As a nation of 225 million people, five large islands, tens of thousands of smaller islands, and just as
many ethnicities, Indonesia has been affected significantly by the advent of regional autonomy. It has
been beneficial because basic public services delivered by local governments are more responsive
to the needs of local communities and therefore more effective in improving people’s quality of life.

Although there are various obstacles, we must continue to overcome them, just as have developed
countries around the world. The question is simply one of how fast we can achieve our goals. The
answer will depend largely on the efforts of all stakeholders in the development of our beloved
nation—from the central and local governments to the community itself. Just as our neighbouring
countries have become aware of the importance of national integrity in determining development,
Indonesia must now begin by implementing this National Strategy on Access to Justice. Our efforts
will reflect the strength and integrity of Indonesia’s people, and their desire to break free from poverty
once and for all.

The strategies contained in the National Strategy on Access to Justice (with regard to land and natural
resources, women and the law, local governance, legal aid, children, legal and judicial reform, labour,
and the poor and marginalised) have become an important component of the LTDP 2010 - 2014. To
gauge the level of community access to justice resulting from these strategies, we intend to measure
progress in the development of: (1) normative legal frameworks; (2) legal awareness; (3) access to
appropriate forums; (4) effective handling of grievances; (5) remedies obtained; and (6) the extent to
which poor and marginalised peoples have overcome their poverty.

I hope that our dedicated efforts in achieving a just and prosperous society through implementation
of the National Strategy on Access to Justice will always be blessed by the One Supreme God.

Wassalamualaikum Warrahmatullah Wabarakatuh

State Minister of National Development Planning/

Chief of National Development Planning Agency
H. Paskah Suzetta

iv National StrategY ON access to justice

 ACKNOWLEDGEMENTS
The National Strategy on Access to Justice is the work of the Access to Justice Working Group,
convened by BAPPENAS and facilitated by the United Nations Development Programme-LEAD
Project.

The State Ministry for National Development Planning/BAPPENAS thus would like to thank UNDP
Indonesia, through LEAD Project led by Thomas Crick, and supported by Abdul W. Situmorang,
Risya Kori, Yesua Pellokila and Agus Loekman for the contributions, concepts and facilitation in
organising activities during the development of the National Strategy. We also extend our thanks to
the donors, the Swedish International Development Cooperation Agency, Royal Norwegian Embassy
and Royal Netherlands Embassy, for their close cooperation and funding support.

We would also like to express our deepest gratitude to the distinguished members of the Access
to Justice Working Group who have significantly contributed their thoughts to the development of
National Strategy. The Working Group consists of Diani Sadiawati (BAPPENAS) as the Chairperson,
Mas Achmad Santosa (UNDP) as the Vice Chair, and the members Pungky Sumadi (BAPPENAS),
Rahma Iryanti (BAPPENAS), Aryo Bimmo (BAPPENAS), Noor Andrini (BAPPENAS), Zulfikar
Judge (LEAD Strategy Development Facilitator), Sulistyowati Irianto (University of Indonesia),
Myrna Safitri (Ph.D Student, Leiden University), Indro Sugianto (ICEL), Muji Kartika Rahayu
(KRHN), Arief Patra M. Zen (YLBHI), Paulus Agung Pambudhi (KPPOD), Taufik Rinaldi (World
Bank Justice For The Poor), Santi Kusumaningrum (UNICEF), Sulastri Helmi (Law and Human Rights
Agency, Southeast Sulawesi), and Johny N. Simanjuntak (National Commission on Human Rights).
Further, our appreciation also goes to all staff within the Directorate of Law and Human Rights-
BAPPENAS, Bobby Rahman (LEAD Project), Mohamad Kusadrianto (UNDP), Yunety Tarigan
(LEAD Project), Regi Wahono (UNDP), Verena Riyaningsih (LEAD Project), Nanette Herawati
(LEAD Project), Riana Nedya (Event Administrator), Sandra Buana Sari (Event Administrator),
Clara Widyasari (Event Administrator) and Nenad Bago.

We would also like to thank all colleagues who participated in the national consultations on the
National Strategy, held in Jakarta, Bali, Medan, and Makassar. We express our appreciation to all
Regional Development Planning Agencies (BAPPEDA) at provincial level from across Indonesia
who participated in the consultations, and also to all Departments, Institutions, Ministries and CSOs
who gave their input and perspectives to make the draft National Strategy even more comprehensive.

In addition, warm thanks go to colleagues who provided valuable input to the draft National Strategy
during a high-level consultation at BAPPENAS in February 2009. They include Dr. Ir. Joyo Winoto,
Head of National Land Administration Agency, Dr. Prasetjono Widjojo, Deputy Minister for Poverty,
Labour and Small Enterprise-BAPPENAS, as well as the Ministry of Women Empowerment,

National StrategY ON access to justice v

National Police, Attorney General’s Office, Ministry of Social Affairs, Ministry of Forestry, Ministry
of Law and Human Rights, Ministry of Internal Affairs and Office of Presidential Advisory Board.

We also recognise the contributions provided by the Governors of Central Sulawesi, Southeast
Sulawesi and North Maluku, as well as all Regents and Head of Districts within those three provinces,
for their the great support in strengthening access to justice in their respective regions. Hence, we
would like to thank them, too.

Finally, thank you to all the numerous parties, who cannot be listed individually, for their contributions
to the development of the National Strategy.

vi National StrategY ON access to justice

 EXECUTIVE SUMMARY
The importance of strengthening access to justice for all people, especially the poor and marginalised,
is now beyond question. Indonesian citizens have yet fully to realise the fulfilment of their rights
under the Constitution. Many activities have indeed been undertaken to strengthen community
empowerment in development, particularly in social and economic fields. While social and economic
rights are fundamental for the people of Indonesia, they are best attained alongside efforts to
strengthen legal rights. Thus, implementation of the rule of law in Indonesia essentially depends on
the implementation of access to justice.

The enforcement of principles of justice is one of the features of the rule of law. Justice is a basic
human right in accordance with the principle of equality before the law. All people have a right to
obtain effective remedies for the breach of their rights. Likewise the State has an obligation to ensure
the protection of people’s rights. This affirms that justice is a human right whose fulfilment must be
respected and guaranteed. Affirmative actions to provide access to justice through a human rights-
based approach must be put in place, not to create discrimination, but rather to stand as temporary
“support” for the poor and marginalised until they themselves are in a position to attain access to
justice.

The focus of access to justice has been evolving. Earlier, access to justice was understood mainly to
refer to legal aid institutions. It was then recognised that a variety of actors have an integrated role
to play in providing access to justice to the poor. These include relevant state institutions such as the
public prosecutor, courts, ombudsman and ministries for public services, as well as CSOs engaged in
community empowerment. Further development in realising access to justice entails steps to support
ongoing reforms to achieve the larger goal of improving the legal system to achieve the rule of law.

The concept of access to justice focuses on two basic objectives of a legal system: (1) that it is
accessible to people from all levels of society; and (2) that it is able to provide fair decisions and rules
for people from all levels of society, either individually or collectively. The fundamental idea to be
mainstreamed in this concept is the achievement of social justice for all citizens.

All actors, both governmental and nongovernmental, need to contribute to implementing the concept
of access to justice. Access to justice is guaranteed within the human rights enumerated in articles
1(3), 28D(1) and 28I(1) of the Indonesian Constitution. The Constitution also affirms the State’s
obligation to fulfil and protect the rights of citizens to obtain access to justice. The rights and
obligations set out in the Constitution represent an integrated approach to attain the objective of
establishing the Republic of Indonesia, which is to achieve social justice for all Indonesians, and is
indeed also the objective of the concept of access to justice. Therefore, the most important elements
in defining access to justice are the integration of roles of all the relevant actors and the consideration
of the particular conditions of Indonesia, as will be discussed in the following chapters.

National StrategY ON access to justice vii

Access to justice in the Indonesian context refers to the circumstances and processes whereby
the State guarantees the fulfilment of fundamental rights based on the Constitution and universal
principles of human rights, and the ability of all citizens (claims holders) to know, understand, be
aware of and make use of these basic rights, through formal and informal justice institutions that are
supported by the existence of accessible and responsive public complaint mechanisms, in order to
obtain the resources to improve the quality of their lives.

The objectives of the State as mandated by the Constitution are to be achieved through the Long
Term Development Plan (LTDP). One of the visions put forth in the LTDP 2005-2025 is termed “A
Just Indonesia,” which means that development is to be carried out from the people, by the people
and for the people. All people should have equal opportunity in all aspects of their lives without
suffering discrimination in any form whatsoever.

In addition, moreover, Indonesia as part of the global community has moral and political commitments
to international agreements such as the Millennium Development Goals (MDGs) which must be
achieved by 2015. One of the goals in the MDGs is the alleviation of poverty, which needs new
strategies to accommodate the fulfilment and protection of human rights, justice and social welfare.

Poverty should be understood not only as economic incapacity, but also as the denial of basic
rights fulfilment and unequal ability to live with dignity. Empowerment of the poor in realising
fundamental rights, either through formal or informal mechanisms, can become a means of reducing
and overcoming poverty. Without the ability to defend or struggle for these rights, the poor cannot
defend and develop their lives with dignity.

The National Strategy on Access to Justice examines how problems with rule of law can contribute
to the existence of poverty. The alleviation of poverty is acknowledged to require improvement of
the legal system, both in the substantive law and in the institutions for legal enforcement and legal
empowerment within the framework of democratic rule of law.

Access to justice is analysed in terms of six elements, namely: (i) the normative framework; (ii) legal
awareness; (iii) access to appropriate forums; (iv) effective grievance handling; (v) attainment of
satisfactory remedies; (vi) overcoming problems of poverty of poor people and other disadvantaged
groups. These elements are the reference points used to evaluate eight selected problems of access
to justice in Indonesia: (i) Access to Justice in the Legal and Judicial Reform sector; (ii) Access to
Justice in the Legal Aid sector; (iii) Access to Justice in the Local Governance sector; (iv) Access
to Justice in the Land and Natural Resources sector; (v) Access to Justice for Women; (vi) Access
to Justice for Children; (vii) Access to Justice for Labour; and (viii) Access to Justice for Poor and
Disadvantaged Groups.

Reform in the legal and judicial sector must be pursued continuously, because this field is the main
pillar in implementing access to justice. Moreover the Constitution affirms that our State must comply
with the rule of law. Legal and judicial reform should be viewed comprehensively as encompassing
the whole system of substantive law, legal structure and legal culture. Although great effort has
been poured into improving the law and judiciary, various problems and challenges still remain. For
instance, laws often contravene the Constitution and lack harmonisation among themselves, which
impedes access to justice. The main cause of lack of harmonisation of laws is weakness in executive
and legislative institutions as the main supporting institutions in the law drafting process.

viii National StrategY ON access to justice

As to legal structure, ongoing reforms in justice institutions (the police, public prosecutors and courts)
have failed to make a significant impact in changing officials’ conduct, improving community legal
services or increasing public trust. This is evident from acts of corruption and ethical misconduct
for which justice officials are frequently responsible. Failure to overcome these problems is also
attributable to the weak functioning of state institutions for external supervision, such as the Police
Commission, the Prosecutorial Commission and the Judicial Commission.

Likewise, as to legal awareness, public participation in legal and judicial reform continues to
encounter barriers, among which are the absence of access to information and to legal protection.
Although both obstacles have been addressed by rules and regulations, in practice such rules have
not yet worked effectively. Community efforts to achieve extra-judicial dispute resolution, such as
through adat (customary) mechanisms and mediation, have not received serious attention from the
government. As a result, community legal awareness has not yet been manifested through the use of
channels for conflict resolution and dispute settlement in achieving access to justice.

Therefore, a more comprehensive and systematic strategy for legal and judicial sector reform is
needed, to be directed at facilitating the community to obtain justice. Based on the above mentioned
problems, the relevant strategies are as follows: First, the development of paradigms and directions
of legal development in accordance with the values of Pancasila and the Constitution. Article 1(3) of
the Constitution, which declares Indonesia as a rule of law state, must be elaborated further to answer
the question of which legal system best fits the legal character of the Indonesian people.

Greater clarity here will determine the direction of legal development, as set forth in Law No.
17/2007 regarding Indonesia’s Long Term Development Plan (2005-2025). The Constitution’s Fourth
Amendment also underscores the commitment of Indonesia to establishing a rule of law state. From
canvassing examples and characteristics of rule of law states in the world, it is clear how broad and
flexible the meaning of rule of law state can be. A rule of law state can encompass and make space
for various political ideologies, either liberal or otherwise, and can also accommodate various forms
of the exercise of power, either coercive or not. Therefore, it is very important to realize that the
Indonesian rule of law state is meant to be not just a label, but a genuine process befitting indonesia,
internalised into its customs, traditions, values, cosmology and the idea of modern Indonesia.
Second, the development of the formal legal education system with social justice perspectives. This
strategy is expected to produce a legal profession with integrity and sensitivity towards poor and
marginalised people. In addition, formal legal education institutions should be more active in the
roles of community education and exercise of supervision over justice institutions.

Third, the improvement of legislative politics. This strategy is understood in terms of both process
and substance. The procedural dimension requires transparency and involvement of stakeholders in
the formulation of law. At the same time, the substantive dimension aims to ensure that every law
is in accordance with the Constitution and principles of human rights, and to avoid overlapping or
internally conflicting laws. Therefore, the harmonisation of laws needs to be carried out. Fourth, the
sharpening, strengthening and comprehensive implementation of the reform agenda for the justice
institutions, whether the police, public prosecutors, judiciary, bureaucracy, or state commissions that
carry out external supervision tasks such as the Police Commission, the Prosecutorial Commission and
the Judicial Commission. The intended goal is to deter breaches of professional ethics and corruption
from continuing to occur in those institutions, so that the community can rely on improved, easier to
access and more professional justice services. Fifth, the strengthening of community awareness and
participation in the formulation and supervision of implementation of public policy. This strategy
involves strengthening the roles of legal aid workers and paralegals, as well as the role of the State

National StrategY ON access to justice ix

in providing real support such as access to information, legal protection and government funding to
protect and support legal advocacy work.

In the legal aid sector, problems exist due to the absence of legislation specifically addressing legal aid
for the poor, inconsistencies in the enforcement of regulations by justice officials in relation to civil
litigation by indigent persons and in protecting the basic rights of the accused in the criminal justice
system, and the weakness of the formal legal education system in developing a legal profession with a
critical awareness of policies related to people’s basic needs. So far, legal aid activities are pioneered
by civil society, and government support especially with regard to funding has not been seriously
put into practice. Meanwhile, the community’s demand for legal aid services exceeds the existing
capacity of civil society organisations to provide such services. Therefore government services and
involvement are important in administering legal aid, as are efforts to empower the existing legal aid
organisations and legal consultancy centres spread out in almost all universities across Indonesia, as
these offer latent potential for overcoming the limited availability of legal services for poor people
and other disadvantaged groups.

The strategic choices in the legal aid sector are: First, the fulfilment of the right to legal aid. This
means ensuring that poor and marginalised people can access to legal assistance when confronted
with legal issues and can obtain legal defence by advocates when they claim their rights in court.
Second, the formulation of legal aid legislation through the development of a comprehensive plan
for the community’s right to legal aid, consisting of: (i) formulation of legislation that guarantees
access to legal aid and legal services for the poor; (ii) development of institutional capacity and
legal resources; (iii) increased funding to promote access to legal aid; (iv) capacity development
for paralegals as part of community empowerment efforts; (v) development of legal education that
supports the implementation of legal aid mechanisms; and (vi) providing incentives to motivate and
attract the interest and involvement of a new generation of legal aid activists.

The National Strategy on Access to Justice highlights the priority of broadening access to justice for
poor and marginalised people by implementing non-discriminatory policies as well as affirmative
actions. This requires the realisation of basic preconditions for legal aid services, namely: First,
implementation of the principles that services are “obligatory” and “free of charge” – or at least
“affordable” -- in the fulfilment of access to justice for the poor. Second, the ability of poor people to
defend and fight for their constitutional and legal rights without discrimination based on poverty. In
human rights terms, this condition is guaranteed by the recognition of the equal rights of all before
the law and government. Third, assurance that the poor encounter not barriers, but instead facilitation
of access to legal resources on an equal basis with the rich and powerful.

The administration of local governance to attain the three main objectives of local autonomy
through the decentralisation reforms of the past eight years, namely the enhancement of democracy,
improvement of basic public services and access to economic resources, has faced a number of
regulatory and bureaucratic problems. The main problems that have been identified are: budget
inefficiency due to weak local government structures and working mechanisms; poor delivery and
quality of decentralised budgets; ineffective deconcentration and undertaking of assistance; rapid
proliferation of new political districts; and low quality of local policymaking. These problems result
in lack of community access to basic public services as an important concern of access to justice. to
overcome these obstacles, the strategy for increasing access to justice in the local governance sector
is constructed on four main pillars: (i) increased efficiency and enhancement of professionalism
within the bureaucracy; (ii) harmonisation and enhancement of the quality of local policies based
on the principles of transparency, participation and accountability; (iii) development of policies

x National StrategY ON access to justice

on utilisation of national and local budgets for budgetary optimisation; and (iv) management and
enhancement of the quality of decisionmaking about the proliferation of political districts.
Achieving access to justice in the land and natural resources sector faces many complex problems,
including among others environmental degradation, poverty, conflict, the liberalisation of natural
resources management and lack of integration among state institutions. The root of these problems
is the existence of overlapping regulations and conflicts of law, and a lack of normative regulations
providing recognition, protection and remedies for poor, indigenous and other marginalised groups.
An outmoded paradigm of legal development that puts aside the social context in the formulation
and enforcement of the law, a lack of specific institutions empowered to resolve land and natural
resources conflicts, as well as the non-availability of comprehensive environmental restoration
mechanisms, further restrict the access of poor and disadvantaged groups to property and natural
resources to improve their welfare.

The strategy on access to justice in the land and natural resources sector encompasses: (i) development
of an integrated and comprehensive framework of law and policy that is based on social and
environmental justice, and the improvement of the legislative process to open up wider participatory
space for poor and adat (customary) users of land and other natural resources; (ii) harmonisation of
spatial planning and permits by central and local government to ensure the ability of poor and adat
(customary) communities to safeguard their rights and to access the benefits of their lands and natural
resources; (iii) creation of dispute resolution mechanisms for land and natural resources conflicts
that are able to protect the rights of poor and disadvantaged groups, including the transformation of
conflicts into schemes of partnership among stakeholders; (iv) implementation of agrarian reform
in a coordinated and comprehensive manner; (v) recognition and protection of the rights of adat
(customary) communities and of poor and other marginalised people to land and natural resources;
(vi) improvement of the quality of public services and complaint mechanisms; (vii) restoration of the
physical and social environment upon which people’s lives are dependent.

Amongst issues of access to justice for women in Indonesia, certain achievements include: First,
the development of women’s movements along with broad civil society movements in the struggle
for women’s rights in the areas of politics, law, economics, culture and environment, which have
marked the progress of democracy in Indonesia. Second, the creation particularly during the Reform
era of legal instruments that provide protection for women. Third, the growth of jurisprudence that
embraces gender perspectives.

However, a key problem remains in the women’s sector, namely the lack of sensitivity to gender
within formal institutions. Poor and uneducated women experience difficulties in claiming and
defending their rights before the law, including in court processes. Women’s perspectives are still
poorly represented and their experiences are still ignored within decision-making structures –
including at the local level – which results in laws and policies, especially in budgeting, that are
disadvantageous for women. Similar problems also occur in various forms within informal justice
mechanisms, where a strong patriarchal culture hinders women’s access to justice.

Proposed strategies for the future are: First, revisiting local regulations that are biased against women.
Second, the inclusion of women in decision-making processes of lawmaking and budgeting by taking
into account women’s needs and experiences (gender budgeting). Third, increased support for the
initiative on “criminal justice System – Handling of Violence against Women,” which organises
coordination among justice institutions, relevant government agencies and civil society organisations
in handling cases of violence again women. Fourth, increased awareness of justice officials on issues
of access to justice for women. Fifth, “engendering” legal education curricula.

National StrategY ON access to justice xi

The unique status and place of children within society – politically, socially, as well as culturally –
position children as a group that needs special protection. Their physical and mental development
places them at risk of abuse. Violence, mistreatment and exploitation experienced by children
contribute to their powerlessness and poverty. Therefore, tackling these problems from a children’s
justice perspective is one of the important priorities in eradicating poverty. When children experience
violence, mistreatment or exploitation, they become at risk of entering the justice system, either as
victims, witnesses or perpetrators of crime. a series of obstacles that hamper the achievement of
access to justice for children are: insensitivity and lack of understanding of children’s rights on the
part of law enforcement and justice providers, the lack of special structures and mechanisms for child
protection in the formal and informal justice systems, children’s lack of capacity to voice and claim
their rights and low levels of awareness in the community about child protection.

The integration of children’s issues in the National Strategy is beneficial for the entire package of
reform efforts. The fulfilment of human rights and judicial reforms as a whole can only be achieved
when children’s issues are integrated within reform initiatives and wider legal empowerment
processes, and when children have access to a juvenile justice system that is fair, transparent and
sensitive to child rights. Moreover, ideas that are experimental in terms of legal and judicial reform
may be more easily implemented initially in relation to children since children’s rights issues are
often less controversial than reforms applied to adults.

The strategies that have been identified to accelerate the achievement of the above goals are: First,
integration, development and enhancement of rules on children’s rights and protection along with
specific programmes and budget allocations. Second, a shift in the justice paradigm towards a
principle of restorative justice in favour of the best interests of the child, and from strengthening
the lawmaking process to improving monitoring and evaluation mechanisms. Third, strengthening
judicial capacity and children’s social welfare systems to ensure the enforcement, respect, fulfilment
and protection of children’s rights.

The complexity of problems in the labour sector has various causes, amongst them the weakness
of protection available for labourers in the child and migrant worker sectors. The lack of job
opportunities has increased the number of informal sector workers as the formal sector can no longer
accommodate them, and it has also increased the number of workers with a low level of education
migrating abroad.

Demand for jobs has risen higher than the available in-country vacancies, while workers are still in
high demand abroad. The opportunity for work outside the country is quite large, and an expectation
of higher wages has attracted labourers to work overseas. Regrettably most migrant workers are
unskilled labourers who are qualified only for low paid work as housemaids, construction workers,
farm workers, drivers, and factory workers abroad. In reality, migrant workers are vulnerable to
significant exploitation, such as abuse, rape, susceptibility to suicide and denial of pay for their work.
The low educational level of these workers is often blamed for the occurrence of such problems. Yet
the lack of comprehensive state protective systems, from both the origin and destination countries, has
also contributed to these problems. Indonesia’s labour protection system has not to date recognised
migrant workers in the informal sector, either domestic or foreign. The approach of destination states
toward legal enforcement of undocumented workers’ rights tends to place them in a disadvantaged
position, in which they risk becoming the target of inhumane treatment and handling of their cases
as illegal migrants.

xii National StrategY ON access to justice

In the child labour sector, the economic crisis has increased the number of underaged workers, also
known as school dropouts, who are forced to work to support their families. in reality, child workers
are deliberately targeted by employers because of their low wages and obedient behaviour.

The proposed strategies for access to justice for labour are: First, amendment of laws and regulations
to increase the protection of child labour and of migrant workers. Second, improvement of the quality
of protective and complaint handling mechanisms for workers. Third, acceleration of remedies
obtained for victims of labour abuse and violence. Fourth, increased access for migrant workers to
means of remitting money home, and fifth, development of a strategy to raise legal awareness among
workers.

Finally, although most development programmes undertaken by the government and civil society
are focused primarily on economic empowerment, the better approach should increase legal
empowerment as well through law and policies that are pro-poor. To prevent and alleviate poverty,
it is crucial for the poor to improve their access to seek and obtain remedies for their rights either
through formal or informal justice providers.

The problems of access to justice in the above mentioned sectors have concentrated on target groups
who are poor and otherwise marginalised by society. These are the predominant groups facing
obstacles of access to justice, whether in the realm of reform of justice institutions, legal aid, local
governance or land and natural resources. In the sectors related to women, children, and labour, again
the strategic focus is on the poorest and most vulnerable among them. Moreover, to strengthen still
further the message of the National Strategy, a discussion of poor and disadvantaged groups is also
positioned in a chapter of its own.

This National Strategy acknowledges that poverty in Indonesia and other places around the world
persists as a result of political, economic and legal structures that marginalise one group of society
compared to others. Achievement of justice for the poor is not only about technical legal problems, but
is also related to social and political issues, namely how to strengthen the weak bargaining position
of poor people in obtaining legal protection and services. This strategy relies on a presumption that
the paradigm of legal justice needs to be shifted to a paradigm of social justice in which legal reform
and justice share a common objective of protecting the economic, social and cultural rights of poor
people as well as strengthening their bargaining positions to secure access to justice, either through
formal or informal mechanisms.

To support the achievement of this central objective, this paper recommends three strategies for
strengthening access to justice for poor and disadvantaged groups. First, a change of paradigm in legal
education in indonesia from legal formalism to social justice, taking into account the challenges and
experiences of the community in obtaining justice. Second, in response to geographical challenges in
access to legal information for the poor, the strengthening of efforts to develop paralegalism across
indonesia. Third, the integration of government and nongovernmental initiatives to strengthen access
to justice within existing programmes of community empowerment across various sectors such as
health, education, roads and clean water, as well as economic support programmes and community
empowerment such as the programme of PNPM Mandiri (National Programme for Community
Empowerment).

The main message of the National Strategy on Access to Justice is a synthesis of various strategies
across eight sectors, namely legal and judicial reform, legal aid, local governance, land and natural
resources, labour, and access to justice for women, children, and poor and disadvantaged groups. Each

National StrategY ON access to justice xiii

issue is discussed with reference to the same components, namely the normative framework, legal
awareness, access to an appropriate forum, effective grievance handling, attainment of a satisfactory
remedy, problems regarding poor and disadvantaged groups, and the National Strategy.

There are four working principles in the National Strategy, namely:

1. Each component is equally important.
2. Synergy between the central and local governments.
3. Balance between formal and informal justice systems, and justice providers and justice seekers.
4. Monitoring, oversight and transparency.

There are six main strategies proposed here, namely:

1. A change of paradigm in legal development and the role of legal education in Indonesia.
2. Acknowledgment and support for legal aid activities and development of paralegalism in
Indonesia.
3. Improvement of legislation and budgetary politics to support access to justice.
4. Formulation and implementation of Minimum Standards of Service in public services.
5. Development of public complaint and dispute settlement mechanisms for claims holders of public
services.
6. Strengthening and empowering community-based justice systems.

Comprehensive action plans are attached and form an inseparable part of the National Strategy.

xiv National StrategY ON access to justice

 TABLE OF CONTENTS
Foreword............................................................................................................................................. iii
Acknowledgement............................................................................................................................... v
Executive Summary........................................................................................................................... vii

Table of Content................................................................................................................................. xv
List of Illustration............................................................................................................................. xix
Terminology...................................................................................................................................... xxi

CHAPTER I: INTRODUCTION......................................................................................................... 1
1.1 Background................................................................................................................................ 1
1.2 Legal Development and Access to Justice: Hopes and Challenges........................................... 2
1.3 Towards people-Oriented Access to Justice.............................................................................. 4
1.4 The Conceptual Framework of Access to Justice in Indonesia................................................. 4

CHAPTER II: CONCEPTS AND METHODOLOGY........................................................................ 7

2.1 The Process of Access to Justice in Indonesia........................................................................... 7
2.2 Methodology.............................................................................................................................. 8

CHAPTER III: NATIONAL STRATEGY ON ACCESS TO JUSTICE........................................... 11

3.1 Access to Justice in Legal and Judicial Reform...................................................................... 11
3.1.1 The Normative Framework..................................................................................................... 16
3.1.2 Legal Education....................................................................................................................... 22
3.1.3 Facilities and Infrastructure of Justice..................................................................................... 23
3.1.4 Legal Services, Complaints and Dispute Resolution............................................................... 23
3.1.5 Legal Awareness...................................................................................................................... 25
3.1.6 Legal and Court Reform for the Community.......................................................................... 26
3.1.7 National Strategy on Legal and Judicial Reform related to Access to Justice........................ 26
3.1.8 Action Plan on Acces to Justice in the Legal and Justice Sector............................................. 29

3.2 Access to Justice in the Legal Aid Sector................................................................................ 37

3.2.1 Legal Aid for the Poor and Marginalized in Indonesia: Several Challenges........................... 38
3.2.2 Legal Aid and Access to Justice.............................................................................................. 42
3.2.3 National Strategy on Legal Aid............................................................................................... 48
3.2.4 Action Plan on Access to Justice in the Legal Aid Sector....................................................... 54

National StrategY ON access to justice xv

3.3 Access to Justice in the Local Governance Sector.................................................................. 62
3.3.1 The Normative Framework..................................................................................................... 62
3.3.2 Legal Awareness...................................................................................................................... 63
3.3.3 Access to the Appropriate Forum and Effective Grievance Handling.................................... 64
3.3.4 Satisfactory Remedies............................................................................................................. 64
3.3.5 The Problems of Poverty and Marginalisation........................................................................ 65
3.3.6 National Stratety on Acess to Justice in the Local Governance Sector................................... 65
3.3.7 Action Plan on Access to Justice in the Local Governance Sector......................................... 70

3.4 Access to Justice in the Land and Natural Resources Sector.................................................. 79

3.4.1 Problems of the Normative Framework.................................................................................. 80
3.4.2 Awareness of Legal, Rights and Justice in Land and Natural Resources Use
and Management...................................................................................................................... 85
3.4.3 Access to Appropriate Forum.................................................................................................. 86
3.4.4 Effective Grievance Handling................................................................................................. 87
3.4.5 Satisfactory Remedies............................................................................................................. 88
3.4.6 Problems of the Poor and the Marginalised............................................................................. 88
3.4.7 National Strategy on Acess to Justice in the Land and Natural Resources............................. 89
3.4.8 Action Plan on Access to Justice in the Land and Natural Resources Sector......................... 93

3.5 Access to Justice for Women................................................................................................. 123

3.5.1 The Normative Framework................................................................................................... 125
3.5.2 Legal Awareness.................................................................................................................... 126
3.5.3 Access to Appropriate Forum................................................................................................ 126
3.5.4 Effective Grievance Handling............................................................................................... 127
3.5.5 Satisfactory Remedies........................................................................................................... 127
3.5.6 Issues Relating to Poor and Marginalised Women................................................................ 128
3.5.7 National Strategy on Acess to Justice for Women................................................................. 128
3.5.8 Action Plan on Access to Justice for Women........................................................................ 130

3.6 Access to Justice for Children............................................................................................... 133

3.6.1 Defining Justice for Children, and Children in Contact with the Law.................................. 134
3.6.2 Principles of Justice for Children.......................................................................................... 135
3.6.3 Justice for Children and Eradicating Poverty........................................................................ 135
3.6.4 National Strategy on Access to Justice for Children............................................................. 136
3.6.5 Action Plan on Access to Justice for Children...................................................................... 138

3.7 Access to Justice for the Labour............................................................................................ 149

3.7.1 Migrant workers.................................................................................................................... 150
3.7.2 Child Labour.......................................................................................................................... 153
3.7.3 National Strategy on Access to Justice for Labour................................................................ 154
3.7.4 Action Plan on Access to Justice for the Labour................................................................... 156

3.8 Access to Justice for the Poor and Marginalised................................................................... 159

3.8.1 Main Obstacles of Access to Justice for the Poor and Marginalised..................................... 159
3.8.2 Opportunities for Improving Access to Justice...................................................................... 161
3.8.3 National Strategy on Access to Justice for the Poor and Marginalised................................. 162
3.8.4 Action Plan on Access to Justice for the Poor and Marginalised.......................................... 165

xvi National StrategY ON access to justice

CHAPTER IV: FUNDAMENTAL PRINCIPLES OF NATIONAL STRATEGY ON ACCESS TO
JUSTICE: IMPACT AND CHALLENGES.................................................................................... 169
4.1 Improvement of Legal Development through Legal Education and Strengthening
of Law Enforcement ............................................................................................................. 170
4.2 Recognition and Support for the Legal Aid and Development of an Indonesian
Paralegal Profession.............................................................................................................. 172
4.3 Improvement to Legislation and Budgetary Politics Supporting Access to Justice.............. 173
4.4 Formulation and Enforcement of Minimum Service Standards for Public Service.............. 174
4.5 Improving Complaints Mechanism and Ensuring Just Resolution/Recovery for
Those Harmed by Public Services......................................................................................... 175
4.6 Empowering and Strengthening Community-Based Justice Systems................................... 176

Appendix – 1.................................................................................................................................... 178

End Notes......................................................................................................................................... 184
Bibliography.................................................................................................................................... 191

National StrategY ON access to justice xvii

 List of Illustrations
Figure:
Figure 1: A Conceptual Framework for Access to Justice - 7

Tables:
Table 1: Government Officials Reporting Assets and Wealth - 19
Table 2 : Government Investment in Legal Aid for Several Democratic Countries - 37
Table 3 : Comparative Civil Legal Services Investments - 40
Table 4 : Allocation of Legal Aid Funds in Various Countries - 41
Table 5 : Legal Aid Laws in Several Countries - 51
Table 6 : Comparison of Legal Aid Mechanisms and Procedures - 51
Table 7 : Number of Cases of Violence against Women (KTP) - 128

National StrategY ON access to justice xix

 TERMINOLOGY
Ad hoc
From the Latin “for this purpose,” it generally signifies a temporary or situational solution designed
for a specific problem or task, non-generalisable, and which cannot be adapted to other purposes.

Affirmative action policy

Policy made based on a partiality towards a certain entity/subject in an attempt to promote equal
opportunity or increase ethnic or other forms of diversity.

Agrarian reform
The overall redirection of the agrarian system of the country, which often includes the possession,
ownership, use, and exploitation of land and natural resources, carried out to secure legal certainty,
protection, justice, and welfare for all citizens.

Bio/ecoregion approach
An approach in natural resources management that is based on integrated management of land
ecosystems, coastal areas, sea and air including small islands with the community and culture that is
not restricted by territorial administrative borders.

Centralised government system

A form of government in which power is concentrated in a central authority to which local governments
are subject.

Child
A person below the age of 18.

Child in contact with the law

A child who is a victim, witness, suspect, indictee or who has violated criminal law.

Child discrimination
Discrimination against a child is an act of differentiating, alienating or restricting a child, based
on his/her ethnic group, religion or race, or inhibiting the child’s right to education, healthcare and
social, political, cultural and economic protection or other fields.

Child exploitation
Child exploitation is the intentional or forcible treatment of a child as a commodity for economic
profit. As the victim of exploitation, a child receives little economic benefit, or none at all. Child
trafficking is included in this category.

National StrategY ON access to justice xxi

Child emotional abuse
A form of abuse characterized by a person subjecting or exposing another to behavior that is
psychologically harmful. Such abuse is often associated with situations of power imbalance, such as
abusive relationships, bullying, child abuse and in the workplace.

Child neglect
Child neglect occurs when the parents/guardian intentionally do not provide basic goods for the child
to grow.

Child physical abuse

Physical abuse occurs when violence against a child is carried out intentionally or with force that can
cause physical damage to the child.

Child sexual abuse

Sexual abuse is a form of child abuse in which a child is abused for the sexual gratification of an adult
or older adolescent. It includes pornographic child abuse.

Child trafficking for sexual exploitation

Child trafficking is the recruitment, transportation, transfer, hiding or receiving of a child with or
without the threat of violence, kidnapping, fraud, authority violation for sexual exploitation.

Complaints mechanism
Simple procedures and mechanisms that give users of a service access to safe means of voicing
complaints on areas relevant and within the control of the agency.

DAK
Special Allocated Funds are the funds sourced from APBN (State Development and Expenses
Budget) allocated to certain regions with the aim of funding special local activities according to
national priorities.

Decentralised government system

A government system that gives wide authority to local government to manage and regulate all
government issues in its own region.

Deconcentration funds
Funds from APBN managed by the Governors as the representatives of the central government
covering all revenue and expenses to implement administrative deconcentration; they are not included
in the funds allocated for the local offices of national bureaux

Development planning discussion (Musrenbang)

A process for community level development planning. Stakeholders are invited to participate in each
stage of planning.

Diversion
A mechanism to hand over child cases from the mainstream formal system to a specific juvenile
justice system or a non formal community-based settlement. Ideally, it can be done at every stage
of examination and indictment, and should be monitored by a stable system to avoid practices

xxii National StrategY ON access to justice

masquerading as diversion that are not in line with accountability, transparency and child rights
principles.

DPOD
The Advisory Body for Regional Autonomy is formed by the President to evaluate and give input
on regional autonomy. Its mandate extends beyond providing advice about the necessity of regional
expansion.

DPRD
The Local House of Representatives is the locally elected representative body.

Environmental justice
Equal and non-discriminatory access to the benefits, risks, and dangers of the environment and
natural resources. Included in environmental justice is access to information about land and natural
resources and participation in decision-making by all parties.

E procurement
A process for procuring goods and services using communication and information technology, which
may be expected to result in more efficient and effective purchasing.

Facilitating assignment
An assignment from the central government to the local/village government. The assigned person is
obliged to report on and to account for their performance on a given task to his/her assigner.

Financial equalisation
A financial system of regulation based on a clear distribution of authority, duty and responsibility
within governmental structure (centre — province — district/city).

Free and prior informed consent

Free consent without intervention, manipulation or force from another given to all members of a
community, in general to adat communities, to manage natural resources that have the potential to
have a negative impact on their lives, based on initial information which explains accurately the
objective, scope of work and possible impact on the community and which is delivered in a language
and means of communication that is understood by them and is respectful of their customs and
traditions.

Formal justice system

The legal enforcement institutions and judiciary under State control, including the police, prosecutor,
courts (crime and administration), advocates, correctional facilities, and related ministries that are
responsible for managing, monitoring and implementing political, legal and security policies.

Gender budgeting
The policy in budgeting that considers the voices and interests of women in making and allocating
the budget, so that the needs of women in various fields such as education, health, economy, politics,
and law are reflected equally in the budget policy.

National StrategY ON access to justice xxiii

Gender justice
Equal treatment of women and men, girls and boys so that they have the same opportunities and are
treated identically/without discrimination.

Gender mainstreaming
The strategy was developed to integrate gender into one integral dimension from planning, drafting,
implementing, monitoring, and evaluating the national development policy and programme.

Gender roles
The socially constructed roles, behaviors, activities, and attributes that a given society considers
appropriate for men and women. Gender roles are set by convention and other social, economic,
political and cultural forces.

General Allocation Funds

General Allocation Funds are the funds sourced from the revenue of APBN, allocated for more
even distribution of financial capacity between regions, to fund local needs resulting from the
decentralisation programme.

Local budget
Local Development and Expenses Budget (APBD) is an annual budget plan formulated by a local
government, discussed and approved by the local government and local parliament, and determined
according to local regulations.

Local government
Local government is established by an autonomous region at provincial and district/city level to
regulate its autonomous authority.

National Legislation Programme (Prolegnas)

The National Legislation Programme prioritising bills of law to be discussed in the House of
Representatives (DPR) over a certain period.

Non-formal justice systems

Traditional and religious courts, and other non-formal mechanisms usually used as a medium through
which to settle disputes at community level.

Ombudsman
An institution formed by the legislative to solve problems between the people and the government,
and problems between the people and judiciary institutions, but without the authority to execute
decisions.

Public services
Services provided (directly or indirectly) by a government to its citizens to meet their basic needs,
according to the civil rights of each citizen.

PPP
Public Private Partnership is cooperation between the government and private sector by using various
technical models of partnership concerning funding and operations.

xxiv National StrategY ON access to justice

Regional autonomy
The decentralisation of governance to outlying regions, which become legal units with authorised
borders, empowered to regulate and manage governmental and local affairs according to their own
initiatives, based on people’s aspirations in the unitary Indonesia system.

Regional Direct Revenue

Regional Direct Revenue is revenue collected based on regional regulations according to the
prevailing regulations.

Regional territorial expansion

Division of a region into more than one autonomous regions at provincial and district/city level.

Restorative justice
A theory of justice that focuses on crime and wrong-doing as acted against the individual or
community rather than the state. In restorative justice processes, the person who has harmed takes
responsibility for their actions and the person who has been harmed may take a central role in the
process, in many instances receiving an apology and reparation directly or indirectly from the person
who has caused them harm.

RIA: regulatory impact analysis/assessment

A framework in the process of making public policy by considering the costs and benefits of the
policy issuance, involving related stakeholders.

Sex
Sex marks the distinction between women and men as a result of their biological, physical and
genetic differences.

Socio-legal approach
Inter-disciplinary approach combining social and legal science perspective. Included in socio-legal
domain is legal sociology, anthropology, legal history, psychology and law, political assessment of
law and other similar assessments.

Stakeholder
A stakeholder is a part of the community that will be affected by a government regulation/policy and
therefore has the right to participate in the process of policy/regulation making.

Transitional justice
Transitional justice generally refers to a range of approaches that states may use to address past
human rights violations and includes both judicial and non-judicial approaches. They include series
of actions or policies and their resulting institutions, which may be enacted at a point of political
transition from violence and repression to societal stability. The main principles of transitional justice
are redressing acts of injustice in the past and prioritising disadvantaged and vulnerable groups
(indigenous people, farmers, labourers, the poor, children, women, etc.). The primary objective of a
transitional justice policy is to end the culture of impunity and establish the rule of law in a context
of democratic governance.

National StrategY ON access to justice xxv

Underdeveloped
Local government administration is categorised as “underdeveloped” based on certain criteria
determined by central government requiring special attention from the government.

Women’s perspective legal approach

An approach in modern legal science that focuses on women’s issues, based on critical analysis of
various legislative products and policies.

xxvi National StrategY ON access to justice

 CHAPTER 1
CHAPTER 1
INTRODUCTION

1.1 Background
Access to justice is an essential component in the rule of law, and in the recognition of fundamental
human rights as guaranteed by the Indonesian Constitution. All of the rights and responsibilities
contained in the Constitution, when taken together, represent a single effort to attain a Unitary
Republic of Indonesia that guarantees social justice to all of its people. The goals of the Indonesian
Constitution are sought through the implementation of the National Long-Term Development Plan
(LTDP), and one of the goals presented in the 2005-2025 LTDP is an “independent, progressive,
just and prosperous Indonesia.” In this vision, all Indonesians enjoy the same rights to live, work,
obtain social, educational and health services, speak their opinions, practise their politics, protect
their nation, and receive the protection of an impartial law. A just nation is one that is free from
discrimination in all its forms, including personal prejudice, sexism and regionalism.1

The Government has made several efforts to realise the goals of the LTDP. In 2005-2006, the
Government of Indonesia, the National Development Planning Agency (BAPPENAS), and the United
Nations Development Programme (UNDP) carried out an 18-month research project to investigate
access to justice in five provinces: West Kalimantan, Maluku, North Maluku, Central Sulawesi, and
Southeast Sulawesi.2 All of these provinces have been deeply affected by conflict, both vertical and
horizontal, and have thus experienced a dearth of social service provision— understood by local
residents as a form of injustice practised by the State. The injustice is felt most acutely by the poor
and marginalised, due to their location, poor physical and legal infrastructures, and inadequate social
understanding of the fundamental rights guaranteed by the Indonesian Constitution.

The purpose of the project was to conduct qualitative and quantitative research on, and assessment
of, access to justice issues—particularly from the perspective of poor and marginalised communities.
The research focused on identifying the major challenges to accessing justice, the causes behind these
challenges, and the steps being taken to address them.3 The performance of formal and informal legal
mechanisms was considered, as well as the most recent legislative and institutional developments
with the potential to influence access to justice in general.4

In July 2007, BAPPENAS and UNDP signed a Project Document for the Legal Empowerment and
Assistance for the Disadvantaged Project (LEAD). One of the objectives of the project was to develop
a National Strategy on Access to Justice that could become the primary reference for law and human
rights in the 2010-2014 Medium-Term Development Plan (MTDP).5

National StrategY ON access to justice 1

Recommendations from this research addressed themselves to six primary issues:6
1. Access to government services and assistance;
2. Land and natural resources ownership and management;
3. Violence and gender discrimination;
4. Labour rights and the right to adequate employment;
5. Criminality and inadequate law enforcement;
6. Post-conflict security, property rights and other issues.

After a comprehensive review of the above results, eight sectors emerged as the primary focus of the
National Strategy on Access to Justice. These include the following: (i) Access to Justice in the Legal
and Judicial Reform sector; (ii) Access to Justice in the Legal Aid sector; (iii) Access to Justice in the
Local Governance sector; (iv) Access to Justice in the Land and Natural Resources sector; (v) Access
to Justice for Women; (vi) Access to Justice for Children; (vii) Access to Justice for Labour; and (viii)
Access to Justice for Poor and Marginalised Groups.

1.2 Legal Development and Access to Justice:

Hopes and Challenges
Access to justice has become a timely theme in the long histories of national and international legal
development. A report launched by the Commission on Legal Empowerment of the Poor found that
four billion people worldwide live in poverty due to marginalisation, failure of the rule of law and
inadequate access to justice (CLEP, 2008). Legal development has also failed in providing access to
justice for the poor. The persistence of poverty has been due to the perspectives by which the issue
has been misunderstood and the methods by which it has been inappropriately addressed. Access to
justice is not merely a matter of law then; it is a method for addressing the problem of poverty.

Legal development has tended to overemphasise the development of judicial systems, while failing to
address problems of law, welfare, and access to justice. Legal development should be integrated with
programmes for the eradication of poverty in education, health, natural resources, the environment,
economics, and politics; it should also become an integral part of social and cultural policies.

This document discusses the ways in which law contributes to poverty, and how the eradication of
poverty must begin with a reform of the legal system (including legislation, institutions, and legal
empowerment). The model of legal development offered in this report is pro-people’s justice; it
therefore recommends that (1) legal development should be integrated with development in other
social sectors and should be tied directly to the alleviation of poverty; (2) it should be planned
from the bottom up with the active participation of experts and civil society representatives who
understand the law from the people’s perspective; (3) it should pursue the active participation of the
public and the greatest possible benefit for the marginalised (the poor, women, and children).

Poverty is man-made (CLEP, 2008). The essential cause is the exploitation of poor countries by
developed countries, and of people by ruling classes. Poverty bears an intimate relationship to
failures in access to justice. The poor have very limited opportunities for participation in legislative
and policy processes, including the formulation of state budgets. The poor have no choice but to
submit to laws and regulations that are not in their interests.

2 National StrategY ON access to justice

The legal development movement began in the 1960s with the aim of promoting democracy and
development in the newly independent countries of Africa, Asia, and Latin America. The movement
maintained a traditional Western model for achieving modernisation and democracy in the third
world. Implementation of this model, however, was unsuccessful. Experts now believe that Western
legal scholars failed to understand the legal systems and social contexts of the new states in which
they were operating. “What did lawyers understand about the development of the third world?”
(Benda-Beckman, 2006). Trubek and Galanter write that legal development was based on a false
theory of “law and community,” leading to what has been termed “legal imperialism” (Stephenson,
2006).

In the wake of the movement’s failure, law became marginal to what seemed the more urgent matters
of development and modernisation. Law only regained its prominence with the emergence of the
“rule of law movement” in the early 1990s with the end of the cold war. The rule of law movement
aimed at a system in which people understand the law and it applies equally to all (Carothers, 2006).
The rule of law movement came to prominence both in the third world as well as in the former
socialist states.

The rule of law movement intended to eliminate corruption, stimulate foreign investment, increase
economic growth, and eradicate poverty. Legal reform was therefore carried out primarily for the
purposes of increased foreign investment and business activity. This prioritisation of business law
caused many Asian countries, including Indonesia, to modify their commercial laws and legal
institutions.

The programmes have not proven entirely successful, despite ten years and a great deal of funding
invested. Reform of legal institutions has been slow: in Latin America, judicial systems remain
sluggish; in Russia, legal reform never reached the implementation stage; and in Indonesia, the courts
remain poorly structured, while the “judicial mafia” runs rampant. Furthermore, the movement’s
orthodoxy has been discredited by the People’s Republic of China; in the past twenty years, the PRC
has developed its economy and attracted foreign investment without any Western-style legal reforms.

The rule of law approach was fundamentally flawed in its top-down approach. Golub, for example,
compared the movement’s orthodoxy to “a house without a foundation” (Golub, 2005). Its failures
can be described as follows:

First, the programme focused too narrowly on state institutions, particularly courts. In reality, most
people tend to avoid courts and seek informal justice through alternative dispute resolution forums.
When state judicial institutions are overwhelmed to begin with, it is precisely these alternative forums
that need strengthening.

Second, legal reforms concentrated on business law, institutional reform, and other matters of process
wherein legal scholars play an important role. Not only were these priorities inappropriate to the needs
of the poor, but they also confused the matters of legal and social justice. For the most fundamental
matters of justice to be addressed, they must be understood in an interdisciplinary perspective that
includes social and anthropological knowledge.

Third, a lack of community involvement led to increased dependence on foreign experts and initiatives.
There was very little opportunity for policy-makers to find out directly from the communities affected
just what they required in order to find justice.

National StrategY ON access to justice 3

1.3 Towards People-Oriented Access to Justice
Having learned from the failures described above, world institutions have now begun promoting
international cooperation to provide every person with access to justice and finally eradicate poverty.
These developments are, for the first time, solidly focused on the needs and aspirations of the poor
and marginalised. Legal development under this new paradigm is based on the needs of people, and
implemented and monitored by the community itself.

Access to justice means understanding the rights and principles of justice guaranteed by law. When
the poor and marginalised possess sufficient legal knowledge, then they will feel empowered to enact
their own strategies for accessing justice (Nelson, 2007). The rule of law is the starting point for
fulfilling all other fundamental rights, whether in the areas of economy, health, education, or natural
resources. In the effort to eradicate poverty, law should be master, but it should be the servant of the
people, too.

1.4 The Conceptual Framework of Access to

Justice in Indonesia
Adherence to the principles of justice is one of the primary characteristics of a state based on the rule
of law.7 Justice is a fundamental human right that operates in tandem with the principle of equality
before the law. Every person has the right to obtain effective remedies for any violation of rights they
have suffered; the State, meanwhile, has an obligation to ensure that these rights are upheld.8 The
right to justice is a fundamental human right that demands fulfilment.9

Access to Justice and Poverty

Access to justice is not only a legal matter; it is also a matter of economic opportunity. Poor people
must therefore serve as its focus, since, according to the findings of CLEP 2008, poverty is intimately
tied to the rule of law and people’s access to justice.10

Access to justice can also be understood as a form of affirmative action founded on a human rights
perspective.11 Contrary to popular misconceptions, affirmative action is not discrimination, but rather
a form of temporary assistance for the poor and marginalised, allowing them to reach a position from
which they may claim access to justice for themselves.

The focus of access to justice has evolved over time, developing from one in which the chief priority
was legal aid to poor communities, to one in which the interests of all stakeholders are incorporated
in serving the needs of the poor for justice.12 Stakeholders may include state institutions – public
prosecutors, courts, ombudsmen, public service ministries – and civic organisations mobilised
around community empowerment issues. In the future, these processes should be mobilised with a
goal of reforming legal systems; in this manner, we can hope for progress towards a State based on
the rule of law.13

The Definition of Access to Justice

The concept of access to justice focuses on the two basic aims of any legal system,14 that (1) the
system should be accessible to all people from all walks of life; and (2) a legal system should be able
to deliver certainty and justice to all, whether individually or collectively. The basic intent of this

4 National StrategY ON access to justice

concept is to ensure social justice for all citizens from all sectors of society.15

In the Indonesian context, access to justice means fulfilling the rights promised by the Indonesian
Constitution and the universal principles of human rights. Citizens should know, understand, and
be able to invoke their fundamental rights in formal and informal institutions – with the support of
responsive public complaint mechanisms – and this should allow them to improve their own social
welfare. Access to justice is explicitly concerned with the problem of preventing and overcoming
poverty, and this requires that disadvantaged communities be able to access justice through formal
and informal institutions. Both community and state judicial institutions should be able to provide
justice to those seeking out a legal remedy.

Furthermore, all citizens – especially the poor – should have access to mechanisms that are fair,
effective, and responsive in protecting their rights, preventing their mistreatment, and addressing
their conflicts. They should be able to obtain justice through both formal and informal mechanisms,
and they should be able to participate in the framing, enforcement, and institutionalisation of law.
UNDP has defined access to justice thus:

Access by people, in particular that of poor and disadvantaged groups to fair, effective, and
accountable mechanisms for the protection of rights, protection from abuse of power, and
resolution of conflicts. This includes the ability of people to seek and obtain a remedy through
formal and informal justice systems, and the ability to seek and exercise influence on law-making
and law-implementing processes and institutions. (UNDP, 2006)16

This definition states clearly that access to justice is a concept aimed at both the community at large,
and at the poor in particular (thus indicating the stress on affirmative action). It also indicates that
achieving justice on the basis of current law is only one element in achieving justice more broadly;
this coincides with the United Nations Security Council’s definition of justice as well. The definition
stresses both bottom-up and top-down elements: people must have knowledge of the law, awareness
of their rights, awareness of appropriate forums for obtaining remedies, and adequate means for
practising their rights; the Government and other stakeholders, meanwhile, have an obligation to
ensure that people are aware of their rights and have access to effective remedies, all in the context of
working to eradicate poverty. Human rights standards are a crucial guide and foundation for securing
access to justice for the poor.

This definition also emphasises the importance of access to justice in remedying losses suffered due
to conflict and dispute. A remedy is any action meant to repair and repay damages. Legal remedies
are defined by the involvement of a third party, whether a judicial or institutional mechanism, whose
function is determined by legal norms. The judicial system acknowledges people’s rights to legal
remedies when their rights are violated or in dispute.

In the Indonesian context, implementing access to justice will require contributions on the part of all
stakeholders, whether governmental, commercial or civil. This includes both the Government and
all closely related stakeholders. The Indonesian Constitution upholds access to justice as a human
right under Articles 28D(1) and 28I(1). The Constitution also affirms the Government’s obligation
to uphold and protect the rights of every citizen to access justice. All of the rights and obligations set
out by the Indonesian Constitution are part of an effort to achieve the goal of a Unitary Republic of
Indonesia with social justice for all. The National Strategy on Access to Justice shares this goal, whose
realisation will above all depend on the coordinated efforts of all stakeholders, and consideration of
Indonesia’s particular circumstances, as discussed in the following chapter.

National StrategY ON access to justice 5

 CHAPTER 2
CHAPTER 2
CONCEPTS AND METHODOLOGY

2.1 The Process of Access to Justice in

Indonesia
Access to justice becomes meaningful only once it is understood as a process for delivering
justice to the most marginalised sections of society. It involves a variety of policies, strategies, and
processes combining and interacting with one another, as delineated by judicial experts, and in the
documentation of international organisations.17 Their findings are summarised in the diagram below:

Figure 1: A Conceptual Framework for Access to Justice

Penanganan elesaian
Access to Effective Satisfactory
Normative Legal
Appropriate Handling of Remedy
Framework Awareness
Forum Grievance Obtained

Normative Claim holders Claim holders Duty bearers Claim holders

framework are aware of the seek remedies take necessary receive
of laws, law and their for grievances actions to provide appropriate
procedures and rights under it through remedies for a remedies, in line
administrative and know what appropriate
grievance. with human rights
structures to do in case of a mechanisms and
standards.
in place and grievance. grievances are
understood by received by duty
claim holders bearer.
and duty bearers

Monitoring, Oversight and Transparency

Source: Justice for All, UNDP, 2006

This conceptual framework can be summarised in the following terms:18

1. A normative legal framework that supports access to law and justice. The normative legal
framework takes the form of a legal superstructure containing both rights and obligations, and
reflecting people’s customs and social behaviour. This includes state and customary law in three
ways: (i) regulatory substance; (ii) regulatory processes and mechanisms for change; and (iii)

National StrategY ON access to justice 7

actors and institutions involved in both substance and process.
2. Knowledge of the law: this includes laws, regulations, obligations, rights, and the various
alternatives available for the resolution of disputes.
3. Access to institutions where the poor can interpret legal awareness and the real efforts that follow
as stated in the World Development Report 2006, “people’s legal rights remain theoretical if
the institutions charged with enforcing them are inaccessible.”19 As regulatory reform takes up
the issue of poverty and the legal awareness of the poor increases, formal and informal legal
institutions must also be made accessible.
4. Effective legal administration through formal and informal institutions: The public should
understand legal institutions as efficient, neutral, and professional. Legal institutions should apply
their procedures consistently and impartially, so that they not only produce satisfactory results,
but also increase trust in the institutional arrangements of the law.
5. Satisfactory remedies are impartial, timely, consistent with legal norms, free of corruption and
political interventions, and consistent with universal human rights.
6. Recognition that the problems of the poor and marginalised are the problems of us all.
7. Monitoring and oversight to ensure transparency and accountability in the six measures outlined
above.20

2.2 Methodology
Following a Memorandum of Understanding, BAPPENAS and UNDP cooperated through the
Legal Empowerment and Assistance for the Disadvantaged Project to form a working group for
the composition of the National Strategy on Access to Justice. The working group’s objective was
(i) to compile a strategy document that would provide policy recommendations for the 2010-2014
National Medium-Term Development Plan; and (ii) to produce an action plan for the successful
implementation the National Strategy on Access to Justice.

The working group consisted of 14 members, each of whom contributed specialised expertise,
including representatives of BAPPENAS, the National Law Development Agency (BHPN), the
World Bank, UNDP, academics, NGOs and UNICEF. The Director of Law and Human Rights at
BAPPENAS was the chief of this working group, and a representative of UNDP served as deputy
chief. Members of the working group consisted of women and men possessing expertise and
experience in areas of (i) legal and judicial reform; (ii) legal aid; (iii) regional governance; (iv) land
and natural resources; (v) women; (vi) children; (vii) labour; and (viii) the poor and marginalised.

The working group conducted weekly meetings to discuss and re-work earlier versions of the
manuscript. Various modifications were made as discussion evolved. For example, sections were
added on access to justice for workers, children, and the poor and marginalised, based on the
vulnerable positions that all of these groups inhabit.

Even the conceptual framework that had been brought to this manuscript was elaborated on as
our discussion of issues developed. New information and ideas allowed the document to continue
developing and improving.

Stakeholders were then consulted about the draft through a series of public consultations and focused
discussions. The first meeting was conducted in Jakarta on 11 and 12 February 2008, with participants
consisting of experts and key persons at the national level. To collect input and aspirations at the

8 National StrategY ON access to justice

regional level, a meeting was conducted in Bali on 16 and 17 April 2008; in Medan on 10 and 11 July
2008; and in Makassar on 27 and 28 August 2008.

The results of these regional consultations were very important, because they provided new
information, ideas, and contacts that allowed the National Strategy to address the problems of local
communities. The National Strategy continued to develop throughout this process of discussion and
consultation.

In its final phase, the National Strategy was shaped into a more technically oriented action plan that
can now be implemented as a programme framework for Indonesia’s National Medium and Long-
Term Development Plans.

National StrategY ON access to justice 9

 CHAPTER 3
CHAPTER 3
NATIONAL STRATEGY ON ACCESS
TO JUSTICE
Based on the elements of a normative framework – i.e., legal awareness, access to appropriate forums,
effective handling of grievances, and effective methods of redress – the National Strategy on Access
to Justice focuses on eight primary issues: Access to Justice in the Legal and Judicial Reform sector;
Access to Justice in the Legal Aid sector; Access to Justice in the Regional Governance sector;
Access to Justice in the Land and Natural Resources sector; Access to Justice for Women; Access to
Justice for Children; Access to Justice for Labour; and Access to Justice for Poor and Marginalised
Groups.

3.1 Access to Justice in Legal and Judicial

Reform
Legal and judicial reforms represent an essential step in improving public access to justice for at
least three reasons. First, Indonesia has declared itself a constitutional democracy (Article 1(3) of the
Indonesian Constitution), and so an absolute rule of law must serve as the foundation of national and
social life. Both the people and the State are bound by this principle, yet in the life of the nation thus
far, “rule of law” has been interpreted narrowly as embodying only the function of legal certainty;
the law has not been understood as providing justice and welfare to the people. These three functions
(certainty, justice, and welfare) should operate in tandem without infringing upon one another.

Second, law-making in Indonesia has not yet enlisted the public’s participation as an essential
condition of legal democratic rule. For democracy to be realised, people must take an active role
in shaping the laws that govern their lives and communities. Currently, levels of participation are
weak at both the national and regional levels, while regulations governing public participation in
the law¬making process are unclear. In many instances, therefore, laws and regulations lack social
legitimacy upon their enactment.

Third, the law courts, which ought to serve as the last resort of those seeking justice and redress for
violations against their basic rights, still do not operate optimally. Many law enforcement officials
and institutions (police, public prosecutors, the Supreme Court, and professional organisations, for
example) do not cooperate to serve the law or the people. Even within law enforcement, institutional
cooperation is weak, and institutions are therefore unable to provide justice, particularly to the poor
and marginalised.

National StrategY ON access to justice 11

The poor and marginalised require legal development to effect a balance between the three functions
of law: the provision of justice, social welfare, and legal certainty. In order to reach such balance in
the next five years, reforms to Indonesia’s legal and judicial systems must include: (i) changes to the
paradigm of legal development that balance the functions of certainty, justice, and welfare for the
people; (ii) improvements to the law-making process that enlist the active participation of individual
citizens and their communities; (iii) thorough improvements to inter-agency cooperation within law
enforcement, so that these agencies may better serve the poor and marginalised with substantive
justice and the protection of basic rights—whether these rights have been violated by State or non-
State actors; and finally (iv) legal empowerment for the poor and marginalised.

Efforts at Legal and Judicial Reform

Research by various institutions on social perceptions of the law demonstrate that many still question
the ability of Indonesian law and its enforcement mechanisms to come to the aid of the poor and the
marginalised (Box 3.1). This doubt persists despite legal and court reforms having already begun.
These include initiatives such as the Law Summit, Agenda for Accelerating the Eradication of
Corruption, the National Action Plan for the Eradication of Corruption, various “Blueprints” serving
as road maps for reform, and various reform programmes of the Supreme Court, public prosecutors,
and police. All of these efforts combine to provide hope that change is possible within the Indonesian
legal system.

Law Summit
The Law Summit is an assembly of high-ranking officials from the Government and judiciary
(including representatives of the Supreme Court, Department of Law and Human Rights, Indonesian
National Police, Attorney General’s Office, Ministry of National Development Planning/ National
Development Planning Agency, and Office of the Coordinating Minister for Politics and Security).
Its purpose is to support state legal organisations and functionaries in formulating and enacting an
agenda of legal and judicial reforms that is transparent, participatory, and integrated. Three Law
Summits were held between the years 2002-2004.

Law Summit I, held on 29 January 2002, succeeded in obtaining the agreement of all involved to
cooperate in enacting an agenda of legal and judicial reform, and to work towards new kinds of
relationships between the institutions of the legal and judicial sector. The commitments agreed to in
Law Summit I were evaluated and advanced in Law Summit II, held on 16 October 2002.

Law Summit II created action plans for the reform of law and regulation, the judiciary, the public
prosecutor system, the police, and for the eradication of corruption. Law Summit III was held on
31 March 2004 and ended with an agreement signed on 16 April 2004 by the Head of the Supreme
Court, the Minister of Law and Human Rights, the Attorney General, the National Police Chief, the
Corruption Eradication Commission, and the Union of Indonesian Advocates.

The signed agreement contained eight important commitments: (1) to manage cases in a manner
that guarantees public access; (2) to develop oversight systems that are transparent and accountable;
(3) to develop transparent systems of human resource management and encourage professional
development; (4) to develop budgetary systems that are transparent and stress accountability; (5) to
improve coordination and cooperation so that laws remain consistent; (6) to strengthen institutions
(and where necessary, to found new ones, as in the case of the Judicial Commission) and revise
legal materials—particularly those related to case law and law enforcement procedures based on
a system of Integrated Criminal Justice.21 The actions contained in the signed agreement provide

12 National StrategY ON access to justice

both inspiration and specific reference points for the implementation of a reform agenda—for legal
institutions in general, but particularly for the Supreme Court and Attorney General’s Office.

Supreme Court Reform

Systematic reform of the Supreme Court began in 2001, when the Court, in cooperation with civil
society institutions, completed a study whose results were published in the form of a Blueprint.
The Blueprint provides both normative and empirical descriptions of the condition of the Court,
touching on matters as diverse as its independence, organisation, human resources, case management
procedures, accountability, transparency, information management, oversight and disciplinary
systems, budgets, facilities, and possibilities for reform. The Blueprint contains recommendations
for the Law on Judicial Commission, a code of conduct for treatment of witnesses, and provisions
for better information systems.

In implementing the Blueprint for Supreme Court Reform, the Chief Justice issued Decree No.
26/KMA/SK/IV/2004, amended ultimately in Chief Justice Decree No. 85/KMA/SK/VII/2008 on
Formation of a Judicial Reform Team in the Supreme Court of the Republic of Indonesia. The Reform
Team’s duty is to translate the Blueprint’s recommendations into action; thus the Team is divided
into several working groups: the Working Group on Case Management and Information Openness,
the Working Group on Information Technology, the Working Group on Education and Training, the
Working Group on Human Resources, the Working Group on Financial Management, and finally the
Working Group on Oversight. These working groups are composed of members from the Judicial
Reform Team and functionaries of the Supreme Court. The working groups will develop strategy,
coordinate activities, and monitor and evaluate programmes related to Supreme Court reform.

One important achievement of Supreme Court reform has been the Judge Behaviour Standards,
published by way of Chief Justice Decree No. 104A/KMA/SK/XII/2006 in December 2006. These
guidelines contain ten principles for judges’ behaviour: fairness, honesty, wisdom, independence,
integrity, responsibility, self-respect, discipline, humility, and professionalism. These standards do
not yet contain any sanctions or details, thus the Court issued Chief Justice Decree No. 215/KMA/
SK/XII/2007 on Implementation and Enforcement of Judges’ Behaviour.

Supreme Court reform has also been advanced by Chief Justice Decree No. 144/KMA/SK/VIII/2007
on Court Information Transparency. This decree outlines the various types of information to be made
available, and the mechanisms by which the Court will provide them. It also details the types of
information the public is entitled to receive from the Court, the procedures by which information is
provided (including fees and waiting times), the personnel responsible, and the sanctions imposed for
their poor performance. Because of the decree, Supreme Court decisions are now available online at
www.mahkamahagung.go.id and www.putusan.net.

The Agenda for Bureaucratic Reform, based on the General Standards for Bureaucratic Reform
issued by the Ministry of State Apparatus, also bears relation to the pace of Supreme Court reform.
The Agenda for Bureaucratic Reform aims at developing a State apparatus that performs honestly,
productively, responsibly, and capably in providing public services. The legal service agencies
constitute a major priority for this reform agenda.

Bureaucratic reform of the Supreme Court can only be accomplished by improvements to the quality
of human resource management, financial management, information technology, and financial
management. According to the Court’s Chief Justice, at least five programmes must be instituted

National StrategY ON access to justice 13

as quickly as possible. These include programmes involving transparency, information technology
management, ethics training, funds management, and human resource management.

Reform of the Attorney General’s Office

The Attorney General’s Office Reform Team, headed by the Attorney General himself, was founded
in 2005. Its programme consists chiefly of the following five elements: (1) organisational and
administrative reform of human resources; (2) organisational and administrative reform of the
Attorney General’s Intelligence Body; (3) general management reform; (4) case management reform;
and (5) oversight reform.

The Attorney General’s Office Reform Team has successfully reformed systems of recruitment and
retainment, composed the Public Prosecutors’ Code of Conduct, composed minimum professional
standards for public prosecutors, and reformed oversight systems (including monitoring programmes,
instruments for monitoring performance, and instruments for monitoring monitors). The Reform
Team has also conducted management education and trained the District Chief Public Prosecutors
(Kajari), and it has supported the computerisation of databases, official profiles, and case handling.

In the spirit of public prosecutor reform, the President issued Presidential Regulation No. 18/2005
establishing a Prosecutorial Commission to monitor the performance of public prosecutors and
officials of the Attorney General’s Office. The Commission monitors public prosecutors in the
performance of their professional duties as well as in their attitudes and behaviour, both on-duty
and off. The Commission also provides oversight on organisational matters, including facilities,
infrastructure and human resources.

The Prosecutorial Commission has come to an agreement with the Attorney General (Memorandum of
Understanding No. KEP-056/A/JA/07/2006 and No. NK-001/KK/07/2006) to facilitate the reception
of public complaints, provide copies of reports to the Attorney General from the Prosecutorial
Commission, implement inspections of internal oversight, monitor and report on internal inspections,
and accept the recommendations of the Prosecutorial Commission. The memoranda note that if the
internal oversight of the Attorney General’s Office is unable to resolve a complaint within three
months, then that particular complaint will be handed over to the Commission. The Commission
thus serves more in a supervisory than an oversight role; for a number of reasons, however, the
Prosecutorial Commission is not yet able to act as an effective partner in improving the oversight of
the public prosecutorial body.

Agenda for Accelerating the Eradication of Corruption

In 2004, the President issued a directive to accelerate efforts in the eradication of corruption
(Presidential Directive No. 5/2004). The directive includes both general and specific instructions—
the general instructions are for leaders of all institutions, at both national and regional levels, to
accelerate activities leading to the eradication of corruption; the specific instructions consist of
particular tasks directed toward the leaders of particular institutions, namely:

General Instructions
The eleven general instructions for the eradication of corruption are: (1) support the publication of
the Report on Government Officials’ Wealth and Assets (LHKPN); (2) provide aid to the -Corruption
Eradication Commission in the matter of LHKPN; (3) enforce work targets and performance reviews;
(4) enhance the quality of public services; (5) determine the programmes and locations for corruption
eradication; (6) procure goods and services in accordance with Presidential Decree No. 80/2003;

14 National StrategY ON access to justice

(7) eliminate exorbitant expenses; (8) support law enforcement; (9) cooperate with the Corruption
Eradication Commission in conducting research on corruption and on changing the systems that
leads to it; (10) improve monitoring; and (11) implement Presidential Directive No. 5/2004 faithfully
and report results to the President.

Specific Instructions
The specific instructions to for the eradication of corruption are: (1) Minister of Economics, Minister
of Finance, and State Minister of National Development Planning / Chairman of BAPPENAS:
Investigate and test e-procurement systems; (2) Minister of Finance: Monitor taxes, duties, and non-
tax state income: investigate finance policies; (3) State Minister of National Development Planning
/ Chairman of BAPPENAS: Formulate National Action Plan on the Eradication of Corruption
(RAN-PK); (4) Minister of State Apparatus: Formulate policies on public services, performance
review, good governance, and employment; coordinate, monitor, and evaluate the implementation
of Presidential Directive No. 5/2004; (5) Minister of Law and Human Rights: Draft a bill on the
eradication of corruption and amendment of laws in order to optimise the eradication of corruption;
(6) State Minister of State-Owned Enterprises: Implement good governance policies for state-owned
enterprises; (7) Minister of National Education: Cultivate a spirit and practice of ending corruption;
(8) State Minister of Communication and Information: Publicise the campaign to eradicate corruption;
(9) Attorney General: Investigate and prosecute acts of criminal corruption; punish abuses of power;
enforce laws on the recovery of state funds; (10) Chief of National Police: Investigate and prosecute
acts of criminal corruption; punish abuses of power; enforce laws on the recovery of state funds; and
(11) Governors, District Chiefs, Mayors: Implement principles of good governance; improve public
services; prevent embezzlement from regional and national budgets.

In collaboration with several non-departmental government ministries and agencies, elements of

civil society, and the Corruption Eradication Commission, the Ministry of National Development
Planning/ National Development Planning Agency has coordinated the production of a National
Action Plan on the Eradication of Corruption. This was undertaken in observance of Presidential
Directive No. 5/2004. Implementation of the National Action Plan involves 92 organisational
units from 18 ministries, 14 non-departmental government ministries, the Corruption Eradication
Commission, the Ombudsman Commission, the Centre for Reporting and Analysis of Monetary
Transactions, and many NGOs. The National Action Plan serves to: (1) prevent corruption; (2) pursue
legal cases against corruption; (3) prevent and pursue cases against corruption in the rehabilitation
and reconstruction of Aceh; and (4) monitor and evaluate implementation of the National Action Plan
on the Eradication of Corruption.

National StrategY ON access to justice 15

 Box 3.1
Persistent Challenges: People’s distrust of Law and the Judiciary

Although various initiatives have already been undertaken for reform of the law and the judiciary,
the Indonesian public has yet to gain confidence in these institutions. A World Bank study
entitled Forging the Middle Ground, Engaging Non-State Justice in Indonesia (2008) found
that, of people living in Maluku, West Nusa Tenggara, West Sumatera, Central Kalimantan and
East Jawa, 35% trust in the judiciary, 33% understand the courts, and only 5% have had any
interaction with the courts.

The World Bank’s Rule of Law index for 2007 found Indonesia scored 0.8 on a scale of -2.5 to
2.5, indicating Indonesia’s persistent difficulties in maintaining the rule of law.

Transparency International’s Global Corruption Barometer for 2006 reflects people’s

perceptions of corruption in public institutions on a scale from 1 to 5 - 1 indicating a total lack
of corruption and 5 indicating the highest levels of corruption. Based on this scale, Indonesia
earned a 4.2.

The facts cited above demonstrate that one of the greatest challenges to legal and judicial
reform in Indonesia will be changing people’s negative perceptions. Is such change possible
when the judiciary continues to fail in providing access to justice?

A nation under the rule of law must provide legal and judicial systems that are effective and fair.
These systems must allow the poor and marginalised to obtain justice and the protection of their
rights. Efforts at improving people’s access to justice require synergies in improving normative
frameworks, legal services, judicial infrastructures, and legal awareness and education. The present
section aims at identifying some of the obstacles that hamper efforts at providing access to justice in
law and the judiciary.

3.1.1 The Normative Framework

The major problems for legal reform in Indonesia are the poor quality of legislation and law
enforcement, and the lack of norms and legal regulation serving to make justice available to the
public. These problems are largely associated with the current legal paradigm, the direction of legal
development, the difficulties of legislative politics, and the poor performance and low integrity of
law enforcement itself.

The Legal Paradigm

Legal and judicial reform can only improve people’s access to justice once the law itself is based on a
paradigm in which functions of justice, well-being, and legal certainty are balanced. Such a paradigm
can then find reflection in the development, implementation and enforcement of the law.

The current legal paradigm acknowledges the primacy of legal certainty without questioning the
law’s relationship to moral principle or even justice. The supremacy of the law, a primary tenet of
constitutional government, has degenerated into a supremacy of legal procedure, which often falls
short of satisfying the diversity of the Indonesian people’s desires for justice. The current paradigm,
most often referred to as “positivistic,” encourages legal functionaries and law enforcement personnel
to interpret the law as rigid and textual, without reference to the social context in which law operates—
let alone a progressive perspective by which the desires for justice of poor and marginalised peoples
can be fulfilled.

16 National StrategY ON access to justice

Ultimately, the positivist paradigm authors a system in which the poor and marginalised lose hope
in the formal legal and judicial system. Positivist assumptions are found first of all in the setting of
legislative priorities—at the national level, for example, with reference to the National Legislative
Programme. One may also observe whether laws and regulations currently reflect the values of
democracy and social justice. Is the participation of the public encouraged in shaping legislation/
regulations? And what sort of perspectives do judges employ in their interpretation of the law?

Direction of Legal Development
Law should be based upon, and should function in order to serve, the needs of people seeking
justice; legal development in Indonesia, however, has yet to function effectively in this way. Law
No. 17/2007 on the National Long-Term Development Plan notes that legal development should
encourage continued economic development; resolve economic difficulties, particularly in matters
of business and industry; and should create a healthy investment climate, particularly through law
enforcement and legal assurance.

Legal development should eliminate opportunities for criminal corruption, while working to
eradicate problems relating to collusion, corruption, and nepotism. Legal development (according to
the LTDP) is carried out through reform of legal material, and through close attention to the diversity
of legal arrangements in operation under the influence of globalisation. It should improve people’s
certainty of and protection under the law, law enforcement’s role in protecting human rights, people’s
legal knowledge, and the legal services that work toward truth and justice. Legal development should
allow for national life to be ordered, smooth and globally competitive.

The programme of legal development contained in the LTDP does not yet go so far as to touch upon
the problems of the current legal paradigm. Its emphasis lies primarily in formal law enforcement
mechanisms, and it generally encourages the strengthening or establishment of semi-independent
institutions such as the National Police Commission, Prosecutorial Commission, Judicial
Commission, Corruption Eradication Commission, etc. Legal education, whether in the universities
or as carried out in the wider civil society, receives no attention at all—despite such education’s
crucial significance in improving both the law itself and people’s awareness of it.

Alternative mechanisms and institutions for dispute resolution also receive little attention in the
document. Several laws make reference to these alternative mechanisms, including Law No.
30/1999 on Arbitration and Conflict Resolution Outside of Court, Law No. 2/2004 on Resolution
of Industrial Conflicts, Law No. 23/1997 on Environmental Management, and Law No. 8/1999 on
Consumer Protection. Nonetheless, since 2004 legal development has not prioritised strategies for
strengthening alternative dispute resolution, nor has there been a strategy for strengthening adat
(customary) mechanisms as a means of attaining social justice.

Legislative Politics
The current legislative process does not invite participation, and this bears major consequences for
the role of law in the people’s pursuit of justice. Other problems of process include legislators’ low
level of skills and inefficient uses of the legislative budget. As a result, many laws and regulations
can actually lead to further injustice, all the more so for poor people and the marginalised.22

The legislative process’ discouragement of participation allows the enactment of laws and regulations
that are discriminatory in their treatment of various communities. The process is also uncoordinated,
so that every ministry and agency frames laws and regulations according to its own interests, and
thus the law becomes self-contradictory. There are significant conflicts between Law No. 4/2004 on

National StrategY ON access to justice 17

Judicial Power and Law No. 30/2002 on the Corruption Eradication Commission, Law No. 32/2004
on Regional Government, and Law No. 22/2003 on the Organisation and Role of the People’s
Consultative Assembly, Parliament, Regional Representative Council and Regional Assemblies.
Law No. 32/2004 on Regional Government, Article 36, regulates presidential power to conduct
investigations into a chief/deputy chief of a region involved in criminal conduct. Law No. 22/2003 on
the other hand, contains Article 106 which requires a special permit from the President for investigation
into members of the People’s Consultative Assembly, Parliament and Regional Assembly suspected
of criminal conduct. Meanwhile Law No. 4/2004 on Judicial Power, Article 4(2), states that no party
may interfere with the working of the judiciary, while Article 5 notes the judiciary’s responsibility to
ensure equality before the law. Finally, Law No. 30/2002 on the Corruption Eradication Commission
requires presidential permission before the Corruption Eradication Commission can investigate a
regional chief/deputy chief for involvement in corruption.

Law No. 10/2004 on the Drafting of Laws and Regulations enumerates the steps involved in the
creation of the law, from the planning, design, and discussion stages right up to enactment. Parliament
has already made several attempts at improving the discussion process, for example, scheduling
discussion of draft laws to avoid clashes with other parliamentary meetings. The legislature also
plans to open discussion of the Draft Law on Citizenship to the public. Unfortunately, efforts at
reform have not yet been adequate in the other stages of lawmaking. For example, many laws have
been advanced without the benefit of academic opinion papers (such as the Anti-Pornography Bill).
Academic drafts are valuable insofar as these present community-level problems as well as the
way of overcome these problems. Academic drafts also provide historical, jurisprudential, and
philosophical background for a particular piece of legislation.

At the documentation stage, only the names of draft laws are made available; there is no account as to
why they were proposed or what problems they purport to address. In the “aspiration” or information
gathering stage, there is no clear mechanism for what Parliament should do with the information
it receives. With regard to the distribution of information on proposed laws, discussion documents
on the draft laws remain largely inaccessible to the public. Complete documentation can only be
accessed though the Parliamentary Assembly Bureau.

The legislative process also suffers from budgetary problems. Members of Parliament receive
performance-based bonuses each time they attend a discussion, but these bonuses have been set too
high and have now become a burden on state finances. In the 2007 budget, for example, the outlay for
just one parliamentary bill (from drafting to enactment) was 5 billion rupiah, while a bill initiated by
the Government cost the state treasury 2.5 billion rupiah. These figures do not include the enormous
costs of comparative study, which allows Members of Parliament to travel to three countries at a cost
of 3 billion rupiah per bill.

Equalising the budgets of all legislative bills presents problems of fairness, since not all bills require
the same amount of discussion. A bill to ratify a convention, for example, requires quite little. The
budgetary burdens of synchronisation and comparative study are also independent of a bill’s need
for discussion. Since not all bills require comparative study, the inefficiencies of the current system
become all the more glaring.

The quality of human resources must also improve if legislative personnel are to support the legislative
process effectively. This includes the Legal Sector Deputy, the Data and Information Processing
Study Centre and of course expert staff and commissions. The Legal Sector Deputy’s duty is to
provide technical, administrative and expert advice on legislation. The Data and Information Study

18 National StrategY ON access to justice

Centre is tasked with preparing studies, data and information processing. With relation to human
resource management, there is currently no planning, no inter-unit work relationship, and no analysis
of relative workloads.

In response to the poor quality of human resources, the Parliamentary Secretariat has formed a
Parliamentary Performance Improvement Team. The Team notes that the major problem with the
legislative process relates to the poor quality of laws it produces, many of which bring no direct
benefit at all. This is due in part to a backlog of unfinished laws, a lack of transparency in the
discussion process (and exclusion of the public), and the missed targets of the National Legislative
Programme. Unfortunately, these findings have not been accompanied by an implementation plan,
and there is no guidance therefore as to how the recommendations should be carried out, who must
take responsibility, and how much time will be needed.

Poor Integrity and Performance of Law Enforcement

With reference to Presidential Directive No. 5/2004, two measures have been provided for gauging
the integrity and performance of law enforcement agencies and institutions: the compliance of
government (read: law enforcement officials) in reporting assets, and performance reviews with
reference to internal performance and service to the public. The following data were obtained from
the Corruption Eradication Commission’s report of 31 August 200723 and 10 September 200824 in
relation to the reporting of assets:

Table 1: Government Officials Reporting Assets and Wealth

GOVERNMENT NUMBER OF THOSE NUMBER ACTUALLY RATE OF

SECTOR REQUIRED TO REPORT REPORTING COMPLIANCE

2007 2008 2007 2008 2007 2008

Executive 62.703 70.712 42.005 60.613 66,99% 85%

Legislative 23.791 16.341 16.654 16.271 70% 99%
Judicial 20.424 17.685 9.206 12.498 44% 70%
State-owned
7.426 6.154 5.434 5.986 73,18% 97%
enterprises

The data above demonstrate that in 2007, compliance rates were lowest in the judicial branch. In 2008,
these compliance rates rose significantly, although they remain the lowest among the four branches.
The trend reveals a positive development, though one may legitimately ask whether the increase is
due to an anti-corruption agenda in law enforcement agencies, or to personal interests among law
enforcement officers wishing to obtain promotions and salary increases. Rates of compliance must
continue to rise within the judicial institutions until they are fit to serve as a model for others.

Every institution has its own difficulties to resolve in the matter of internal performance, and in
matters of serving the public.

Police Performance
The police have not yet taken any initiative in formulating performance standards for the measurement
of success and legitimacy. Current performance standards refer to the programmes or standards of
other organisations—implementation of the National Action Plan on the Eradication of Corruption,

National StrategY ON access to justice 19

for example, where the National Police have understood reform to alter the paradigmatic relations
between police and society. While communication between the police and the public began as one-
sided, now the police aim at dialogue and a productive partnership with society.25 Besides this, the
police have begun to enforce standards in public service, on the basis of Ministry of Administrative
Reform Directive No. 63/2003 on General Standards for Public Service, as seen also in the new
service strategy entitled Cooperative Administrative Systems Under One Roof, using the Samsat
system of first-in first-out, and computerised testing of drivers’ licenses and driving manuals. The
police state that in 2006 they investigated 223 cases of corruption. Out of these, 98 cases were
related to regional governments, 27 cases to State-owned enterprises, 32 to contracting, and 66 to
other matters. Out of all the cases, 33 have been handed over to public prosecutors, while 190 are
still under investigation.26 In order to improve cooperation with other law enforcement agencies,
the National Police Chief and Attorney General have issued a regulation in common and begun a
collaboration between the police, the State Financial Bureau/BPKP, and the State Secretariat in the
issuing of warrants, as well as trainings and workshops.27

Performance reports for policing in 2006-2007 indicate progress. Still, this does not end the problem
of corruption within the police force. A survey carried out by Transparency International in 2007 and
quoted in the UNDP Human Development Report, Asia-Pacific 2008,28 states that the police are one
of the most corrupt institutions in Indonesia.29

Public Prosecutors’ Performance

A number of worthy reform initiatives have taken shape within the Office of the Attorney General,
including bureaucratic reforms that began in 2005, agreements of the national conferences, and
instruments for evaluating performance (based on Attorney General Regulation No. 69/2007 on
Provision of Monitoring in the Office of the Attorney General). A Prosecutorial Commission was also
formed and provided a positive contribution to the monitoring of public prosecutors. Still, all of these
initiatives are in their initial stages and have not yet realised significant outcomes. Several concepts
and instruments still require piloting and implementation, and the success of these initiatives cannot
be separated from the reform agenda of other law enforcement agencies, including the police, judges,
and civil society organisations.

Supreme Court Performance

Supreme Court reform has already resulted in a number of accomplishments, as indicated by
improved performance. In relation to monitoring, for example, the Court now has an Assistant Chief
of Monitoring, a monitoring body, and standards for monitoring (Chief Justice Decree No. 080/
KMA/SK/VIII/2006). The Court has also eased information services to the public (Chief Justice
Decree No. 144/KMA/SK/VIII/2007). Still, many of these programmes have yet to achieve full
implementation. Making information accessible to the public, for example, has met with several
obstacles. First, many courts are not yet aware of or do not yet comprehend the policy; second, many
courts do not yet have an information officer or an information desk, as is provided for under Chief
Justice Decree No. 144/KMA/SK/VII/2007; third, attitudes and behaviour of court staff, who tend to
treat information as a commodity, have not yet been altered.

A normative framework as basis for reform of the Supreme Court bureaucracy and improvement
in the performance of judges still requires a long time to achieve results, as many problems in the
performance of judges remain. Public complaints about judicial performance reached 4,257, with
the breakdown as follows: 388 complaints in 2005; 1,456 complaints in 2006; 1,557 in 2007; and
856 in the fi rst half of 2008. Out of all these, only 308 complaints led to investigations of the judges

20 National StrategY ON access to justice

involved. Only 27 cases resulted in recommendations to the Supreme Court for sanctions, dismissal,
suspension, or even written condemnation.30

The Punishment Paradigm and Performance of Corrections Institutions31

The corrections institutions responsible for carrying out the decisions of the courts represent the
terminal point of the judicial process. Generally speaking, the difficulties of corrections institutions
stem from a paradigm of punishment. Chapter I on General Regulations, Article 1(1) of Law No.
12/1995 on Corrections states that “Correction is an activity undertaken for the cultivation of
correctional inmates, based on a system, institutions, and methods representing the final stage in
a system of criminal justice.” Articles 2 and 3 state that the corrections system prepares inmates
for healthy reintegration into society where they may once again be free, responsible citizens. The
current paradigm remains one of imprisonment; police, public prosecutors, and even judges therefore
tend to encourage the imprisonment of as many perpetrators as possible, and the prisons have grown
increasingly overcrowded. Correctional functions (including security, rehabilitation, and guidance)
therefore cannot possibly be fulfilled.

The performance of corrections institutions is also influenced by their human resources, budgets,
management, and attitudes toward the crimes of women and children. To deal with these problems,
the Minister of Law and Human Rights produced a Blueprint for Reform of Correctional Institution
Practices (Minister of Law and Human Rights Regulation No. 01.ot.02.02/2009). This Blueprint
pertains to the corrections system, the relationship between the corrections system and other law
enforcement agencies in the administration of an integrated criminal justice system, a review of
organisational management, human resource management, planning and budgeting, models of
guidance, service, management, and information services, and monitoring of public participation
and management changes. This Blueprint provides a much more detailed basis for the Directorate
General of Corrections in planning, implementing, and evaluating performance functions.

Performance of Independent Commissions

Post-reform era legal developments have largely set out to advance institutions while creating new
quasi-governmental institutions and independent commissions. Several institutions have been initiated
for external monitoring of law enforcement, such as the National Police Board, the Prosecutorial
Commission, and the Judicial Commission, when internal monitoring has been unsatisfactory. These
independent commissions possess varying authorities, engage in institution building, and involve
independent professionals in their work. Nonetheless, these commissions also suffer from certain
weaknesses.

There are several obstacles to improving the performance of the Prosecutorial Commission, for
example. First, the Prosecutorial Commission is charged only with providing recommendations, not
forward planning and oversight. Second, Presidential Regulation No. 18/2005 does not optimise the
public’s role in selecting commissioners and accessing the performance reports of the Prosecutorial
Commission, although these reports are submitted to the President and Attorney General. Third, the
Commission Secretariat is located within the Attorney General’s office, and its officials, budget, and
support staff all originate from that office. This has obvious consequences for the Commission’s
independence, as does the Attorney General’s decisive role in determining the composition of
the Secretariat. There are no experts working with the Commissioners. Fourth, there are various
limitations to human resources, which are not adequate to the breadth and complexity of the matters
confronted. Finally, the Prosecutorial Commission is not involved in the reform agenda for public
prosecutors, and it has no involvement in the recruitment of new public prosecutors.

National StrategY ON access to justice 21

The Judicial Commission also faces obstacles in optimising performance due to the limits of its
authority. Up to now, its authority has only extended so far as the recruitment and monitoring of
judges. It does not have the authority to carry out professional development and ethics education.
Such powers would help the Commission to improve the knowledge, behaviour and prestige of
judges to a level nearer social expectations. Thus far, cooperation between the Judicial Commission
and the Prosecutorial Commission remains limited. Although the Blueprint already acknowledges
the Judicial Commission’s necessity in the reform programme of the Attorney General, still the
Supreme Court is not fully on board. As a result, in several instances, recommendations of the
Judicial Commission giving sanctions to judges are not acted on by the Supreme Court. There is
hope in the Supreme Court Law of 18 December 2008 which provides opportunities for effective
oversight to be carried out by the Judicial Commission, by way of a section on the composition of a
Council on Judicial Integrity. The Council’s members would originate from the Judicial Commission
and the Supreme Court—the former in greater numbers. With the Council composed thus, one may
hope that sanction mechanisms will run more effectively and the authority of judges will improve.

Performance of Legal Professionals

Another important area of the reform agenda is the performance of legal professionals, particularly
advocates. At least three urgent issues arise in relation to advocates’ roles: integrity, quality of legal
service, and provision of free legal aid. The problem emerges when advocates define justice as a
matter of winning cases, rather than testing truth and pursuing justice. Thus, advocates face various
types of ethical challenges. Although advocate organisations do have mechanisms to enforce ethical
codes, many advocates do not respect these mechanisms.32 To assure the quality of advocates, special
mechanisms for their education have been established, but the results are not yet satisfying.

Another problem is advocates’ minimal awareness of and sensitivity to the poor and the marginalised.
Although the law establishes requirements for advocates to provide free legal aid, and there are legal
aid posts set up outside of the national courts, the practice does not run at its potential. Even free legal
aid must be paid for somehow. Quite often when advocates provide clients with legal aid, they do not
provide education regarding the legal issues surrounding the matter.

Advocates working with NGOs provide much of the current legal aid. Pro bono cases are often
handed over to the Legal Aid Institute or other NGOs concerned with legal aid. Despite that, the
Government provides no subsidies to these advocates or organisations (see Section on Access to
Justice in Legal Aid, below).

3.1.2 Legal Education

Legal education is not just a means of equipping future legislators and law enforcement officials with
facts and skills; it is also a process of forming character. Thus far, legal education has not become a
focus of legal development, and so several problems in the education system persist:
1. The current system differentiates between academic theory and practice. In fact, within the realm
of legal education, there can quite often be no reference to practice at all. As a result, the material
taught has little hope of addressing the concerns of the public.
2. The legal education curriculum, including the departments, teaching methods (primarily
memorisation) and core curriculum agreed to contains only 120 units, so that teachers must
struggle with one another to insert their own subjects. Thus efforts arise to remove the social
sciences so that they do not enter into the core curriculum.

22 National StrategY ON access to justice

3. Legal education has failed adequately to educate the community, with the result that many groups
are prepared to break the law, sometimes using violence to achieve their aims.

3.1.3 Facilities and Infrastructure of Justice

Improving community access to justice requires adequate facilities and infrastructure, including
easily accessible and user-friendly court buildings, adequate numbers of professional and sensitive
court officials, various options for the resolution of disputes, and even the availability of complaint
procedures for those dissatisfied with the performance of the institution.

The inadequacy of court facilities and infrastructure is a result of the “two roof” system. Under
this system, the court budget is funded from the Department of Law and Human Rights budget.
The amount allocated to courts is very small, and as a result many buildings are inadequate, far
from residential areas, and possess only limited facilities. If a “one roof” system were adopted, with
the Supreme Court taking responsibility for managing its own budget, improvements would slowly
take place. The two priorities within the Supreme Court’s reform agenda are renovating facilities
and infrastructure and ensuring the availability of a sufficient number of professional judges. The
building of courthouses is now progressing gradually, but of course it has not yet reached all regions.
The problem of limited court facilities has also arisen in the context of increasing land development
in cities and towns. Many newly developed regions do not yet have a courthouse. For example, in
Bangka Belitung Province, there are three districts that do not yet have an Office of Public Prosecutors
or a courthouse. The nearest court building is between 200 and 500 kilometres away from these
districts, making community access extremely difficult.

The number of law enforcement officers remains inadequate. In 2007, the total number of police
officers in Indonesia was 360,381, of whom 11,706 (3.25%) were women.33 This translates to roughly
one police officer per 550 citizens. With this low a ratio, it is very difficult for the police to provide
the best possible service to the community.

From a gender perspective, the shortage of female police officers is a problem, particularly when
police need to deal with women and children. Low levels of professionalism and insensitivity are
also major problems, particularly in police interactions with the poor.

3.1.4 Legal Services, Complaints and Dispute

Resolution
The ability to find the right forum for dispute resolution is an important factor in people’s satisfaction
with the justice system. Forums for dispute resolution exist at both the formal and informal levels,
but, as noted in the World Bank’s research findings (Box 3.1 above), very few among the poor and
marginalised use or benefit from the formal judicial system. Only those who can trust in and rely
on the court prefer formal systems of justice. In practice, many prefer to resolve matters outside the
formal justice system—they understand alternative systems to be faster, cheaper, and simpler. The
same World Bank research shows that the poor tend to prefer village councils (42%), customary
leaders (35%), and the police (27%). The data show clearly that a strategy is needed to strengthen the

National StrategY ON access to justice 23

capacity of village governments and customary leaders in resolving disputes, so that these informal
forums are not counterproductive.

Many cases demonstrate how the use of informal dispute resolution mechanisms can fail to provide
justice for the poor and marginalised, especially women and children. For example, several cases in
Poso, involving government officials who had impregnated women in local villages, were resolved
through traditional adat arrangements whereby the man merely paid a fine without being held legally
responsible.34

There are also positive cases of informal dispute resolution. One such case related to a child thief in
West Sulawesi. The child was required to meet and make peace with the victim and return the stolen
goods. Finally, the child was made to clean the mosque. The child not only stopped stealing but also
became a more devout Muslim.35

A further example can be found in Maluku, where in 2005 a regional regulation was passed regarding
Negri (kingdoms) as unified customary societies. This regulation is an initiative directed towards
achieving post-dispute recovery, restoring the system of government in place prior to Law No.
5/1979 on Village Government. The regulation changes several statutory terms, with desa becoming
negri and village chief becoming raja. This regulation applies to all villages, and regulates a range of
issues from land certification to dispute resolution. All disputes are brought to the negri for peaceful
resolution. Only if this is unsuccessful should the dispute be resolved via formal mechanisms. Cases
already resolved include land disputes, family disputes, and minor criminal matters.36

Legal services for the poor and marginalised have not yet improved in a meaningful way. The
poor and marginalised are not aware of where to take complaints, especially when they are faced
with court personnel capable of manipulating their cases. The Supreme Court has taken several
steps to reform the judicial system. It has improved access to information about judicial processes
through Chief Justice Decree No. 144/KMA/SK/VIII/2007, which was followed by several public
statements on case fees, case flow, and case handling. But these measures have not been enough to
eliminate irregularities within the courts, especially as they have not been implemented evenly in
all courthouses.37 Meanwhile, many continue to face injustice due to the poor decisions of informal
justice mechanisms, including religious or community leaders, and they do not know where to seek
redress.

Chief Justice Decree No. 144/KMA/SK/VIII/2007 was reinforced by Law No. 13/2007 on Freedom
of Information. This law mandates the formation of an independent Information Commission,
with authority to handle public complaints regarding the community’s right to public information.
Unfortunately, this institution is not completely independent, because Article 25 states that the
Commission (with a membership of seven people) must include members from both the Government
and the community. The presence of government commissioners would seem very much to undermine
the independence of this Commission. Worse, since the law does not specify precisely how many
government commissioners are to be appointed, there are real fears of government domination.

In a related matter, complaint-handling institutions are only available in the formal judicial
institutions, and even these limited services are not available in all regions. The authority of these
complaints institutions is also limited, and their mechanisms are unclear. Internally, the police,
who often take an active role in community dispute resolution, do not provide a complaints desk
in every office. Externally, the Police Commission has recently taken the initiative to establish a
community complaint mechanism. The Prosecutorial Commission has not collaborated with any

24 National StrategY ON access to justice

external stakeholders, whereas the Judicial Commission has begun building a variegated network of
stakeholders in all regions to assist in the supervision of judges. This last system is not yet working
optimally however, because not every courthouse has a complaints post, and not every complaints
post is run with adequate transparency.

The Ombudsman represents yet another initiative to address community complaints against the
performance of public service institutions. The Ombudsman’s status was reinforced by the Law No.
37/2008 on the Ombudsman of the Republic of Indonesia, intended to elevate the Ombudsman’s
status.

3.1.5 Legal Awareness

Another important pillar of legal reform is community legal awareness. The positivist legal paradigm
often assumes that the community’s legal awareness is equal to the community’s obedience to the
law, or more precisely, its obedience to law enforcement officers. The community is understood as a
legal object that merely receives information as to the content of the law it obeys.

In relation to access to justice, community awareness should be defined as a process by which the
community develops awareness of basic rights and a capacity to assert these rights either through
formal or informal legal channels. The definition of community awareness should include reference
to efforts at strengthening the community’s capacity for involvement in the process of legal and
judicial reform. This too can serve to create public demand that will speed up the reform process.

The role of the community has been recognised in several pieces of legislation, such as Law No.
10/2004 on the Formation of Laws and Regulations, and Government Regulation No. 71/2000 on
Community Involvement in the Eradication of Corruption. However, intimidation and threats of
criminal prosecution still occur. An Indonesian Corruption Watch (ICW) report shows that between
1996 and 2007 there were at least 40 whistleblowers38 who experienced threats, dismissal, transfer,
intimidation, violence or criminal prosecution. Activists in Northern Sulawesi are still targeted with
criminal prosecution, and there is currently a case in which an activist has been arrested for demanding
an investigation of possible criminal corruption by the Mayor of Tomohon. Similarly, an activist
demanding budget transparency in Merauke was cast out of the city by the regional government.39

In response to this problem, the Corruption Eradication Commission has begun to collaborate with
the police. The Chief of the Criminal Unit of the Indonesian National Police (Kabareskrim) has
instructed all Provincial Chiefs of Police (Kapolda) to prioritise reported corruption cases before
those of defamation and nuisance—often used against those who report corruption.40 Such policies
to protect whistleblowers must be strengthened.

Law No. 13/2006 on Witness and Victim Protection can help address the problem of intimidation.
The role of the recently established Witness and Victim Protection Agency is to ensure the physical,
political and economic security of the entire community.

National StrategY ON access to justice 25

3.1.6 Legal and Court Reform for the Community
Policies that protect poor and marginalised communities are understood as “ethical politics.” The
law related to pro bono case fees in Law No. 2/2006 regarding the Court of General Jurisdiction
was amended by Law No. 8/2004, and the law related to pro bono legal aid was amended by Law
No. 18/2008 on Lawyers. Unfortunately, these few new laws are grossly outweighed by the large
number of existing laws that cause impoverishment in the community, such as those related to natural
resources (see the Chapters on Access to Justice in Land and Natural Resources and in Legal Aid).

Problems also arise at the implementation level. Although some existing regulations state that poor
people can bring cases to court at no cost, in practice it is not so easy. Applicants must provide a letter
from the village/district head explaining their inability to pay. In obtaining these letters, applicants
frequently encounter small-scale corruption, such as illegal demands by officials for money for
services.

Although law enforcement officials are bound by codes of conduct, many still complain that
the attitude and behaviour of law enforcement officers are inconsistent with prevailing codes of
conduct. The Judicial Code of Conduct requires that a judge be fair, honest, wise, independent,
and responsible. He must possess integrity and self worth, be disciplined, humble, and demonstrate
professional behaviour. This Code of Conduct was originally conceived at the 1966 Special Congress
of the Indonesian Judges’ Association (IKAHI) in Semarang. Decades later, it was discussed again
at the National Assembly VIII of IKAHI in Bandung, 2000. It was further improved upon at the
conventions of the Supreme Court in Surabaya, 2002 and 2006. The problem appears to be inadequate
implementation and supervision of the Code of Conduct. The challenge is how to implement the Code
of Conduct effectively, ensuring that judges appreciate its importance, and that sanctions are imposed
on those who violate it. A further challenge is how to ensure that the implementation of the Code is
compatible with the existing internal supervision mechanisms, both in function and operation.

3.1.7 National Strategy on Legal and Judicial

Reform related to Access to Justice
Legal and judicial reform is intended to help protect the access of the poor and marginalised to
justice. Generally, there must to be a movement from a legal paradigm that prioritises legal certainty
(the positivist paradigm), toward one that prioritises justice and functionality. This change of
legal paradigm must be reflected in the politics of legal development, which must be carried out
comprehensively (in law-making, education, and institutions). Legal development must also respect
legal pluralism. In the context of fulfilling and improving people’s access to justice, legal and
court reform require improvements in the functioning of institutions, particularly law enforcement
institutions, and strengthening in the culture of socio-legal perspectives that respect the rights of the
poor and marginalised to justice. These strategies are elaborated thus:

1. The development of a model of legal development according to the values of Pancasila

and the Constitution
Implementation of Article 1(3) of the Constitution of 1945 requires affirmation of a legal system
appropriate to the legal challenges, the society and the personality of the Indonesian community.

26 National StrategY ON access to justice

 This will help determine the right direction for legal development. This clarification could be
achieved through an amendment to the Constitution, or at least a revision of Law No. 17/2005.
Amendment of the 1945 Constitution would be preferable, as it could also be taken as an
opportunity to address other constitutional issues. Such revisions are necessary to ensure that
the goals and direction of legal development remain relevant to current conditions and future
challenges.

2. Improving legislative politics

Improving legislative politics involves reforming both the quality and the process of law-making.
In terms of process, strategies must be developed that outline the priorities for discussion of
draft laws, provide means by which to achieve genuine community involvement, and detail
ways to ensure that deliberations for each draft law proceed according to democratic principles.
To achieve reform of legislative processes, relevant steps will include the following: (a) revise
the rules of conduct for Parliament, including priority standards for draft laws, mechanisms for
genuine community involvement, and processes to ensure democratic deliberations; (b) improve
the effectiveness of legislative support units, including the Deputy for Legislation, the Centre for
Research, the Centre for Data and Information Processing, and expert staff and commissioners;
and (c) harmonise legal regulations both within and across sectors to ensure that laws do not
contradict either the Constitution or the needs of continued national development. Legal and
regulatory harmonisation must be implemented in a way that claims both political and intellectual
legitimacy. Thus, there should be a firm legal foundation for a harmonisation working group that
involves both higher education and NGOs.

3. Improving the performance of law enforcement agencies, bureaucracy, and state

commissions
Although the police, public prosecutors, courts and corrections institutions are currently
undergoing reform, the community has not yet felt the impact of these efforts. Due to the low
performance of many of these institutions, not excluding public services, the number of cases
facing these institutions indicates the dire need for their reform. After this reform process, the next
step will be to strengthen and entrench the initial reforms in a number of ways. First, evaluate
the achievements of the current reform process. Second, synthesise the reform agendas for the
various law enforcement institutions and the various teams initiating reform. Third, strengthen the
external supervisory institutions, so they can have a more significant role. Fourth, ensure that the
revised Law on the Judicial Commission will strengthen the status of the Judicial Commission.
Fifth, revise Presidential Regulation No. 18/2005 on the Prosecutorial Commission, and the
Presidential Regulation on the Police Commission, in order to maximise the roles of these two
institutions.

4. The development of the formal legal education system

This strategy is intended to improve the sensitivity of courts and actors within the legal system
to the values of community justice, encourage solidarity with the poor, and develop the will to
improve the image of the law and justice in Indonesia. There are several ways in which legal
education can improve in order to support this strategy: (a) re-examine the focus of legal education,
which presently tends toward technical legal skills, so as to address concerns for political, social
and cultural context; it should balance practice with academic theory, and improve sensitivity to
the injustice experienced by the poor and marginalised; (b) review teaching methods, with a view
to emphasising understanding over memorisation; and (c) strengthen emphasis on community
legal service institutions and law clinics.

National StrategY ON access to justice 27

5. Strengthening community legal culture
The strengthening of community legal culture aims at strengthening the involvement of the
community in legal reform, so that people are aware of their rights and the importance of accessing
justice. The involvement of the community in legal reform can be measured by the extent to
which people are able and willing to fight for their rights by legal means. This involvement is also
evidenced by the ability of the community to influence policy-making and ensure community
justice. Strengthening community legal culture involves the following steps: (a) strengthening
institutions providing paralegal services; (b) examining community initiatives for the resolution
of conflicts outside the formal justice system; (c) strengthening civil society institutions
monitoring the performance of law enforcement agencies; (d) improving community access to
information by opening complaints and information posts at police stations, public prosecutors’
offices, courts and community institutions; and (e) strengthening community participation in the
legislative process.

28 National StrategY ON access to justice

 3.1.8 ACTION PLAN ON ACCESS TO JUSTICE IN LEGAL AND JUSTICE SECTOR REFORM

Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
1. Many obstacles 1. Mainstream the 1.a. Create standards for 1.a.1. A team comprising of Community participation National Development
remain in the principle of access to harmonisation of laws social organisations and in shaping laws and Planning Agency,
harmonisation of justice accross all policy, and regulations based academics, for formation regulations, and Department of Law and
legal regulations and law and regulatory on access to justice and harmonisation of community consensus on Human Rights, Centre for
principles of access to formulations regulations substance of regulation. Study of Law and Policy,
justice Neither vertical nor National Law Reform
horizontal conflict between Consortium
laws and regulations
1.a.2. Standards for National Development
regulatory harmonisation Planning Agency,
Department of Law and
Human Rights, Centre for
Study of Law and Policy,
National Law Reform
Consortium
1.a.3. Legal basis (e.g. President
Presidential Decree) for
strengthening the
aforementioned standards of
regulatory harmonisation

National StrategY ON access to justice

29
30
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
1.b. Circulate the 1.b.1. Consultation on Team for setting
standards for regulatory standards for regulatory harmonisation standards
harmonisation in the harmonisation in the (National Development
Parliamentary formulation of new legislation Planning Agency, Department
Secretariat and in the of Law and Human Rights,
legal section of various National Law Reform
Departments Consortium, Centre for Study
of Law and Policy)
1.b.2. A pilot harmonisation Team for setting
project is established with the harmonisation standards
aforementioned team (National Development
Planning Agency, Department
of Law and Human Rights,
National Law Reform
Consortium, Centre for
Study of Law and Policy),
Parliamentary Secretariat
staff and departmental legal
staff
1.c. Promote the 1.c.1. The harmonisation Team for setting
standards in Regional standards are understood harmonisation standards
Consultative Councils and employed in the (National Development
(DPRD) and in the legal formulation of regional Planning Agency, Department
sections of the local regulations of Justice and Human
governments Rights, National Law Reform
Consortium, Centre for Study
of Law and Policy)

National StrategY ON access to justice

1.c.2. Institution of a pilot Team for setting
project for local regulatory harmonisation standards
harmonisation (National Development
Planning Agency, Department
of Law and Human Rights,
National Law Reform
Consortium, Centre for Study
of Law and Policy) DPRD
and local government legal
staff
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
1.d. Enact regulatory 1.d.1. Formation of a Harmonisation Team
harmonisation already harmonisation team
recommended as one
1.d.2. Catalogue of issues Harmonisation Team
component of a pilot
prepared for pilot project
project
1.d.3. Reporting on results of Harmonisation Team
regulatory harmonisation
1.e. Continue 1.e.1. Analysis in the form Parliament/Assembly
recommending and of academic draft (if still in Secretariat and the legal
implementing the form of proposed law/ staff of departments/local
recommendations for regulation) governments
regulatory harmonisation
at the regional and 1.e.2. Suggest judicial The initiator of judicial review
national levels review (if law/regulation is will be appropriate to the
recommended for withdrawal) object of the regulation
1.e.3. Suggest to the Parliament/Assembly
National Legislative Secretariat and the legal
Programme/Local Legislative staff of departments/local
Programme (if law/regulation governments
is recommended for
amendment)
2. Legislative support 2. Improve the 2.a. Prepare a blueprint 2.a.1. Decision of Secretary The Parliamentary Secretary General of
units are ineffective performance and and strategic plan for General of Parliament on Secretariat is of sufficient Parliament, Centre for Study
integrity of the the Parliamentary and Blueprint Composition Team quality and integrity to of Law and Policy, National
Parliamentary and Assembly Secretariats support the legislative Law Reform Consortium
Assembly Secretariats process effectively
2.a.2. Blueprint and strategic Secretary General of

National StrategY ON access to justice

planning documentation Parliament, Centre for Study
of Law and Policy, National
Law Reform Consortium
2.b. Monitor 2.b.1. Programme Secretary General of
implementation of implementation report and Parliament, Centre for Study
blueprint and strategic evaluation results of Law and Policy, National
plans Law Reform Consortium

31
 TIME Responsible Party
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/

32
Y1 Y2 Y3 Y4 Y5 Agency)
3. The reform agenda 3. Integrate access 3.a. FGD 3.a.1. Law enforcement Reform agenda facilitates National Development
focuses on institutional to justice principles in on access to justice in agency reform programmes people’s access to justice Planning Agency, Leip,
and managerial issues the current institutional the reform agenda of law reflect efforts to improve MAPPI, PGR, National
in the law and order reform agendas of enforcement institutions access to justice for the poor Law Reform Consortium,
apparatus; little has been police, public and marginalised Supreme Court Reform
done to improve public prosecutors, Team, Public Attorney
service, and the public, and courts Reform Team, Police Reform
therefore, has seen little Team
change
3.a.2. Consensus on National Development
indicators and mechanisms Planning Agency, Leip,
for programme evaluation MAPPI, PGR, National
Law Reform Consortium,
Supreme Court Reform
Team, Public Attorney
Reform Team, Police Reform
Team
3.b. Periodic meetings 3.b.1. Documentation of all
for the monitoring and meetings
evaluation of programme
implementation

3.b.2. Consensus on National Development

evaluation response Planning Agency
strategies

3.c. Studies of 3.c.1. Study on the

effectiveness of special effectiveness of special
jurisdictions jurisdictions, and
recommendations for their

National StrategY ON access to justice

improvement
4. External monitoring 4. Strengthen external 4.a. FGD to continue 4.a.1. Formulation of agenda External monitoring National Development
agencies have little monitoring bodies evaluation of existing for ongoing action agencies are strong and Planning Agency, KHN,
authority and little commissions, independent National Law Reform
support from the particularly in terms of Consortium, Legal Aid
secretariat benefits and efficiency, Foundation, KY, National
including recruitment Police Board, Public
systems, salaries, etc. Attorneys Commission,
Ombudsmen
4.b. Seminar to discuss 4.b.1. Amend the presidential National Development
Presidential Decrees directives on the National Planning Agency, KHN,
(Inpres) on the Police Police Commission and National Law Reform
Commission and Prosecutorial Commission Consortium, Legal Aid
ProsecutorialCommission Foundation, KY, National
Police Board, Prosecutorial
Commission,
Ombudsman
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
4.c. Carry out advocacy 4.c.1. Documentation of all National Development
(lobbying, campaigning, activities Planning Agency, KHN,
etc) to encourage National Law Reform
amendment of the Consortium, Legal Aid
Presidential Directives Foundation, KY, National
mentioned above Police Board, Prosecutorial
Commission,
Ombudsman
5. External monitoring 5. Establish cooperation 5.a. Profile campus/ 5.a.1. Listing and profi le of Constructive cooperation KY, National Law Reform
agencies operated by between existing community regional external monitoring between the government Consortium, PGR
campus/community do campus/community- organisations’ monitoring agencies (including and community-initiated
not function at optimal initiated monitoring law enforcement information on levels of monitoring programmes
levels agencies agencies cooperation with national
monitoring agencies)
5.b. Seminar to formulate 5.b.1. Formulation of a joint National Development
joint monitoring monitoring programme, e.g. Planning Agency, KHN,
programmes among coordinating posts for fi ling National Law Reform
campus/community complaints under one roof Consortium, Legal Aid
organizations Foundation, KY, National
Police Board, Prosecuorial
Commission,
Ombudsman
5.c. Workshops with 5.c.1. Commitment from National Development
regional governments regional governments and Planning Agency, KHN,
and law enforcement law enforcement agencies for National Law Reform
agencies to support joint supporting joint monitoring Consortium, Legal Aid

National StrategY ON access to justice

monitoring programmes programmes, legally and Foundation, KY, National
fi nancially Police Board, Prosectorial
Commission,
Ombudsman, Decrees
5.d. Periodic meetings 5.d.1. Continued adherence National Development
between regional to the commitments of Planning Agency, KHN,
monitoring regional governments and National Law Reform
organisations, law enforcement agencies Consortium, Legal Aid
governments and law Foundation, KY, National
enforcement agencies Police Board, Public
Attorneys Commission,
Ombudsman, regional
governments, regional legal
officials

33
34
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
6. People’s 6.a. Development 6. a. Curriculum and 6. a.1. Evaluation results Mainstreaming of Director General of Higher
understanding of law of the principles of teaching-method on curricula and teaching access to justice in the Education, ILRC, Legal
remains inadequate, access to justice evaluations involving methods, based on university law education Aid Foundation
as does the role of (particularly people’s organisations carrying principles of access system
formal awareness of law) out alternative/social to justice (people’s
legal education; legal in the formal legal legal education understanding of law in
theory and practice education system particular) and involving
have not yet achieved all stakeholders
synergy 6.a.2. Formulation of Director General of Higher
curricula and teaching Education, ILRC, Legal
systems oriented Aid Foundation
toward community legal
awareness
6.b.1. Workshops 6.b.1. Formulation Director General of Higher
involving LPM, LBH, of community legal Education, ILRC, Legal
and attorneys to education modules and Aid Foundation
formulate community programmes oriented
legal education toward people’s autonomy
and resolution of legal
conflicts
6.b.2. Community 6.b.2. Report on activities Legal Aid Foundation,
legal education LPM, Local NGOs,
6.b.3. Meetings 6.b.3. Financial support National Development

National StrategY ON access to justice

between local Planning Agency, Local
governments and government
funding agencies
to confirm financial
support
6.b.4. Periodic 6.b.4. Report on Legal Aid Foundation,
meetings for evaluation results LPM, local NGOs,
monitoring regional
and evaluating the governments, National
implementation of Development Planning
community legal Agency
education
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
7. Criminalisation of 7.a. Improve 7.a. Expand the 7.a.1. Report on People can play an LEIP, Supreme Court
witnesses and lack implementation evaluation programme evaluation results active role in law reform Reform Team
of access to court of Supreme for the Supreme with greater ease and
information Court Decree on Court Decree on safety
accessibility of court accessibility of court
information information
7.b. Coordinate with 7.b.1. Commitment from National Development
the Attorney General, the Head of Police, Planning Agency, Attorney
Head of Indonesian Attorney General and General, National
National Police, and Director General of PoliceChief, Director
Director General of Correction Institutions to General
Correction Institutions advance transparency Correction Institutions
to guarantee programmes
transparency in the 7.b.2. Every offi ce Regional law enforcement
aforementioned contains an information agency leaders
institutions system with methods,
budgets and timelines
appropriate for case
handling
7.b.3. Every offi ce has
a designated offi cer for
providing information to
the community

National StrategY ON access to justice

7.b.4. Every agency
has arrangements
guaranteeing the rights
of people to access
information
7.c. Coordinate with 7.c.1. Shared commitment National Development
Witness and Victims’ to optimising the work of Planning Agency, Witness
Protection Agency the Witness and Victims and Victims Protection
Protection Agency Agency, National Police
Chief, ELSAM

35
36
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
8. Court offices Officials brought 8.a. Programme 8.a.1. People report their People obtain legal Police, Legal Aid
are geographically closer to the people for registering complaints with less service regardless of Foundation, LPM,
inaccessible people’s complaints expense and greater ease geography paralegal NGOs
in public places:
markets, plantation
estates, forests,
etc. Cooperation of
reporting between law
enforcement agencies
and coordinating
posts
9. Institutions and Improve the 9.a. Carry out 9.a.1. Formation of Institutions and HUMA
mechanisms for effectiveness of research on the a team, budget and mechanisms for
handling social dispute management effectiveness of technical plan for research resolving conflicts
conflict outside the outside of court adat procedures and outside the courts play
courts, including adat alternative an important role in
(customary) mechanisms in obtaining social justice
mechanisms, village resolving social confl
heads, etc, often ict from the
create problems due perspective of justice
to poor understanding for the victim
of dispute resolution, 9.b. Circulate the 9.b. Commitment to
and due to results of research strengthening alternative
inadequate complaint among the institutions institutions for dispute

National StrategY ON access to justice

mechanisms for those involved (adat chiefs, resolution
injured in village heads, etc)
their procedures.
9.c. Create a programme 9.c.1. Programme for
In criminal cases,
to follow up on research strengthening alternative
confl icts can emerge recommendations
with police dispute resolution
institutions
3.2 Access to Justice in the Legal Aid Sector
Legal aid is a crucial access to justice issue for the poor and marginalised. The number of people who
require legal aid in Indonesia is enormous. In 2007, at least 28,000 people filed legal matters with,
and received legal aid consultation from, the Indonesian Legal Aid Foundation (YLBHI) and other
legal aid institutions (LBH). The total is even higher when we include the number of complaints and
justice seekers dealt with by legal aid institutions run by university campuses, political parties, and
community organisations, as well as those handled by legal aid posts and emergency legal aid posts.

Table 2
Government Investment in Legal Aid for Several Democratic Countries
Public Investment in Legal Aid
Country Public Investment in Legal Aid
per $10,000 GDP
United States $800 million $0.80
Germany $520 million $2,25
Ireland $26.9 million $2,35
Finland $35.6 million $2,35
Canada $287 million $2,80
New Zealand $30 million $2,25
Hong Kong $67 million $4,07
Scotland $33.5 million $4.90
Netherlands $300 million $6.90
Northern Ireland $27 million $7.00
England $1.24 billion (excluding $7.90 (excluding immigration)
immigration) $10.50 (including immigration
$1.61 billion (including
immigration)
Source: Quoted from http://www.ncbp.org/

Legal aid is internationally recognised as a human right. There are many international human
rights standards that emphasise the importance of community access to legal aid. The Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights – which
have been ratified through Law No. 12/2005 – guarantee equality before the law and the right to legal
protection.41 Another example is the Action Programme adopted by the Second World Conference
on the Eradication of Racism and Racial Discrimination in 1983, which requires States to provide
legal aid for impoverished groups suffering from discrimination, so they might obtain justice and
reparations through judicial institutions. There are also the UN Minimum Standard Rules for the
Administration of Juvenile Justice (the Beijing Rules), which state the need for free legal aid for
children before the law.42 Likewise, the UN Declaration on the Rights of Disabled Persons demands
quality legal aid for people with disabilities.43

In Indonesia, a number of legal instruments regulate the right to legal aid. The Constitution of 1945
contains the principles of a rule of law state, as well as fulfilment of justice and human rights—
intimately tied to the right of all citizens to legal aid.44 Law No. 39/1999 on Human Rights states that
“every person has the right to recognition by, guarantees of, protection of and fair treatment by a just
law, and every person is entitled to equal rights before the law.”45 Section Four of the Law on Human
Rights guarantees every person’s right to justice. Article 18(4) of that law guarantees the rights of

National StrategY ON access to justice 37

every person to legal aid from the moment they are put under investigation until the moment of a
court verdict.

3.2.1 Legal Aid for the Poor and Marginalised in

Indonesia: Several Challenges
Both the Constitution and Law No. 39/1999 state that the protection, advancement and enforcement
of human rights are the responsibility of the Government.46 Unfortunately, neither sufficient political
will nor concrete government policies have ever promoted or fulfilled the community’s right to legal
aid, especially on the part of the poor. This is evidenced in three important respects:

First, there is no specific law for the regulation of legal aid. Opening the Legal Aid Summit Assembly
of April 2006, the President did not even mention any Government plan to introduce a legal aid law.
He only gave his support for the legal aid Foundation to submit a draft legal aid law to the Parliament
and Government.

The legislative provision on legal aid is contained in Article 22 of Law No. 18/2003 on Advocates.
However, this law alone is not sufficient, nor does it reflect the conception of legal aid as a human
right. Rather, the law views legal aid as something akin to lawyers’ “charity” or “pity,” rather than a
State responsibility. Rules, regulations, and procedures for legal aid provision should be contained
in a dedicated Government regulation, but to date no such regulation exists. This is despite the fact
that the Constitution clearly states that the protection, advancement, enforcement, and fulfilment of
human rights are the responsibility of the State, and particularly the Government (Article 28I(4)).

While the 2005-2009 National Medium-Term Development Plan deals with a reform agenda for the
legal system and legal politics, the plan does not make specific mention of an agenda to promote or
fulfil the rights of poor people to legal aid.

Second, law enforcement officers apply the law inconsistently. There are many examples of such
inconsistencies, some involving pro bono litigation. The public generally remains unaware of its
right to free services. Many law enforcement officers – including police officers, public prosecutors,
judges, and staff of correctional facilities – fail to provide information to suspects or defendants
about their rights to legal aid. In corrections institutions, such rights are often ignored. This not only
reveals a lack of integrity amongst law enforcement officers, but also a lack of sensitivity towards
the poor.

Third, at the level of legal culture, the Government has not provided adequate education to
develop people’s capacity for critical engagement with the law. It seems there has been no strong
political will in Government to support legal aid for the poor and marginalised. This is the main
obstacle to improving legal aid in Indonesia. In this context, the education programmes currently
in operation need to be restructured and optimised. These programmes, which are implemented by
the Government and law enforcement institutions, include the Family Legal Awareness Programme
and legal education for the community. Efforts to revise the concepts, methods, and mechanisms
of the education programme have been carried out under the 2000-2004 National Medium-Term
Development Plan. For example, the term “legal informing” has been changed to “legal awareness,”
which places more emphasis on dialogue. Both the substance of the law and the depth of its reach
require improvement.

38 National StrategY ON access to justice

There are many other obstacles to the implementation and development of legal aid in Indonesia.
Some of these are described below:

a. Lack of Information Pertaining to Legal Aid

Legal aid is one component of the larger human rights movement. As this is a community
movement, adequate information must be provided at a grassroots level. Legal aid can only be
effective in reaching its target – the poor and marginalised – if it is organised according to the
following information: (i) the number of poor people seeking justice; (ii) the amount of money
allotted for pro bono legal aid as compared to the actual amount that is accessed by people
seeking justice; (iii) the number of legal aid providers who genuinely provide pro bono legal aid;
and (iv) the number of lawyers providing pro bono legal aid in justice institutions.

The Government, through the Department of Law and Human Rights, has an obligation to
provide a database containing this information. The Department has already implemented an
administrative system for justice institutions. This system can be adopted and applied to legal
aid as well. Of course, in order to achieve this aim, the Department needs to cooperate with other
justice institutions such as the Supreme Court, the Attorney General’s Office, the National Police
and lawyers’ organisations.

The Supreme Court recently issued Chief Justice Decree No. 144/KMA/SK/VIII/2007 on
Court Information Transparency. A broad public education campaign is necessary to inform
those seeking justice about this decree. Further, in 2004, the Director General of General and
Administrative/Military Courts issued a manual entitled Legal Aid for the Poor: How and Where
You Can Obtain Legal Aid Funding.

Unfortunately, this manual did not give detailed answers to the most common questions. For
example: Who should be contacted to obtain information on legal aid? What is the average amount
of money provided by the District Court and State Administrative Court to lawyers who provide
pro bono legal aid? How much of the national budget is allocated to legal aid institutions? What
is the average amount of money allocated for cases involving poor people? How many lawyers
and legal aid institutions make use of legal aid funds from the Supreme Court?

National StrategY ON access to justice 39

 Table 3
COMPARATIVE CIVIL LEGAL SERVICES INVESTMENTS
[Nations ranked by relative share of GNP invested in publicly-funded civil legal services—
lowest to highest]

NATION Total Govt Investment Govt Per Govt Civil Total U.S Civil
(or political In Civil Legal Capita Civil Legal Services Legal Services
subdivision of Services (in U.S. Legal Services Investment Per Investment If U.S.
nation, e.g., Dollars) Investment (in $10,000 of GNP Invested As Much
province, state) [In U.S. includes U.S. Dollars) (in U.S Dollars) Of Its GNP As
Federal, State, local This Nation Does
govts, & IOLTA in Civil Legal
expenditures] Services
UNITED
$600 million
STATES (FY $2.25 $0.70 $0.6 Billion
[pop=270 million]
1998)
GERMANY $390 million
$4.86 $1.90 $1.6 Billion
(1996) [pop=80million]
$270 million [pop=59
FRANCE (1994) $4.50 $1.90 $1.6 Billion
million]
AUSTRALIA [Each State has its
(FY 1998-99) own programme]
-New South $31 Million [pop=6
$5.12 $2.75 $2.3 Billion
Wales million]
[Each Province
CANADA (FY
has its own
1998-99)
programme]
$52 Million [pop=7.3
-Quebec $7.07 $3.50 $3.0 Billion
million]
$82 Million
-Ontario $7.06 $3.60 $3.0 Billion
[pop=11.5million]
-British $32 Million [pop=4
$7.80 $4.00 $3.34 Billion
Columbia million]

NETHERLANDS $150 Million

$9.70 $4.20 $3.5 Billion
(1998) [pop=15.5million]

NEW ZEALAND $27 Million [pop=3.8

$7.10 $5.10 $4.25 Billion
(FY 1998-1999) million]
$2 Billion
ENGLAND $39.00 Gross=$17.00 $14.2 Billion
$1.35 Billion [pop=53
(1999) $26.00 Net = $12.00 $10.1 Billion
million]
Source: http://www.equaljusticelibrary.org.cnchost.com/

On 30 April 2008, Law No. 14/2008 on Public Information Transparency (KIP) was enacted. Its
explicit objective is to promote the right of citizens to information regarding the plans, programmes,
and processes behind the development of public policy, as well as the reasons for public policy
decisions (Article 3A).

40 National StrategY ON access to justice

b. Conditions for building community trust
At least six conditions allow Western judicial systems to obtain the trust of their citizens: (i)
professionalism of law enforcement officers; (ii) integrated information systems easily accessed
by the community; (iii) transparency of law enforcement institutions; (iv) law enforcement
officers who exercise their authority and serve the community responsibly; (v) perception of law
enforcement as a respectable profession; and (vi) job security and professional incentives for law
enforcement officers.

These conditions have not yet been established in Indonesia. Law enforcement officers often act
as tools for the protection of powerful interests. In this context, it is extremely difficult for legal
aid to assist the poor and marginalised in obtaining justice from the formal justice system.

The degree to which the community trusts in the legal system and in law enforcement officers
is closely related to the practice and implementation of legal aid in Indonesia. In reality, poor
and marginalised community groups avoid and are afraid to use legal mechanisms, especially to
fight for justice through the court system; those who choose this path often become victims of a
“judicial mafia”—a network of legal professionals each demanding his or her own fee for “expert
help.”

c. Nonresponsiveness of government politics

Nonresponsiveness has been a problem in the governance of many developing countries. These
governments rarely respond to public criticism or complaints regarding unfair or arbitrary laws.
They do not act to repair the problems and renew the community’s trust in the justice system
and its institutions. There is some evidence to suggest that the Indonesian Government has
supported the realisation of economic, social, and cultural rights, all of which can help build
the community’s social capital. However, the Government must improve its facilitation of and
funding for measures that improve and broaden access to justice for the community.

In Indonesia, there is no specific budget to assist non-governmental organisations and lawyers

associations to provide legal aid. By comparison, in 2004-2005 the South African Government
allocated USD 71,446,868 in legal aid funding for community legal aid providers. This total
increased in the next fiscal year to USD 73,790,087, and again in 2006-2007 to USD 77,734,666
(IDR 723,709,740,460). Meanwhile, the Indonesian national budget only allocates funds to file,
investigate, prosecute, and sentence people, without providing funds for advocacy organisations.
How can this be reconciled with the rhetoric of legal supremacy and a fair justice system in
Indonesia? A further problem is the lack of clarity about whether the funds that are allocated for
improving services and legal aid actually translate into a benefit for the poor.

Table 4
Allocation of Legal Aid Funds in Various Countries
No Country Year Amount
1. England 2004 – 2005 2 million GBP
1997 – 1998 1.5 million GBP
2. South Africa 2006 – 2007 USD 77,735 million
2005 – 2006 USD 73,791 million
2004 – 2005 USD 71,447 million
Source: quoted from various sources

National StrategY ON access to justice 41

 The Parliament and the President must seriously consider how to uphold the rights of poor people
to justice. This includes preparation of an appropriate legal framework, proper infrastructure and
procedures, as well as adequate budget allocations for organisations providing pro bono legal
aid. Allocation of funds for legal aid, particularly for the poor, can also be inserted into a law on
legal aid.

At a minimum, a law on legal aid must include the following provisions: (i) the principle that
legal aid is a human right; (ii) the obligation of the State to uphold the right to legal aid; (iii)
eligibility to receive legal aid; (iv) regulation of and support for legal aid organisations; (v)
mechanisms and procedures for legal aid; and (vi) complaints and reporting mechanisms.

d. The political will of decision-makers

The principles of the rule of law and respect for the rights of all people are not without challenges
in Western countries. However, these principles are upheld through systematic and serious efforts
of leaders, including philosophers and academics, many of whom work tirelessly to protect the
right to legal aid.

Legal reform programmes and reform of law enforcement institutions costs millions of U.S.
dollars. Examples include reform of the public prosecutors, the Supreme Court, the police force,
case management, training, and so on. However, without a strong will and determination from
the leader of each respective institution, these kinds of programmes will not have much impact
on the ability of the community to access justice or appropriate legal aid. Without the will of
political leaders, the right simply cannot be realised. One example is the failure to enact a legal
aid law that supports the poor and marginalised.

e. The failure of legal reform

Many initiatives have been tried, but legal reform is still struggling, and problems are persistent.
Why has Indonesian legal reform been so unsatisfactory? In part because Indonesia lacks a
public figure brave enough to struggle for reforms. It is therefore important to find leaders in
the courts, public prosecutors’ offices, among lawyers, the police, and in the community at large
so that these leaders can serve as role models. Increasing the trust of the poor in the law and the
judicial system is highly dependent upon whether or not they are legally empowered to achieve
just outcomes. Of course, to achieve this, a strong, brave, and committed leader is needed; in
other words, a leader who sides with the poor.

3.2.2 Legal Aid and Access to Justice

A. Normative and Institutional Frameworks
Several essential tools, both normative and institutional, are necessary to support the development
of legal aid in Indonesia. What follows is a list of several of the tools still lacking in the Indonesian
context.

(a) Absence of a Legal Aid Law guaranteeing the right of every person to legal aid
The Legal Aid Leaders Assembly in Jakarta and public forums held in five provinces48
reveal a number of problems regarding access to justice for the poor, including: (1) the high
cost of cases and the long period of time required to complete a case; (2) judges’ lack of
specialist skills, knowledge, gender, and regional perspectives; (3) decisions that are not

42 National StrategY ON access to justice

 based on substantive truth, grounded in the community’s desire for justice; (4) shortage of
lawyers providing free legal aid; (5) single judge in criminal conduct cases for the poor;
(6) delay in the execution of cases to address claims by the poor and by victims of human
rights violation—one land dispute case involving the Kajang customary community of South
Sulawesi against PT London Sumatera has been running for 26 years and is still not resolved;
(7) the standard of justice services, including access to information; and (8) the need to
guarantee the physical and psychological security of victims, witnesses, and complainants..

The above problems could be minimised if legal representation were available to all. If
lawyers are involved from the beginning of a case, they can make sure the legal process is
conducted in a fair and impartial manner and is geared towards fulfilling the right of every
person to access justice. Article 28D(1) of the Constitution recognises, guarantees, protects,
and requires laws that are just, and equality before those laws. On this basis, it is the right of
every person, including the poor, to obtain legal aid when engaging with judicial processes.
Unfortunately, Article 28D(1) of the Constitution has yet to find clearer expression in the
form of a legal aid law. In Australia, the Legal Aid Law regulates the four main components
of the legal aid system: Legal Aid Commissions; Community Legal Centres; the Aboriginal
Community Legal Service and pro bono legal aid provided by private lawyers. The legal
aid law in Indonesia will have a similar goal, which is to provide community assistance in
handling legal matters, especially for the poor.

If the Indonesian Constitution is amended for a fifth time, it should include an explicit
guarantee of legal aid as a constitutional right. The right can then be detailed in laws and
regulations ensuring its fulfilment and providing appropriate remedies.

(b) Implementation of the law is obstructed by regulations and divergences in legal

practice
Law No. 18/2003 on Advocates, enacted 5 April 2003, defines legal aid as “a legal service
provided by lawyers free of charge to a client incapable of paying” (Article 1(9)). This law
only regulates lawyers and lawyers’ organisations. According to laws in South Africa and
Australia, on the other hand, legal services are not only provided by lawyers’ organisations,
but also by legal aid organisations, similar to the Indonesian Legal Aid Foundation and legal
aid institutions all over Indonesia, including those at universities. Of course, the majority of
lawyers still give the bulk of their attention to paying clients and not to the poor.

For those seeking justice, the access to legal aid provided by Indonesian law and regulation
remains very limited. What regulations do exist only address the rights of defendants to free
legal aid in the case of criminal suits, or to legal aid at a reduced fee in the case of civil suits.

In criminal cases, according to Article 56(1) of the Criminal Code, court-appointed state
lawyers are provided only to defendants facing the death penalty or imprisonment for a period
of 15 years or more. For the economically indigent, court-appointed lawyers are provided in
the cases of those facing more than five years’ imprisonment. In practice, however, even this
limited regulation is often ignored, especially when the cases take place in isolated courts, far
from public attention.

In civil cases, Article 887 of the Civil Code states that the poor should be able to lodge suits at
a reduced rate or free of charge, yet the number of cases for which the court has approved free
lodgement can be counted on one hand. One reported success involves a Sambas refugee who

National StrategY ON access to justice 43

 had been taken as a client of the Surabaya Legal Aid Institute; in his case the District Court
of Surabaya permitted the case’s filing free of charge. It is important to note that this facility
only applies to the initial lodging of cases, not to the costs of carrying out proceedings.

In short, the Law on Legal Aid is needed to regulate free legal service providers and to
ensure the right of every citizen to legal services. Presidential Regulation No. 105/2007 on
the Details of the Central Government’s 2008 Budget states that funding for legal services
and aid was IDR 1.1 billion. Legal aid funding should be regulated by a law on legal aid, and
this law should ensure that funding is used as effectively as possible to benefit members of
the public seeking justice, particularly those who are poor.

(c) Transparency and accountability of government and law enforcement officials

As noted above, the Government has in fact allocated funds for the provision of legal aid,
but neither government nor law enforcement officials have taken responsibility for managing
these funds.

There is also a lack of accountability in fulfilling two basic principles of justice, namely those
of speed and affordability. The lack of transparency and accountability in the management
of legal aid funding puts those seeking justice at a great disadvantage. Transparency and
accountability are essential elements in building community trust in the legal system. The
public should receive the benefits of well managed legal services and of legal aid funding
guaranteed through laws and regulations. Nonetheless, many will not be able to pay expensive
case fees. It is therefore extremely important that they can find assistance in paying such fees.
Unfortunately, it is entirely up to court officials to decide whether or not fees will be waived,
and reasons are not always provided when applications are denied.

A lack of transparency in the use of case fees has also damaged the image of judicial
institutions. For decades, the party that brought an action to court and won its case would
not retrieve its case fee deposit. The State Auditor requested an audit of these funds, but the
request was refused by the Supreme Court on grounds that case fees do not constitute a part
of the state budget. It is very important that the Supreme Court provide a simple mechanism
for parties to retrieve their case fee deposits; this is particularly crucial, as those who lose
their deposits are quite often poor.

There is no clear record to date on what share of State budgets and local budgets, including
grants from donor institutions, are actually allocated to aid and legal advocacy for the poor.
If this simple accounting issue remains unaddressed, legal and judicial reform is unlikely to
have any significant impact on the lives of poor people seeking justice.

Up until now, the State has only funded law enforcement activities: police operations to
capture and detain suspects, public prosecutors’ charging and prosecution of suspects, and
courts’ examination of witnesses and reaching of verdicts. The State has not designated any
fund from the national budget to support the operations of legal aid organisations providing
formal or informal services to the poor.

Still, improvements have occurred at the local level. Jakarta’s government, for example, has
begun allocating funds to assist legal aid institutions, and from these funds has helped build
offices for the Indonesian Legal Aid Foundation. It has also supported an aid programme
operated by the Jakarta Legal Aid Institute. Similar steps have been taken by the regional

44 National StrategY ON access to justice

 government of Musi Banyu Asin District in South Sumatra, and the regional government of
Sleman in Yogyakarta. This kind of initiative needs to be adopted by all local governments,
as well as by the central government.

(d) Lack of resources for the provision of free legal aid: legal aid institutions and
lawyers’ organisations

Legal Professionals
The difficulties poor people face in finding legal representation stem in the large part from a
shortage of lawyers. In 2005, the Central Bureau of Statistics estimated the number of poor in
Indonesia to have reached 62 million, or 28.44% of a total population of 218 million people.
Meanwhile, according to Supreme Court data, only 14,000 lawyers are currently enrolled
in professional organisations. Estimates predict that the total number of practising lawyers
does not exceed 20,000, and of those, perhaps only 200 provide legal aid. These numbers,
however, are only estimates, as no precise research has yet been carried out.

Data from 14 legal aid offices show that public advocates would have to provide free legal
services on an average of 2-5 cases per day to satisfy demand, and would have to handle more
than 3 cases as their own. From the 1990s to 2007, the Jakarta Legal Aid Institute received
between 1,000-5,000 cases per year. From 2000 to 2005, no fewer than 96,681 justice seekers
received help from the Jakarta office. More recently, in 2006, the Institute received 1,123
cases and helped no fewer than 10,015 people.

The limited number of lawyers providing free legal aid has had the effect of limiting the legal
system’s capacity to deal effectively with civil and criminal cases involving poor people. In
the future, these individuals’ cases should be given priority by legal aid institutions.

Paralegals
Empowering community legal aid providers, including paralegals and student legal aid
volunteers, is another way the State can help to provide legal services. Paralegals play a very
important role in broadening community access to legal services and aid, and paralegals are
likely to advance community movements struggling to protect human rights. Currently, there
are many obstacles preventing paralegals from carrying out their responsibilities. One major
obstacle is that police often refuse to allow paralegals to accompany victims or suspects
during questioning.

Another problem is that the police, public prosecutors, and lawyers often demand that legal
aid providers obtain licenses before they can handle cases. Many in need of legal assistance
and representation therefore cannot be accommodated due to lack of human resources. Poor
people often go to legal aid institutions after they are denied representation by a private
lawyer, or sometimes even after being recommended to do so by the police. However, due to
a limited number of lawyers, the Legal Aid Foundation is often unable to provide service. In
such circumstances, a working paralegal system would be very helpful.

The Indonesian paralegal profession can develop once the Government acknowledges the
movement and offers its support. Development of the paralegal profession, however, must
conform to certain standards and procedures. Without support, evaluation, and supervision,
paralegals can also become part of what is wrong with the legal system—for example,

National StrategY ON access to justice 45

 becoming part of a new community elite, or taking on a role in the “judicial mafia,” acting as
a middle man or broker who collects fees to handle cases.

(e) Informal dispute resolution processes have not been used effectively
Informal resolution is currently drawing favour as a form of dispute resolution, generally
taken up in civil matters. With concerted effort, informal dispute resolution can be used to
help those seeking justice, particularly in the resolution of land disputes and other conflicts
relating to natural resources. In this context, existing laws and regulations – such as Law No.
30/1999 on Arbitration – must be made more effective.

In practice, informal dispute resolution proves effective when the parties involved have
relatively equal access to legal resources. If a grave difference exists in the parties’ resources,
then the poor tend to find themselves criminalised. In labour disputes, for example, a business
owner will most often choose a dispute resolution court over direct dialogue with workers.

Though still limited in number, informal dispute resolution mechanisms clearly reduce the
dependency of a community on lawyers. (Poor people involved in criminal cases, of course,
still require professional legal representation.)

Alternative dispute resolution processes have long been part of daily life in many communities,
in the form of customary or community justice. However, the capacity of customary or
community justice to resolve legal disputes has not yet been sufficiently recognised or
explored.

In using processes of customary law, parties to a case must be informed that not all customary
rules are in line with recognised norms and standards of human rights. It must also be
recognised that, in reality, processes of customary law often fail to achieve strong results,
and unsatisfied parties often go on to resolve cases via formal legal mechanisms.

B. Legal Awareness
(a) Government and legal institutions lack responsiveness
The Government has an important role in protecting human rights, especially in promoting,
protecting, and fulfilling the right to legal aid. While the Government allocated IDR 1.1
trillion to improve legal services and aid in 2008, there has not yet been any effort to ensure
these funds are spent for the benefit of the poor.

Access to justice can be promoted by four public institutions in addition to the Government:
the Indonesian National Police, the Attorney General’s Office, the Supreme Court, and the
lawyers’ organisation Peradi. None of these institutions have developed specific policies to
broaden community access to justice in the form of legal aid.

Although recommendations have been made to law enforcement institutions to improve

people’s access to legal aid, none have yet been seriously considered. The following policies
would greatly assist the poor in their interactions with law enforcement: (1) Supreme Court:
The Chief Justice of the Supreme Court should issue a policy, in the form of a Supreme Court
regulation or memo, allowing legal aid providers with certain qualifications to assist the
poor in legal processes. This initiative has been promoted by the YLBHI and LBH Jakarta
through discussions with the Chief Justice; (2) Indonesian National Police: The head of the
Indonesian National Police should produce a policy in the form of a memo allowing legal

46 National StrategY ON access to justice

 aid providers and paralegals to accompany disadvantaged clients and victims during police
interrogations; and (3) the Lawyers’ Organisation: The lawyers’ organisation should make
the provision of free legal aid mandatory for all members, and it should enforce sanctions
against lawyers who do not comply. Government Regulation No. 83/2008 on Conditions and
Methods of Providing Free Legal Aid to the Poor should be enforced consistently.

To date, none of these policies have been implemented, although all of them would help bring
attention to the issue and serve as useful stepping stones on the way to enactment of a law
on legal aid.

(b) Access to appropriate forums

When a poor person wishes to defend her rights or obtain justice, she can decide to pursue
formal legal processes, or she may pursue informal channels such as mediation, arbitration
and/ or community justice. All such alternatives should be supported by legal service
providers.

A variety of legal aid providers have been identified, including: (i) government legal aid:
this service should not be for government officials suspected of or charged with corruption;
rather, it should be used to broaden community access to justice, especially for the poor
and disadvantaged; (ii) legal aid institutes; (iii) legal aid services provided by lawyers’
organisations; (iv) academics; (v) political parties and their related organisations; (vi)
community organisations; (vii) student organisations; and (viii) ommunity Legal Centres
(CLCs).

Legal aid should be as accessible as possible for marginalised communities. One way access
can be improved is through the development of community-based legal aid posts. These posts
could be developed on a sectoral basis (for example, posts specialising in farm issues, or on
the concerns of poor urban dwellers) and/ or on a geographic basis to provide legal aid for
poor communities in remote areas. A mobile legal aid programme is also necessary to provide
access to particularly difficult to reach communities.

Legal information and publications should be distributed using existing social infrastructures
to achieve the broadest possible involvement of the community. This way, legal aid can be
developed in line with the people’s actual interests.

(c) Effective grievance handling

Legal aid should enable the poor and marginalised to bring their complaints to appropriate
institutions and agencies. This includes complaints about public servants in central and local
governments and in judicial institutions. Crucially, the poor and marginalised must feel able
to register complaints against legal aid providers themselves.

The following is a list of measures designed to facilitate effective handling of complaints:

(i) maintain minimum service standards for all legal aid providers; (ii) develop a map of
areas in need of legal aid; (iii) eliminate gaps between existing laws and regulations on the
one hand and the experience of ordinary people on the other—particularly with regard to
customary dispute resolution processes; (iv) provide access to information. Although some
funding for pro bono cases is available, this money is usually provided to favourite lawyers
of the police and courts. In reality, it is very difficult to access information about legal aid
funding, including court budgets for pro bono lawyers; (v) the central government should

National StrategY ON access to justice 47

 provide technical assistance to the regions while adopting best practices developed by local
governments.

The Law on Legal Aid should provide for effective handling of complaints. The draft law on
legal aid contains procedures and mechanisms by which people can lodge complaints about
legal services and legal aid providers and institutions.

Existing institutions, including the Prosecutorial Commission, the Police Commission, the
Judicial Commission, lawyers’ organisations and the Ombudsman, must be made more
effective in carrying out their functions and roles. Law No. 37/2008 on the Ombudsman of
the Republic of Indonesia grants authority to the Ombudsman to supervise the provision of
public services by government and public authorities. For instance, the poor and marginalised
can report incidents of maladministration to the Ombudsman.

(d) Appropriate forms of legal aid

Legal aid must be implemented in accordance with human rights standards, and it should
incorporate the following principles: (i) availability: of legal aid services, materials, facilities,
and infrastructure to the poor and marginalised; (ii) affordability; (iii) accessibility: including
access to legal services and legal aid through legal aid organisations, legal aid posts, and/or
emergency legal aid (P3K Hukum); (iv) location: Legal aid should be available not only at
the provincial level, but also at a community level. In Australia, for example, Community
Legal Centres (CLCs) have been developed to bring institutions closer to the people; and
(v) cultural sensitivity: the form in which legal aid is delivered must take account of cultural
identity.

3.2.3 National Strategy on Access to Justice for

Legal Aid
A. Policy Direction
The policy direction of the future must be pro-poor and prioritise the protection of human rights.
The priority should be to broaden access to justice for the poor and marginalised by forming and
applying non-discriminatory policies, and by implementing affirmative action policies for poor and
marginalised people seeking justice.

At the moment, the poor and marginalised do not receive full access to the justice system. In practice,
the most significant obstacle to broadening the access of poor and marginalised people to justice
is not capacity, but rather the unwillingness of the State and its officials to truly and consistently
promote the rights of the poor and marginalised.

The meaning of the word “access” contains a “right to obtain, use, and receive the benefit of.” The
access of poor and marginalised people to justice can be obtained through the court, as well as
through informal mechanisms. Such access should enable the poor to obtain legal guarantees and
recognition through legal processes and facilities, and ultimately to obtain material justice and truth.

The word “access” also means “availability.” In the judicial context, “access” refers to an availability
of facilities to fulfil the right of the poor to obtain justice. Therefore, in human rights law, the State is

48 National StrategY ON access to justice

obliged to provide a lawyer, an interpreter, exemption from case fees, etc., when these are necessary.
The availability or unavailability of these conditions determines the effectiveness of judicial
processes. The lack of legal assistance for the poor can lead to various types of rights violation. For
example, in many criminal cases, poor parties are interrogated without any legal assistance, or they
are put on trial before a single judge.

Finally, the word “access” refers to methods and procedure. Any discussion of poor peoples’ access
to justice that fails to take practical methods and procedures into account will fail to achieve genuine
results.

To broaden the poor’s access to justice, the State and its leaders must demonstrate political will, and
the community must exert pressure. The basic pre-conditions for the provision of legal aid are:

First, establish a principle that providing access to justice is a State obligation; legal aid should be
free or at least affordable (Fajar Newspaper, 2006).

Second, ensure that the poor can defend and fight for their constitutional and legal rights, without
discrimination on the basis of poverty (Radar Bali, 2007). In human rights discourse, this is often
referred to as the right to legal recognition.

Third, ensure that the disadvantaged are assisted rather than obstructed in obtaining legal resources
equal to those available to the wealthy and powerful. For example, the Law on Lawyers makes it
compulsory for all lawyers to provide legal services to the disadvantaged, thus guaranteeing legal
services to all people. In reality, lawyers are generally unwilling to take clients who are unable to pay
fees. The support of all stakeholders is critical to the provision of free legal aid.

B. Strategy
(a) Fulfilling the Right to Legal Aid
1. Fulfilling the right to legal aid
Legal aid has two main functions: (1) to provide legal protection and equality to all in the
eyes of the law, including the right to a fair trial; and (2) to contribute to and enhance the
Government’s social justice agenda and development programme, including programmes for
the improvement of workers’ welfare, entrepreneurship, and ownership.

Provision of legal aid to the poor and marginalised should ideally support the social welfare
and justice efforts of the State and Government. A fair and effective system of legal aid
will provide access to justice and legal empowerment for the community. State tax revenues
should be used for the legal aid programme for the poor and marginalised.

Over the next five years, the objective of legal aid policy should be to ensure that every poor
and marginalised person is able to access legal aid when faced with legal action, and is able
to obtain legal representation when fighting for his rights, whether by formal or informal
processes.

2. Ensuring equality before the law

Because of Indonesia’s pervasive poverty, the national and local budgets for aid programmes
should prioritise legal aid funding as follows: (i) ensure that every poor person is assisted by
a lawyer to obtain a fair trial; (ii) fund socially excluded groups—those who would not be

National StrategY ON access to justice 49

 able to obtain a fair trial or protect their basic rights without the benefit of aid; and (iii) assist
the poor in conducting legal proceedings to defend their basic human rights, including the
rights to employment, land, water, health, and education.

3. Establishing a fair and effective judicial system

A legal aid programme will accomplish the following: (i) protect the rights of the poor, who
are often naive, vulnerable, and disadvantaged; (ii) ensure the availability of professional
legal assistance and representation for the poor; (iii) ensure balanced support, including
allocations from the state budget, for judges, police, and public prosecutors; and (iv) balance
allocations from the state budget for the Supreme Court, the Attorney General’s Office, and
the Indonesian National Police, with financial support for legal aid institutions and lawyers’
organisations.

4. Improving the quality of legal services for the poor

A legal aid programme will accomplish the following: (i) promote competitive and active
provision of legal services and support by providing remuneration for public and private legal
practitioners; (ii) ensure that all practitioners who provide legal services for the disadvantaged
receive fair remuneration; and (iii) push for a more responsible legal profession.

5. Accelerating the resolution of legal problems and avoiding social conflict

Effective legal aid will improve the effectiveness of dispute resolution, which directly and
indirectly decreases the impact of social exclusion. Lengthy delay in the resolution of poor
people’s legal problems is in itself an obstacle to the achievement of justice.

The Government can promote effective and immediate dispute resolution through its legal
aid programme, with the objectives of: (I) decreasing the number of legal cases and disputes
directly and immediately for the parties involved; (ii) making services available at an early
stage to prevent problems from developing into more serious and costly disputes; and (iii)
focusing on the most needy sectors of the community, such as labourers, farmers, poor urban
dwellers, adat communities, women, and children.

(b) Planning legislation, policies, and activities connected to legal aid

This strategy requires the preparation of a comprehensive development plan ensuring the
right to legal aid. The strategy must aim to incorporate the interests of all development actors,
based on the fundamental principle of recognising communities as subjects of development
programmes, not merely as objects. In this context, community participation in development
programmes should be as full and meaningful as possible, so that the benefits of programmes
are felt by the marginalised. In other words, development programmes must allow fully for
the participation of the poor and marginalised.

1. Formation of legal apparatus that will guarantee access to legal aid for the poor
Indonesia does not currently have a law on legal aid, although many other developing
countries do; South Africa and the Eastern European countries of Estonia, Hungary, and
Slovenia are examples. Among the rich countries, Australia, Japan, Canada, Sweden, and
England all enjoy legislation for the regulation of legal aid.

50 National StrategY ON access to justice

 Table 5
Legal Aid Laws in Several Countries
Country Legal Basis Definition Receiver Registration
Netherlands Legal Aid Act Distinction Legal Legal Aid, Advice
1994 between legal practitioners or and Assistance
Reform in 2004 representation institutions Center
and legal advice
South Africa The Constitution State-funded - Criminal - Legal aid
of South Africa: provision of legal cases: those organisations
Act 108 of 199; services threatened - Court legal aid
Bill of Rights; with more than officers
Public Finance three months
Management imprisonment;
Act; Restitution - Civil cases:
of Land Rights; poor people,
Security of and those
Tenure; Criminal fulfilling set
Procedure Act criteria
Source: adopted from Nenad Bago, “Access to Justice”, presentation in
the Legal Aid Summit Assembly, 2006.

Table 6
Comparison of Legal Aid Mechanism and Procedure

Relevance to
Country Legal Case Lawyer Choice Funding
Indonesia
Netherlands All case Free choice of Legal aid covers Should include
lawyer only lawyer’s fees the case fee
South Africa - penal Lawyer - All fees are Should include
- civil individually or funded by the domestic
- family appointed by the State through the violence and
- labour Legal Aid Board Legal Aid Board environmental
- administration cases
of justice
- environmental
conservation
Source: adopted from Nenad Bago, “Access to Justice”, presentation in
the Legal Aid Summit Assembly, 2006.

National StrategY ON access to justice 51

 The need for a law on legal aid was first recognised in the 1980s, but it has never been given
priority in the National Legislative Programme.

The Law on Legal Aid will guarantee the right of the poor to obtain legal services and support.
It will embody the Government’s obligation to promote, protect, and provide funding for
legal aid for the poor, including the allocation of funds for legal proceedings.

2. Building the capacity of legal institutions and resources

Not all legal aid institutions enjoy the same standards of service or recruitment. It is important
to monitor the capacity and performance of legal aid institutions, because this will affect the
quality of services received by poor people seeking justice.

The quality and resources of legal aid institutions will determine the effectiveness of legal
aid services in helping the poor and marginalised to access justice. Building the quality and
capacity of legal aid institutions, and their resources, occurs through the implementation
of effective management within these organisations. Improving the quality of professional
advocates, paralegals, and legal aid volunteers is a necessary condition for the provision of
legal empowerment.

3. Funding improvements to legal aid access

The programme to fulfil the right to legal aid is supported by all stakeholders, and should
become State policy. One way in which access to legal aid can be assured is through an
allocation in the national and local budgets. In the context of local budgets, Minister of
Internal Affairs Regulation No. 13/2006 on Standards for the Management of the Regional
Budgets needs to be revised so that it states explicitly that local budgets must contain an
allocation for legal aid. The budget allocation must also provide for the exemption of poor
justice-seekers from the payment of case fees and other fees related to the judicial process,
including the court’s verdict execution fee.

Besides that, community ideas from the field supported by the Government and the
international community (bilateral cooperation through grants) must be explored so as to
develop endowment funds, as are available in the conservation field for the preservation
of biodiversity in the Biodiversity Foundation. Donated funds (in the form of small and
medium-scale contributions) are necessary to support the activities of paralegals in remote
areas; and local governments are not yet ready to do this.

4. Paralegal development
Given the limited geographical access, knowledge, and legal skills of the public, paralegals
play a very important role, including: (i) conducting legal education in the community; (ii)
assisting with the handling of cases, whether through formal or informal mechanisms; (iii)
facilitating access to legal representation; (iv) acting as mediators and bridging the gap
between the poor and marginalised and the legal aid and advocacy networks at the local and
national levels. The position of the paralegal is very important in maintaining improvements
in the legal knowledge and empowerment of the community by treating the community as the
subject of legal reform, rather than a mere object. Therefore, we must strengthen the position
of paralegals in the legal aid “map” in Indonesia, acknowledging the importance of their role
and function in upholding the law and regulations, improving the quality of their training and
service, and strengthening the network of paralegals. The latter has already been initiated by

52 National StrategY ON access to justice

 community organisations in various sectors, such as women’s NGOs, legal aid, advocacy,
land, labour, and customary communities.

5. Development of legal education that supports the implementation of legal aid

It is extremely important that the legal education programme provides law graduates with a
human rights perspective, and encourages their participation in the legal aid movement. A
legal aid programme should therefore be incorporated into all tertiary law degrees throughout
Indonesia.

Keeping in mind the enormity of Indonesia’s poor populations, the legal curriculum must
begin to include units on “law and poverty,” so that legal faculties too can contribute to the
eradication of suffering.

Classes on legal aid and “law and poverty” should also be included in the training curriculum
for police, public prosecutors, judges, lawyers, and officers of corrections institutions.

6. Recognition of legal aid providers

The Government needs to develop a programme demonstrating the community’s appreciation
for legal aid providers, including lawyers, paralegals, community leaders, academics, and
other professionals who have consistently pushed for the fulfilment of the rights of the poor
and marginalised to access legal aid. This programme could be modelled upon the kalpataru
government award given to environmental heroes. Ideally such a programme could provide
motivation to others to support the work of legal aid providers and paralegals.

National StrategY ON access to justice 53

 3.2.4 ACTION PLAN ON ACCESS TO JUSTICE IN THE LEGAL AID SECTOR

54
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
The right to legal aid Guarantee the right to 1. Identify the scope Creation of a database Planning and National Development
remains unfulfilled legal aid of need for legal on the need for legal aid, implementation of high- Planning Agency
aid in Indonesia accounting for the annual quality, effective legal Department of Law and
number of poor seeking aid to the poor Human Rights, Supreme
justice; the total budgets Court
necessary; the number of
institutions offering free
legal aid; and the number
of advocates providing
truly free legal aid
2. Evaluate legal Recommendations for Increase in the National Development
aid programmes these programmes and number of poor people Planning Agency
that have been identification of social benefiting from free
administered by groups that have not yet legal aid
government and been reached Department of Law and
law enforcement Human Rights, Supreme
officials to this date Court; Attorney General,
Indonesian National
Police
3. Produce road Creation of a road map The right to legal aid National Development
map: “Legal Aid for fulfilling the right to is systematically and Planning Agency

National StrategY ON access to justice

is a Fundamental legal aid as a fundamental consistently fulfilled
Human Right” human right
Department of Law and
Human Rights; Supreme
Court; Attorney General;
Indonesian National
Police
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
4. Publicise the Poor people participate in Cases brought by poor National Development
right to legal aid and draw greater benefit people and requests for Planning Agency
through public from the provision of legal legal aid are managed
service advertising aid effectively Supreme Court; Attorney
General; Indonesian
National Police; governor;
Mayors; Regents
5. Publicise the Poor people participate in Cases brought by poor National Development
right to legal aid and draw greater benefit people and requests for Planning Agency
through public from the provision of legal legal aid are managed
service advertising aid effectively Supreme Court; Attorney
General; Indonesian
National Police; governor;
Mayors; Regents
6. Facilitate the Legal aid institutions The number of poor National Development
formation and provide service to poor people receiving legal Planning Agency
operation of legal people in 33 provinces aid increases
aid organisations and cities Department of Law
in every area of and Human Rights,
law Supreme Court, regional
governments
7. Support the Create an accessible The number of poor Department of Law and
operation of an online database of all people receiving aid Human Rights

National StrategY ON access to justice

information and legal aid organisations increases and the
administration organisations offering
system for legal such aid are well-
aid coordinated

55
56
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
8. Facilitate the Creation of a minimum Poor people receive Department of Law and
setting of a standard for the provision effective service Human Rights
minimum standard of free legal aid
for free legal aid
Resolve legal conflicts Use websites, Use of alternative People have access to Department of Law and
quickly and prevent brochures and mechanisms for dispute justice and protection Human Rights
social dispute booklets to promote resolution increases through alternative
dispute-resolution dispute-resolution Indonesian National
mechanisms based on practices Police, Attorney General,
regional knowledge Supreme Court, regional
governments
Facilitate the use of Establishment of role 500 cases involving Department of Law and
community-based models and catalogue poor people are Human Rights
procedures and of best practices for resolved each year
mechanisms for alternative through alternative Indonesian National
alternative dispute disputeresolution dispute-resolution Police, Supreme Court,
resolution practices Attorney General, regional
governments
Facilitate the Decisions and The amount of time Department of Law and
honouring of agreements are observed and money dedicated Human Rights,
resolutions and faithfully to dispute resolution
agreements already decreases Indonesian National
entered upon Police, Supreme Court,

National StrategY ON access to justice

Attorney General, regional
governments
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Increase people’s People seeking justice have People’s confidence in Department of Law and
consciousness of access to information and alternative case-resolution Human Rights
alternative legal choices on how their cases mechanisms increases
mechanisms are resolved
Indonesian National
Police, Attorney General,
Supreme Court, local
Governments
Conduct evaluation and Conduct regular auditing Quarterly observation and Programme achieves National Development
monitoring evaluation its objectives through Planning Agency
accountability and
transparency

Legislation and Establish a legal Legal Aid Bill is entered Legal Aid Bill is entered Legal Aid Bill is written in Department of Law and
policy activity remain apparatus that into the National into the National Legislative accord with basic human Human Rights
inadequate to the guarantees poor Legislative Programme Programme rights principles
realisation of rights to people’s access to legal
legal aid aid
The proposed bill is Bill is discussed in parliament Voices and aspirations of Department of Law and
discussed in parliament and agreed to by both the people are accounted Human Rights
parliament and the president for in the proposed law

Law on Legal Aid is Law on Legal Aid is enacted Creation of a strong legal Cabinet Secretariat
enacted foundation for legal aid

National StrategY ON access to justice

Issue regulations for the Regulations are written in Effective implementation Cabinet Secretariat
implementation of legal accordance with the law of law supported by
aid law regulations for its
enactment (government
and presidential
regulations)

57
58
TIME Responsible Party
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Publicise the law on People understand the Encouragement of Department of Law and
legal aid substance and practical people’s participation in Human Rights
application of the laws on the legal aid system
legal aid

Develop the Facilitate the Composition of a master Development of human National Development
institutional capacities composition of a plan resources in legal aid Planning Agency
and human resources master plan for organisations based
of community legal human resource on a systematic and Department of Law and
services development in legal comprehensive plan Human Rights
aid organisations
Facilitate institutional Legal aid service operates Increase in the number Department of Law and
support for effectively of people receiving Human Rights
organisations quality legal aid
providing free legal aid
Local governments
Facilitate the growth Formation of legal Ignorance of the law Department of Law and
and development aid groups in each of decreases among the Human Rights
of the legal aid Indonesia’s 33 provinces poor
community
Local governments

National StrategY ON access to justice

Facilitate the creation Composition of a plan for Orderly administration Department of Law and
of a plan for legal aid legal aid accreditation and the provision of Human Rights
accreditation minimum legal aid to
the poor

OBSTACLES STRATEGY ACTION PLAN
Develop financing to Plan, allocate, and
improve access to legal monitor financing for
aid legal aid in the national
and local governments;
issue regulations from
the Interior Ministry
regarding the inclusion of
legal aid in local budgets
Facilitate the provision of
legal aid insurance to the
poor and marginalised
Facilitate the drafting of
a report on NGO and
institutional performance
and accountability
Develop the paralegal Facilitate the training of
profession paralegals in rural and
urban areas
National StrategY ON access to justice
59
OUTPUTS
Establishment of a dedicated
legal aid section in the
national and local budgets;
effective and transparent
allocation; accurate budget
targets; effective oversight
and management
Funding systems are
managed for the benefit of
the poor
Legal aid is provided
through transparency and
accountability
1650 paralegals provide
service in 33 provinces
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Poor people’s right to legal National Development
aid is guaranteed Planning Agency
Department of Finance,
Regional governments
Poor people have access National Development
to legal aid and funds for Planning Agency
legal aid
Department of Finance,
Regional governments
Legal aid programmes are National Development
effective and efficient Planning Agency
Department of Finance,
Regional governments
Legal first aid is effective Department of Law and
and the legal aid Human Rights
community is strengthened
60
OBSTACLES STRATEGY ACTION PLAN
Facilitate the formation
and operation of Legal
First Aid Post outside of
national courts
Facilitate forums for
paralegals to meet at
the provincial, local and
national levels
Compose a statement,
signed by law
enforcement officials,
acknowledging and
guaranteeing the
functions and activities of
paralegals
Development of legal Facilitate the creation of
education supporting the a legal aid curriculum and
provision of legal aid ‘law and poverty’ course
of study for universities,
as well as education
and workshops for law
enforcement officials
(police, prosecutors,
judges and advocates)
National StrategY ON access to justice
OUTPUTS
66 Legal First Aid Posts are
created as a pilot project
Experiences and talents are
shared within the free legal
aid community
Paralegals’ functions
in the legal process
are acknowledged and
guaranteed, for example
in consulting with clients in
police custody
Curricula and materials
are developed for teaching
legal aid in universities,
as well as for use in the
training programmes of law
enforcement institutions,
agencies and officials
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Reduction in ignorance of Department of Law and
the law among the poor; Human Rights
legal dispute resolution at
the local level
Increase in the knowledge, Department of Law and
ability and awareness Human Rights
of best practices in the
paralegal community
Ability of paralegals to Supreme Court,
serve their functions free of
procedural hurdles
Attorney General; Indonesian
National Police
Legal aid becomes a National Development
subject taught in the Planning Agency
national curriculum
Department of Law and
Human Rights, Department
of National Education,
Supreme Court, Attorney
General, Indonesian National
Police
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Adopt the subjects 10 universities and training A paradigm change that Universities, education and
of legal aid and ‘law agencies teach the subject of leads to the mainstreaming training agencies
and poverty’ in the legal aid of the right to legal aid
taught curricula of law among the poor Supreme Court, Attorney
enforcement offi cials General, Indonesian National
Police
Develop people’s Create an awards 10 legal aid workers receive Awareness of and respect Department of Law and
appreciation of legal aid programme for legal aid awards each year for the work of legal aid Human Rights
service workers providers increases

Conduct evaluation and Conduct regular audits Programmes receive Programmes reach National Development
monitoring quarterly monitoring and their goals through Planning Agency
evaluation accountability and
transparency

National StrategY ON access to justice

61
3.3 Access to Justice in Local Governance
Regional autonomy has effected a change from centralised to decentralised governance. The shift
in the locus of government from the centre to the regions should be reflected in a change from
central government actors to local community actors as the drivers of development efforts.49 This
paradigmatic change will influence the form of Indonesian nation-building by creating new regional
cultural, social, political, and economic centres.

Decentralised governance was implemented to create an environment in which the Government

could achieve: (1) democratisation; (2) improvement of basic public services; and (3) improvement
in community access to the economy. There are great discrepancies in the extent to which these
goals have been achieved across different regions. In many regions, the democratic principles of
transparency, participation, and accountability are neither present in the development nor in the
implementation phases of public policy (KPPOD, 2004-2005; GDS, 2005). Likewise, while some
regions have included economic empowerment programmes for the poor and marginalised as a focus
of development efforts, most regions have not yet done so. At the same time, however, basic public
services in the education and health sectors have generally improved (World Bank, 2006). These
three goals both directly and indirectly relate to access to justice, namely the degree to which the
community, especially the poor and marginalised, are able to fulfil their rights and obligations.

The implications of local governance for community access to justice – especially in relation to
democratisation – depend upon the degree to which the principles of good governance are implemented.
Of particular importance are the principles of transparency, participation, and accountability, although
the mere implementation of these principles is no guarantee of other good governance principles like
efficiency. Improvements in basic public services have occurred through programmes related to
education, health, and citizenship rights, and through upgrades made to the basic infrastructure and
facilities like roads and clean water. Similarly, improvements in communities’ economic opportunities
have occurred through programmes designed to help people create and obtain jobs.

The main obstacles to improving access to justice in the context of local governance are: (i) the
low quality of public services, especially services related to basic economic, health, and education
rights; (ii) the effect of bureaucratic requirements such as identity cards, certificates of poverty, birth
certificates, and business licenses on basic rights; (iii) the lack of special budgetary allocations for
legal education and community legal aid services; and (iv) the absence of a mechanism to handle
complaints related to public services.

3.3.1 The Normative Framework

Local governance is affected by developments in the normative framework at the national and
regional levels. Several aspects of regulation affect the ability of local governments to provide the
community with access to justice, namely:

Rapid developments in national law: The law on regional governance went through rapid change,
beginning as Law No. 29/1999, becoming Law No. 32/2004, and there is likely to be another
change based upon the 2007 National Legislative Programme. The new law was introduced even
before regulations had been formed to implement the original law. Similarly premature changes
have been made at the national level to Government Regulations (PP), Presidential Regulations

62 National StrategY ON access to justice

(Perpres), and the Ministerial Regulations (Permen) regarding, amongst other things: regional
finance, the organisational structures of local government, and service standards. Examples include
PP No. 38/2007, PP No. 41/2007, and Minister for Domestic Affairs’ Regulation (Permendagri) No.
59/2007. These changes are confusing and absorb much of the local governments’ time and attention.
In many cases this has resulted in frustration and apathy amongst local governments, since new laws
are continually introduced before the old laws have even become operative. For local governments,
this has become a distraction.

The poor quality of local regulations: Poor quality local regulations are the result of local
governments lacking political will and capacity, especially in the Regional People’s Representative
Councils (DPRDs). The majority of local regulations deal with the collection of Regional Income
(PAD), thus affecting economic and business activity. This kind of revenue-raising regulation is
not necessary, because financial shortfalls are funded out of the General Allocation Fund (DAU).
Unnecessary taxes are levied because the system by which central-regional finances are balanced is
widely misunderstood, particularly within the DPRD. These PAD measures increase opportunities
for rent-seeking amongst government officials through their influence on the collection process.50

The low quality of local regulations is also caused by the minimal participation of stakeholders in
the drafting process (KPPOD, 2003). A qualitative assessment in several regions suggests that the
low quality of local regulations is also caused by poor transparency and accountability in the drafting
and implementation processes. Many local regulations contradict national laws and regulations, due
to weaknesses in the central government’s evaluation mechanisms. However, the last two years have
seen some improvement in the quality of supervisory mechanisms in the local regulations drafting
process, with the central government collecting data and conducting studies on local regulations for
the first time. It is yet to be seen whether these changes have a positive impact upon access to justice.

Sub-optimal use of budget resources: Oversized regional government bureaucracy has absorbed
far too great a share of regional budgets, and regional governments are therefore unable to mobilise
funds for education and health programmes. Despite the World Bank (2007) having recognised
a general increase in funding for education and health, the increase could have been far larger if
unnecessary sections of the bureaucracy had been cut. Regional government bureaucracy also
tends to lack sensitivity to community needs; budgetary allocations for the poor and marginalised
have therefore been minimal. Much of the regional budget is not used wisely, even though levels
of poverty remain high, and basic facilities and infrastructure are still lacking (Word Bank, 2007).
DPRDs have had difficulties understanding issues of budgeting, poverty, and local economies; they
tend to pay little attention to the poor and marginalised, as reflected in the minimal budget allocations
these communities receive.

Drafting and implementation of minimum service standards (SPM): Government Regulation No.
65/2005 makes local governments responsible for providing basic services. However, no ministerial
regulations or local regulations have yet been issued in its implementation. Thus it is difficult for
citizens to evaluate the standard of services provided by their local governments.

3.3.2 Legal Awareness

Legal awareness encompasses three primary issues: (1) misuse of authority by the local governments
and DPRDs; (2) infrequency and poor quality of interactions between local governments and the

National StrategY ON access to justice 63

communities they represent in forming policy; and (3) legal violations by members of the community.

Access to justice has suffered several setbacks due to the contravention of laws by local government
officials misusing authority. Regional budgets (APBD), “deconcentration,” and assistance funds
present several opportunities for corruption: collusion between government officials and businesses
(cost inflation, violation of auction mechanisms, double billing, etc.); and political trade-offs between
local governments and DPRDs/political parties, resulting in budget allocations for inappropriate
programmes, unnecessary work travel, violations of zoning laws, and illegal income for local
government officials.

The community enjoys little understanding of the law because local regulations and local government
policies go largely un-disseminated. In many instances, this can lead to violation of laws (particularly
by the poor and marginalised) relating to genetic engineering, use of forest resources, poaching of
protected species, use of “customary land” that has been categorised as “illegal,” etc.51

Community initiatives to improve legal awareness have not been supported by the central government.
For example, a regional regulation on forest use and management practices (established by and in
the interests of the community under the guidance of regional government) was misunderstood by
the central government as an effort to take control of the forest, and therefore annulled. Regional
governments have also had trouble spreading awareness of family law; particularly in the fields of
inheritance, divorce, custody, and domestic violence.

3.3.3 Access to the Appropriate Forum and

Effective Grievance Handling
Communities have extremely limited access to venues that would allow for active involvement in and
monitoring of regional development. Whether or not problems have been identified in the process of
regional development, very few regions conduct regular stakeholder forums.

Meanwhile, although the Ombudsman has no authority to determine the cases he handles, he is
capable of major influence in settling disputes between communities, governments, and justice
institutions. Unfortunately, only a few regions now employ ombudsmen, and efforts to improve
public access to appropriate forums have not yet been approved by Parliament in the draft legislation
on public services.

3.3.4 Satisfactory Remedies

The remedies available in the formal legal system do not satisfy complainants’ desires to see justice
done, and leave many feeling excluded from the justice system. It is widely recognised that misuse of
authority, both by law enforcement officials and local governments, leads to rights violations against
the poor.

64 National StrategY ON access to justice

3.3.5 The Problems of Poverty and Marginalisation
Poverty and marginalisation are structural problems that cannot be solved by ad hoc or “band aid”
charitable approaches. As noted above, several regions have begun to prioritise programmes for
improvements in basic services (health and education) and legal education. Progress, however,
remains limited. Very few regions have implemented comprehensive programmes to reduce poverty
or increase economic opportunities for the poor and marginalised.

3.3.6 National Strategy on Access to Justice for

Local Governance
Strengthening community access to justice in local governance will demand the following strategies:

1. Mapping and improving the quality of policies

Regional autonomy presents opportunities for communities to participate in improving local
policies for their own benefit. They may help to improve the quality of legislative goals, drafting,
and implementation, thus ensuring the quality of laws, particularly in relation to basic rights. The
following considerations should be noted:

First, there must be deeper analysis of the various local regulations related to access to justice,
particularly local regulation on regional budgets, fees, education, and health. Law No. 10/2004
on Formation of Laws and Regulations should be supported by a Presidential Regulation requiring
participatory approaches to the development of public policy. It should also provide for institutional
supervision in implementing the new approach. The central government must provide guidance on
the evaluation of local regulations through a Regulatory Impact Analysis (RIA) process based on
cost-benefit analysis, good governance (transparency, participation, accountability, effectiveness, and
efficiency), legal principles (lex specialis derogat legi generalis, lex superiori derogat legi inferiori
and lex posteriori derogat legi prior), and concern for sociological, philosophical, and human rights
perspectives.

In terms of legitimacy, the central government should be empowered to invalidate local regulations,
and communities should be permitted to apply for judicial review if local regulations are compiled
without academic evidence of RIA implementation. For such a programme to function, the public
must have access to legal knowledge and the ability to think critically about law.

Second, the institutional capacity of the DPRDs must improve. A national law should encourage and
regulate capacity-building in the DPRD. As part of its institutional development, the DPRD requires
expert staff to help it cooperate with local governments in the development of strategic policy.

Third, the quality of the new autonomous regions and inter-regional collaboration must improve.
Building capacity and supporting budgets in the new autonomous regions will require political
will and government assistance. Implementation of Government Regulation No. 129/2000 on
Preconditions and Criteria for the Formation, Abolition and Integration of Regions (revised in
Government Regulation No. 78/2007) must be made operable with realistic action plans.

National StrategY ON access to justice 65

Inter-regional cooperation as mandated by Law No. 32/2004 must be prioritised. Cooperation will
help the regions to overcome destructive disputes, including those over budget inefficiency, narrowing
economic scopes, and land and natural resources management. Management of natural resources,
including rivers and forests on customary land in particular, could benefit from greater cooperation.
Conditions for successful inter-regional cooperation include geographic proximity, mutual interest
in shared resources, educational facilities, and fiscal and managerial support. All such conditions
should be considered in attempting to learn from the best practices of inter-regional cooperation.
District Head regulations, reinforced by local regulations and national laws/regulations can help to
institutionalise these arrangements.

Fourth, policy must be effectively disseminated. The public should enjoy adequate education in order
to analyse and critique government policy, including in regional development stakeholder forums.
Information on local governments’ performances in implementing existing policy should accompany
all public education. To support these objectives, stakeholders (including academics, NGOs, and
businesspeople) should be provided with all necessary information on policy processes so that they
may act as a “check and balance” on local governments.

2. Re-engineering government bureaucracy

The efforts of various local governments to increase the accessibility and quality of basic services
like education and health through budgetary measures reflects the necessity of bureaucratic
reform. Improvements to bureaucratic efficiency through Government Regulation No. 8/2003 and
Government Regulation No. 41/2007 have had some success, yet many regions remain saddled with
bloated and poorly functioning bureaucracies. Bureaucratic reform must be thorough and consistent,
and its success should be monitored by reference to concrete action plans.

At the national level, there have been no meaningful advances in bureaucratic reform. Efforts by
the Ministry for Administrative Reform to prepare a draft law on government administration should
be complete by the end of 2009. These reforms ought to take account of organisational structure,
personnel, capacity building, career development, salary and supervision, and they should provide
significant freedom to local governments to proceed according to their own needs. The reforms
should also institute thorough inspections of “civil service certificates” to ensure high standards of
service and qualifications for all civil servants.52

In the meantime, individual institutions can initiate their own reforms within the limits of current
laws and regulations. Successful bureaucratic reforms can be assessed and used as models to be
replicated by others.

Bureaucratic reform requires the absolute support of the bureaucrats who will be implementing it.
In the long run, the character and capacity of bureaucrats can be improved through the contribution
of educational institutions, including curriculum reform at public service education institutes. Legal
awareness should also become part of the curricula at other government service institutes (in regional
Schools of Government Affairs, for example). Likewise, curricula should address issues of justice,
poverty, gender, and militarism. Indonesian law faculties and others ought to work in collaboration
to replicate such reforms.

3. Budget Politics
Budget increases for the poor and marginalised
Implementation of Law No. 33/2004 on Balancing Central and Local Government Finances will
require an increase in the proportion of net state income allotted to DAK. This increase will improve

66 National StrategY ON access to justice

the ability of governments in less developed regions to implement education, health and rural
infrastructure programmes.

By following sectoral policies, the central government can increase the share of funds directed to
programmes serving the poor and marginalised (for example, initiating land certification and micro-
enterprise initiatives). A sectoral policy should support regions in creating new territorial centres,
including centres of economic activity. Optimally, all development activities should expand – both
in existing growth centres and in new regions yet to meet their economic potential – based on cost-
benefit analyses conducted in all the regions of Indonesia. Deconcentration funds and aid efforts
should be subject to comprehensive evaluation and assessments. The results of such evaluations can
contribute to the determination of decentralisation funding priorities, thus allowing for more efficient
use of such funds by local governments.

There should be an affirmative policy in the regions, prioritising budget allocation to programmes
for the poor and marginalised. To this end, a Government Regulation should be issued requiring
community facilitators be included in regional budget development processes to represent the
interests of the poor and marginalised.

Effective budgets
A balance must be struck between local government autonomy on the one hand and the central
government’s role in preserving the national interest on the other. This requires a re-examination
of the budget development process in light of good governance principles to identify and remove
systemic problems, whether in relation to national laws or regional autonomy. Budget mechanisms
should improve on the basis of accurate assessments of basic service needs to ensure the most
appropriate budget allocations.

For the policy to be effective, the Government requires a monitoring and evaluation system for
regional financial performance, backed by fiscal sanctions and rewards for local governments based
on their performance in delivering public services.

Government officials who misuse state funds should receive appropriate disciplinary action, but they
should also face criminal charges if offences are committed.

4. Community Legal Empowerment

Local governments can advance initiatives to support and strengthen legal empowerment because
they have complete authority over budgetary allocations, resource management, and other related
activities. The limited funding and geographical reach of most NGOs means that they are unable to
carry out legal empowerment on their own. If legal empowerment is not accelerated however, this
will retard development, as it leads to government co-optation on the one hand and disputes on the
other—thus undermining social stability and sowing seeds of violent conflict and public distrust.

Legal aid budget commitment

To help the poor and marginalised, a certain percentage of regional budgets must be used to establish
regional legal aid services. Before this can occur, local governments require a law on compulsory
legal aid. Best practices should be brought to the attention of local governments, politicians, and
the public, so that legislators develop the necessary political will for enacting such a law. Regional
budgets in which legal aid has had adequate priority will need to be publicised. A further measure
would be to amend the Permendagri (published each year to correspond with the drafting and
reporting of

National StrategY ON access to justice 67

realised regional budgets) to provide for legal aid as a core budget item. Such a provision would
raise awareness within the local governments as to the importance of legal aid. Since such measures
would no doubt be popular and the leaders who brought them acclaimed, we may reasonably expect
the passage of just such measures.

The same strategies used to mainstream gender in the budget process can now be used to promote
legal aid and access to justice, particularly for the poor and marginalised.

5. Implementing Principles of Transparency, Participation and Accountability

Local governments require concrete policies that guarantee stakeholder forums are held on a
regular basis. National standards should therefore require local governments to develop a law on
transparency, participation, and accountability (including an obligation on local governments to form
Transparency Commissions). To implement Law No. 14/2008 on Public Information Transparency,
local governments are already required to hold stakeholder forums on a regular basis and to form
Transparency Commissions with public representatives as members.

To maintain the quality of these forums, local governments should ensure that those with relevant
skills are actively involved, and staff should be trained in best practices for transparent, participatory,
and accountable development. Governments may then decide to adopt measures already in currency
among civil society organisations. Successful policy implementation will thus rely on replicating
best practice rather than merely adopting tired conventions.

6. Support for Local Dispute Resolution Mechanisms: A Policy of Rights Restoration

When disputes arise over land ownership, inheritance, defamation, and the like, those involved
may consider customary and village mechanisms as an alternative to formal state justice. Such
mechanisms are suitable so long as they do not conflict with human rights. At the local level, such
alternative mechanisms not only enjoy popular support, they also receive the budgetary support of
local governments. Encouraging alternative dispute resolution mechanisms can therefore strengthen
the autonomy of villages and rural areas within the hegemony of districts and municipalities in local
governance.

The weakness of local dispute resolution mechanisms can be dealt with through institutionalisation,
a process that can make use of local community leaders. Institutionalisation allows for the effective
execution and monitoring of judgments so that disputes will not recur.

7. Increasing Economic Opportunity to Achieve Access to Justice

Economic opportunity is critical to improving access to justice for the poor and marginalised. By
increasing fiscal capacity through reformed budget politics, the central government can mobilise
savings to help the regions optimise the functioning of the Institute of Professional Training (Balai
Latihan Kerja or BLK) and other professional training institutions established by government entities
such as the Ministry of Industry (BLKI) and the Ministry of National Education. Revitalisation of
such institutions will promote new forms of financial access for the poor and marginalised. Public-
private partnerships are also essential in the development of training institutes and the employment
of their graduates. This “3 in 1” arrangement (synergy of the three components of the national
training system: training, certification, and employment) should be a priority of local government
policy.

68 National StrategY ON access to justice

Meanwhile, funds should be allocated for the development of small business and micro-enterprise
(through access to capital, markets, and management skills). Where possible, local governments
should be required to allocate a fixed minimum percentage of their budgets for such purposes.

National StrategY ON access to justice 69

 3.3.7 ACTION PLAN ON ACCESS TO JUSTICE IN LOCAL GOVERNANCE
70
OBSTACLES STRATEGY ACTION PLAN
I. Bureaucratic Reform and Improvements in Basic Public Services
1. The bureaucracy Reform the bureaucracy 1. Issue a law on 1. Law on Governmental
remains inefficient to improve service and government
and inadequately efficiency administration as a
professional primary reference in
bureaucratic reform
2. Reorganisation 2. Comprehensive new
of bureaucratic
structures and
working procedures
(SOTK) of all
ministerial agencies
and the Union of
Regional Work
Apparatus (SKPD)
National StrategY ON access to justice
3. Rationalisation of 3. Rationalisation of civil
civil service where
necessary
Responsible Party
TIME
(Organisation/
OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
1. Bureaucracy provides Ministry of Administrative
Administration professional, efficient, Reform
includes provisions effective service
on organisational
structure and conditions
of employment
(recruitment,
remuneration) and
capacity development
(career advancement
and monitoring)
2. Budgetary efficiency All ministers, agency
SOTK from the various in the bureaucracy directors, Governors,
Ministerial agencies and improves (30% Regents and Mayors
SKPD reduction in
outlays) for services
in education,
health, and basic
infrastructure
(housing, drinking
water, electricity, etc)
All ministers, agency
service at national and directors, Governors,
regional level Regents and Mayors
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
2. Poor and Improve the quality of Implement Presidential 1. Every ministry, Fulfilment of minimum All Ministers, Agency
marginalised people basic services (health, Regulation 65/2005, institution and local service standards, Directors, Governors,
are unable to obtain education and basic creating a minimum government maintains a (particularly in health, Regents and Mayors
basic services infrastructure) standard of service at minimum set of service education and basic
national and local level, standards (especially infrastructure, i.e. housing,
complete with systems in areas of health, water, electricity, and
for monitoring and education and basic transportation)
evaluation infrastructure—housing,
water, electricity and
transportation)
2. Gauge people’s Governors, Regents, Mayors
satisfaction with basic
services (health,
education and basic
infrastructure) as
provided by the regional
governments
Improve the quality of Modernise bureaucratic 1. Interior Ministry Guarantee of civil rights Minister of Home Affairs
service administration services and provide for regulations on free civic and all their benefits to all
free civic administration administration services citizens
(birth certificates,
identity cards, marriage
certificates, and death
certificates) for all
Indonesian citizens

National StrategY ON access to justice

71
72
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
2. Regional or District Regents, Mayors
Regulations for the
provision of free civic
administration (birth
certificates, identity
cards, marriage
certificates, death
certificates) for all
Indonesian citizens in
all regions

3. Use of information Regents, Mayors

technology in the
system of civic
administration

4. Integration of civic Coordinating Minister

administration with the for People’s Welfare;
social welfare system Coordinating Minister for
(single identity number) the Economy

National StrategY ON access to justice

 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Improve the quality of Improvements to 1. National standards Increase people’s Interior Minister
the complaints system the quality of the (Department of Home satisfaction with
for public services complaints system for Affairs) on the formation the quality of public
public services of systems for handling services
complaints against the
public services
2. System for handling Regents, mayors
complaints against
public services at the
regional level (in at
least one district/city per
province)

II. Harmonisation and Improvement to the Quality of Regional Policies

Low quality and lack Improve the quality of Establish RIA 1. Presidential regulation Improve the quality and President, Minister of
of harmonisation of policies and support (Regulatory Impact to implement Law social acceptability of Law and Human Rights
legal regulations in their implementation Assessment) to No.10/2004 on Government policies
the different regions coordinate regional Formation of Legal
policies that meet Regulations, particularly
the principles of on the requirement of
the central and regional
transparency,
governments to carry
participation and
out RIA (Regulatory
accountability while Impact Assessment)
analysing the costs in the formation of

National StrategY ON access to justice

and benefi ts of regional and other legal
particular policies regulations with all
relevant SOP (standard
operating procedures)
and institutional forms

73
74
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y 5 Agency)
2. Institutionalisation All Ministers, Agency
of RIA in regional Directors, Governors,
government technical Regents and Mayors
departments (and in
the national ministries
and Institutions) of at
least one district/city per
province)
3. Regional regulations Governors, Regents,
(on regional budgets Mayors
and other matters) are
made on the basis of
the RIA process
Institutionalise RIA Evaluation results for Governors, Regents,
in evaluating current regional, district, and city Mayors
provincial regulations governments (regarding
poverty reduction, tax and
retribution, budgeting, or
other matters) through the
implementation of RIA (in
at least one district/city
per province)
Improve the Resource person/ Government regulations
institutional capacities specialist staff member for for the allocation of

National StrategY ON access to justice

of the regional every regional assembly funds to institutionalise
assemblies specialist staff in the
regional assemblies
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
III. Budget Policies for Realising/Improving Access to Justice
1. Current use of • Enact budget Poor and marginalised 1. Involvement of poor and Improved quality of Governors, regents,
funds is inadequate policies taking communities’ marginalised people in life for the poor and mayors
for fulfilling the account of involvement in the the framing of regional marginalised
needs of poor the poor and framing of regional budgets through RIA,
and marginalised marginalised, government budgets as one part of a larger
communities allowing them process of consensual
development planning
to receive basic
services (health, 2. Regional regulations on Governors, regents,
education budget management mayors
and basic that require allocation
infrastructure) of funds to satisfy
services to the poor and
marginalised (health,
education, physical
infrastructure, including
water, electricity and
transport)
• Budget policies Allocate funds to 1. Department of Home 1. Greater public Minister of Home Affairs
to improve poor improve poor and Affairs Regulation on awareness of the law
and marginalised marginalised people’s annual harmonisation
people’s knowledge of the law, of the regional
knowledge of the as well as the shelter budget, requiring
law, as well as and support they may budget allocations for

National StrategY ON access to justice

counselling and legal
the shelter and find in the law
aid to the poor and
support they find in
marginalised
the law

75
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Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
2. Regional regulation on 2. Legal protection Governors, regents,
budgets requiring funds for the poor and mayors
for counselling and legal marginalised (at least
aid (in at least 50% of 50% of those facing
the districts and cities of court cases)
each province)
3. Improve fiscal 1. Carry out 1. Conversion of Optimise the use of Minister of Finance
capacities and comprehensive deconcentration and funds in cooperative
budgetary efficiency evaluations of support assignments programmes between
of regional how effectively funding into centre and regions
governments to deconcentration decentralisation funds,
improve service and support in the form of Specially
to the poor and assignments Allocated Funds whose
marginalized funding is employed use is at the discretion
of regional governments
2. Improve the quality 2. Central government Minister of National
of funds dispersal provided technical aid Development
for decentralisation to regional governments Planning and
funds for improving budgetary Minister of Finance
efficiency (20 districts
and 10 cities as model
projects)

National StrategY ON access to justice

 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
IV. Policy for the Development of New Autonomous Regions
1. New autonomous 1. Improve the Central government Pilot projects in ten New autonomous Minister of Home Affairs
regions are capacity of new provided aid to the districts/cities to serve as regions provide higher-
developing very autonomous regions new autonomous role models to other new quality service
quickly to provide service regions to improve autonomous regions
to the poor and the quality of basic
marginalized services; best
practices in the
fields of health,
education and basic
infrastructure
2. Create synergies Institutionalisation 1. National standards Service improvements Minister of Home Affairs
in the policies and of inter-regional (Department of Home leading to greater social
programmes of cooperation to improve Affairs) on cooperation resources
autonomous regions service to the poor between regions for
based on shared and marginalised improvement to basic
interests services for the poor
and marginalised
(health, education, and
basic infrastructure,
including housing,
water, electricity
and transportation);
standards also for

National StrategY ON access to justice

implementation of the
bio-region plan and
other matters
2. Technical support to Minister of National
optimise inter-regional Development
cooperation (at least Planning and
two cooperative trial Minister of Home Affairs
projects)

77
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Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Policies on land use Evaluate new 1. Comprehensive Improve the quality of Minister of Home Affairs
to optimise regional autonomous areas examination of regional service by optimising
resources development activities the number of
(primarily to determine autonomous regions
success or failure) so
positive experiences
may be replicated
in new autonomous
areas, and to serve
as a reference for
further development of
autonomous regions
2. The planning of new Minister of Home Affairs
autonomous regions
is based on technical
knowledge and open
to the suggestions of
various functionaries;
recommendations for
new regions may only
reach the parliament by
way of the executive
3. Institutionalisation of Minister of Home Affairs
the consolidation of
autonomous areas

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3.4 Access to Justice in the Land and Natural
Resource Sector
Up to now, land and natural resources in Indonesia have been employed solely in the name of
development, yet these resources have not provided prosperity to all Indonesians, and particularly
not the poor and marginalised (including adat communities, farm workers, fishermen, and women).53
Land tenure and natural resource management are still far from achieving the goals of social and
environmental justice for all, as indicated by the inability of the poor and marginalised to enjoy their
rights to land and natural resources; their minimal access to the benefits of natural resources in their
region; the declining quality of life due to exploitation and pollution; and the natural disasters caused
by government and corporate mismanagement.54

Efforts to provide the poor and marginalised with access to justice in land and resource ownership and
management have been hampered due to the following ongoing predicaments: (1) imbalanced land
and natural resources ownership; (2) degraded environmental conditions resulting in environment
catastrophes; (3) poverty;55 (4) conflict, and the tendency to criminalise the natural resource
management practices of poor and adat communities;56 (5) liberalisation of natural resources
management; (6) non-integrated state institutions; and (7) weak governance of public institutions in
the field of land and natural resources.

The greatest challenge facing access to justice in the 2010-2014 period will involve the provision of
a measurable action plan significantly impacting the aforementioned problems. In the coming five
years, there will have to be a strategy for making land and natural resources work for the social and
economic welfare of the poor and marginalised. These resources are also expected to provide an arena
for socially integrated development and to enhance the capacity of poor and marginalised people to
strengthen their cultural identity and their responsible self-governance in land and natural resource
management. The poor and marginalised must be involved in the process of decision-making related
to land tenure and natural resources management in their local area.57

Specifically, the following conditions will have to be met: (i) clear and specific legal framework on the
rights of the poor and marginalised to land and natural resources; (ii) accessible and adequate areas
to enable the poor and marginalised to utilise and control land and natural resources; (iii) individual
and communal rights to land and natural resources for the poor and marginalised; recognition and
protection of rights; (iv) financial and service value added to land and natural resources in areas
inhabited and managed by the poor and marginalised; (v) simplified procedures for the poor and
marginalised to recover their rights following conflict or natural disasters; (vi) strengthening of
regional institutions, either based on adat or other norms , as a means of community governance of
land and natural resource management to ensure social and environmental justice; (vii) improvement
in the quality of environmental and natural resources; and(viii) improvement of state governance for
land and natural resources.

This strategy for achieving access to justice in land and natural resources does not deny the efforts
of both government and civil society in promoting legal and policy reform and changes, and their
initiatives on conflict resolutions. There have been some positive developments in the last years such
as the agrarian reform programme implemented by the National Land Agency (BPN); the Ministry
of Forestry policy of granting legal access to communities to utilise forest resources through People’s
Forest Plantations and Community Forests and the like; and regional regulations that have been
drawn up to deal with rights to adat land, recognition of adat communities, and community-based

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management of forest, coastal and marine resources. Similarly, there have been regional regulations
developed by involving communities in public consultation, and various mechanisms that have made
people more active and aware in law and public policy-making. In this same period, there have been
successful efforts to transform conflicts into cooperation between central and regional government,
the private sector and communities.

This strategy also acknowledges the Indonesian Government’s international commitments on

environmental conservation. Reducing Emissions from Deforestation and Forest Degradation
in Indonesia (REDD)58 is only one such example. Laws and policies are currently being prepared
to provide a legal foundation to this mechanism,59 while REDD pilot projects have already been
initiated in certain areas.60 Nevertheless, the ability of REDD to protect and benefit the poor, the
marginalised, and particularly adat communities, remains in question. Will this commitment to
emissions-reduction repeat the mistakes of past conservation programmes by making it difficult for
the poor and marginalised to maintain and protect their rights to land and natural resources? Previous
conservation commitments have tended to retard quality of life and trigger conflict in affected areas.

The facts enumerated above are intended to provide a strong groundwork for legal and policy reform,
and to expedite the formation of holistic yet realistic development strategy. Nonetheless, problems
and limitations in law and policy frameworks will have to be dealt with before these goals can be
met.

3.4.1 Problems of the Normative Framework

Article 33(3) of the Constitution states that land, water, and natural resources are controlled by the
State and utilised for the welfare of the people. This is the constitutional foundation of regulations
relating to land and natural resources in Indonesia in a number of laws, including: Law No. 5/1960
on Basic Agrarian Law; Law No. 5/1990 on Natural and Biological Resources and Ecosystem
Conservation; Law No. 23/1997 on Environmental Management; Law No. 41/1999 on Forestry;61
Law No. 7/2004 on Water Resources; Law No. 22/2001 on Oil and Gas; Law No. 27/2003 on
Geothermal Energy; Law No. 18/2004 on Plantations; Law No. 31/2004 on Fisheries; Law No.
26/2007 on Spatial Planning; Law No. 27/2007 on Management of Coastal Areas and Small Island;
and Law No. 4/2009 on Mineral and Coal Mining.

However, the existence of such laws and regulations has not, in general, provided unified direction
in land and natural resource tenure and utilisation, especially for the poor and marginalised, nor
a management strategy that includes sustainable goals for conservation.62 People’s Consultative
Assembly Decree No. IX/MPR/2001 on Agrarian Reform and Natural Resources Management was
meant to give a direction for reform of such regulations in Indonesia. However, it has not been
carried out as expected. Reformation of laws in the land and natural resources sector is hampered by
a number of problems, including the following:

(1) Interpretation of the State’s right to control

Article 33(3) of the Constitution asserts the right of the State to control natural resources. In
practice, however, the Constitution has been misinterpreted. The State (now simply equated with
the government) not only bears the right to formulate policy (beleid), regulate (regelendaad), and
govern (bestuursdaad), but also enjoys the rights to own and manage (beheersdaad) and supervise
(toezichthoundendaad) the land, water, and natural resources they contain.

80 National StrategY ON access to justice

Problems arise when the Government imposes laws geared toward further capital investment or
fulfilling conditions imposed by donor countries and international funding institutions. The laws
then get used as an instrument to facilitate investment rather than provide people with protection,
social welfare and environmental justice. Numerous policies, for example, grant rights over natural
resources and land to the investors, rather than to the people.63 These laws certainly bear some
responsibility for minimal participation, especially of the poor and marginalised, in the process of
developing laws, the decline of people’s access to land and natural resources, the deteriorating legal
relations of people to their land and natural resources, the absence of adequate legal protection for
people’s rights to local land and natural resources, and minimal environmental conservation.

(2) Overlapping laws and regulations

Various regulations on land and natural resource usage either conflict, overlap or otherwise interfere
with one another, whether vertically (between lower and higher level regulations) or horizontally
(between regulations issued at the same level). A general perception exists that, as an instrument of
state policy, laws and regulations are influenced by elite, sectoral, and regional interests rather than
objective neutrality. These vested interests are responsible for much of the overlap and conflict found
among laws and regulations.64 Often, conflicts arise even within individual sectors.

The People’s Consultative Assembly Decree No. IX/MPR/2001 on Agrarian Reform and Natural
Resources Management was issued to address precisely such problems. In point of its consideration,
the Decree states that various regulatory regimes dealing with land and natural resources are
overlapping and conflicting.

(3) Overlapping licenses and the neglect of cautionary principles in granting licenses
A similar situation arises in the grant of permits for managing natural resources. Permits are regularly
issued by various different government agencies for the same area—mining and forestry permits
issued for the same area of forest, for example. Lack of coordination between sectors and levels
of government (central and regional; provincial and district) must be reviewed. By issuing permits
without paying attention to the availability of natural resources, the government is likely to cause
environmental disasters and squander the nation’s supply of natural resources.

(4) Foreign capital and its impact on community prosperity

Law No. 25/2007 on Capital Investment and Presidential Decree No. 77/2007 on the List of Closed
and Conditionally Open Businesses for Capital Investment, as amended by Presidential Decree No.
111/2007 have encouraged liberalisation in the management of natural resources. Several stipulations
in the Presidential Decree have eroded people’s sovereignty over natural resources. One stipulation
allows foreign capital interests to invest in 95% of the total share of drinking water, strategic
agricultural commodities’ cultivation (rice, corn, etc.), plantation on more than 25 hectares of land,
and oil and natural gas exploration. This regulation requires further review.

(5) Harmonisation of spatial planning and the guarantee of available land for
community use
Regional spatial planning is regulated by Law No. 32/2004 on Regional Government and Law No.
26/2007 on Spatial Planning. However, these two laws cannot yet support integrated spatial planning,
nor can they accommodate poor and adat communities. Spatial planning serves investors’ interests
over people’s, thus maximising revenue, but causing serious harm to communities, particularly adat
communities, and the environment.

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Industrial concentration in urban areas and on riverbanks requires immense quantities of water, and
produces immense waste. Regional governments thus tolerate the establishment of industrial zones
beside rivers or in areas where rivers are accessible for the disposal of waste. As a result, spatial
planning does not consider the environmental protection of watershed areas.

Spatial planning based not on riparian ecology, but rather on administrative boundaries, causes
environmental damage in upstream areas and water pollution downstream. Such damage is often
irreversible. It can cause conflict in neighbouring districts, and long-term degradation of livelihoods
for those living at the riverside. Therefore, it is important to change the paradigm of natural resource
management so that it prioritises principles of integration and eco-regional approaches.

Various government agencies must coordinate their actions in the field of land management.
Harmonisation of forestry and provincial spatial planning in Central Kalimantan and Riau, for
example, has yet to be finalised. Allotments overlap, and forest areas shift from one use to another.
In several areas of Java, offshore mining exploration projects have now moved onto land, thus
overlapping with residential and farming areas and causing severe conflict. Land management
policies prioritise mining investment over natural and social environments (see the Lapindo Mud
case in East Java). Meanwhile, outside Java, mining exploration is permitted to impact forest areas,
even those subject to conservation. Clearly the Government favours mineral exploitation over forest
protection. By encouraging development based on natural resource exploitation, the Government
allows forests to be designated for activities regardless of conservation and people’s rights.

Industrial development is generally followed by population increase, but spatial planning in industrial
areas has not provided adequate housing for workers. Low-income workers are forced to live in self-
made “temporary settlements” surrounding factories. These settlements violate land management
rules and raise the ire of local residents. Economic growth centred on large cities impacts spatial
planning of neighboring areas. A need for housing forces urban workers out to peri-urban areas. High
demand leads to the displacement of local people as their established farm land is converted into
housing estates. Ultimately, conflict is inevitable.

Indigenous communities and the poor both require adequate land. Even land that has been formally
designated as forest is never free of settlements and adat communities.65

(6) The direction of land management and natural resources policy

No integrated policy exists as a point of reference to cover all areas of land and natural resource
management. Neither People’s Consultative Assembly Decree No. IX/MPR/2001, Law No. 17/2007
on the 2005-2025 National Long-Term Development Plan, nor the various other laws impacting land
and natural resource management have succeeded in guaranteeing a single approach to management
issues. While a great number of laws and regulations stress exploitation, others tend to prioritise
conservation.

An integrated approach to land, water and air quality (taking into account even the small islands
not yet bound by administrative borders (i.e. an eco-regional approach), has yet to be taken up in
legislation. New laws, amendments to old laws,66 and institutions founded to formulate and monitor
natural resource policies should all be harmonised towards one shared goal.

82 National StrategY ON access to justice

(7) Unstructured legal framework on the rights of indigenous people, including
complicated criteria and procedures for recognition in national and regional laws
Indonesia has made great strides in the past decade to recognise adat communities’ rights over land
and natural resources. Article 18B and 28I of the second amendment to the Constitution, People’s
Consultative Assembly Decree No. IX/MPR/2001, Law No. 41/1999, Law No. 27/2007, and
Regulation No. 5/1999 of the Minister of Agrarian Affairs/Director of the National Land Agency
all serve as examples of this progress. Still, many of these laws are unclear and limited in their
acknowledgement of rights of land ownership and land use; they use normative criteria with little
relevance to indigenous people’s actual lives, and they entail arduous procedures for obtaining legal
recognition.

The Law on Agrarian Reform (UUPA) is one of the few laws to acknowledge indigenous people’s
rights to own land and benefit from natural resources. Even so, the UUPA states that official
recognition must conform to a national interest that is both broadly and variously interpreted. UUPA
also stresses that, in the case of indigenous societies, land ownership is a collective right. UUPA
sees the right as a public right, which is a part of the ownership rights of the State as mentioned in
Article 2(4). Conversely, land ownership is recognised as a private right of citizens which permits
the Government to grant land ownership as mentioned in Article 16, including ownership, right of
use, right to use a building, etc. This ambiguity allows for varying interpretations of traditional land
rights. Law No. 41/1999 on Forestry recognises traditional, communal forestry rights (adat forest)
as a part of state forest (Article 5(2)). However, Law No. 27/2007 on Management of Coastal Areas
and Small Islands interprets adat land rights as a private right; this is evident in the law’s provision
for adat peoples’ right to coastal area management (Article 18, point c).

The Indonesian legal framework has yet to develop a clear conception of indigenous people’s rights
with regard to land and natural resources. Are their rights public, private, or both? Even if they bridge
the public-private divide, a question remains as to whether land and natural resources rights truly
have the character of public and private rights, with what agency such rights are invested, and within
what legal framework they can be recognised.

Criteria for designating a community as “adat” are often simplistic and ignore the realities and
dynamics of adat communities. Stipulating that certain criteria must be met in order for an adat
community to be recognised as such, for example that it should be in the form of an association, is in
reality very problematic. Most of the terms we have for distinguishing adat populations come out of
classic sociology and have little relevance to contemporary social life.

Further complications arise as, according to Article 67(2) of Law No. 41/1999, an indigenous
community gains recognition only once it has been acknowledged in regional regulations, yet there
is no indication as to whether these regional regulations should be issued at the provincial or district
level. The Forestry Minister’s Circular No. S.75/Menhut-II/2004 states that the determination of an
indigenous people’s identity is regulated by the province, but indigenous people have very limited
access to provincial government.

Recognition of indigenous people’s rights to land and natural resources is meaningless when framed
as they are, for example, in the case of Ministry of Agriculture Regulation No. 5/1999. This states
that customary rights can only be claimed on land that has never been owned otherwise, including
cultivation rights on land (HGU). This provision is considered by adat communities to be unfair
because many HGU are issued unilaterally and without proper consultation.

National StrategY ON access to justice 83

(8) Designation of the object of agrarian reform
Referring to Law No. 17/2007, UUPA and Presidential Decree No. 6/2006, the National Land
Agency is conducting agrarian reform to reorganise economic, political, and social structures, and
provide access to land. As a combination of asset and access reform, agrarian reform is not just land
redistribution, but also expansion of access leading to higher land values.67 Agrarian reform can
involve the redistribution of state land to the landless, including land over which private rights have
expired or will expire, ex-mining land, and converted production forests, for example.

Agrarian reform should receive legal, social and institutional support. In the long term, an integrated
programme of agrarian reform should involve redistribution, registration, restitution and recognition
of customary rights, and dispute resolution.68 If the object of agrarian reform is not redefined within
the next five years, this chance for thorough reform to land use will be lost. Reform will remain limited
if it is restricted entirely to state land.69 Even this narrow focus, however, raises questions: What and
where precisely is state land? What is the status of land claimed by adat communities, but licensed
for forestry or mining activities? Can this land be categorised as state land, and therefore subject to
agrarian reform? Just as problematic is the quality of state land that will be redistributed, particularly
in the case of converted forests and ex-mining land. Will this suit the needs of the poor? If agrarian
reform is truly aiming to reform access, then the quality of land must be the prime consideration so
that poor people can improve their quality of life in the shortest possible time.

(9) The absence of institutions and special mechanisms for settling land and natural
resources conflicts
Conflicts over land and natural resources generally differ in character from other conflicts. They
divide parties into those who enjoy access, resources and power, and those who do not. These conflicts
tend to continue from one era into the next, emerging from and complicated by the succession of
governments involved. Settling these conflicts must therefore take law, politics, society, economics,
and history into account.

Dispute resolution should be a part of a wider process of agrarian reform. Besides providing a sense
of justice for victims, it also encourages structural changes by making ownership, control, and use
of land and natural resources more just. Land and natural resource conflicts cannot be resolved
solely by conventional judicial procedures, which are often complex and inaccessible to the poor and
marginalised, as well as tainted by corruption and nepotism.

Such procedures can only further victimise the victimised. Repressive approaches, including threats
of violence, on the other hand, only criminalise the poor and marginalised while compounding the
violation of their basic human rights.

Finding dispute resolution procedures that are acceptable to all parties remains difficult, and people
often turn to informal procedures, mechanisms and mediation processes. In certain cases these
are effective, but just as often these procedures do not ensure the rights of the weaker party. They
therefore fail to effect permanent solutions.

Land and natural resource conflicts in Indonesia require specific models and institutions equipped to
handle them. This concern was raised in the 2005-2009 Medium-Term Development Plan, but as yet
there have been no initiatives to bring such models and institutions to light. The 2010-2014 MTDP
should therefore designate as its main priority the establishment of a special agency to resolve land
and natural resources conflicts. The effort should begin by providing the new agency with a strong
legal footing.

84 National StrategY ON access to justice

3.4.2 Awareness of Laws, Rights, and Justice
in Land and Natural Resource Use and
Management
Legal awareness will become an important element in the achievement of access to justice only
when there has been a significant restructuring of the current normative legal framework. Many
people suffer injustice with regard to land and natural resources due not only to ignorance of the law,
but also to laws and regulations unfavourable to them. Several activities, then, must be carried out
simultaneously. The normative framework must be thoroughly and comprehensively reshaped, while
civil society organisations work to improve people’s awareness of their rights to land and natural
resources. There must also be changes to the paradigm of legal awareness, as well as to the attitudes
of government servants and law enforcement officers who tend towards legal formalism rather than
substantive justice. Efforts to improve people’s awareness of the law and their rights should bear in
mind the following facts:

(1) Weak public access to information on laws, regulations, and international instruments
that could serve as a basis for possession, use, and conservation of land and natural
resources
The assumption that “everybody understands the law,” which is used as the basic doctrine of law
enforcement in Indonesia, leads to a perception that the Government is not obliged to encourage legal
awareness. Formal legitimate representation of the people in Parliament is regarded as providing
sufficient public access to information. The importance of access to information in democratic life is,
however, guaranteed by the Constitution in Article 28F, even though it has not yet been implemented
by means of law and regulation. Law No. 14/2008 on Openness of Public Information along with
similar regional regulations must be enforced responsibly.

The strength and quality of people’s access to information determines the extent of their democratic
participation, which informs the quality of justice and democratisation in the management of natural
resources and land. Article 28F of the Constitution states that a policy on access to information for
land and natural resources must be based on the following principles: first, access to information
is a basic right of the people that the State is obligated to respect, fulfil, and uphold; and second,
people have the right to seek, obtain, possess, store, process, and disseminate information through
all available means.

(2) Weakness of social organisations and regional institutions as means of informing

the public, facilitating collective action, and conducting fair community-based
administration
The poor and marginalised are not yet mobilised in strong social organisations, while regional
and indigenous institutions are vulnerable to the hegemony of capital and state power. Social
disintegration obstructs the poor and marginalised from organising against social and environmental
injustice, whether stemming from law and regulation or from those who exploit natural resources.

(3) Tendency to legal formalism over substantive justice on the part of government and
law enforcement officials
Government and law enforcement often do little more than broadcast the law, without bothering
to arrive at a critical or progressive perspective on its content. The strong tendency toward legal
positivism (whereby rules are followed consistently, actions conform to rules, and texts are interpreted

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literally) has narrowed the possibility of legal interpretation favourable to the poor and marginalised.
In the name of law enforcement, individual and collective rights to land and natural resources are
ignored. Implementation and enforcement of the law thus remain far behind the demands of justice.

(4) Inconsistency of political will and government policy

Indonesia enjoys no clear direction in the politics of land and natural resource law due to inconsistency
of policy at both the central and regional levels.

(5) Corruption and natural resources

The corruption of law enforcement in matters of land and natural resources contributes significantly
to the destruction of natural resources and poor legal enforcement in this sector. Corruption in the
exploitation of natural resources is a global phenomenon and has several contributing factors: (i)
non-recognition of people’s ownership rights, particularly among the poor, so that the State presses
its own de jure claims of ownership; (ii) low capacities among the poor and marginalised dependent
on natural resources to monitor practices leading to corruption; (iii) difficulty in monitoring natural
resources exploitation due to the relative isolation of these types of activities; (iv) unclear normative
framework, meaning that the regulation of natural resources is based on the discretion of public
officials; (v) complex supply chain of natural resource commodities; and (vi) weak state monitoring
and ”government piracy” in support of corporate interests, demonstrated by the influence of lobbyists
and powerful financial corporations in formulating law and distributing licenses for land and natural
resources.

(6) Education on land and natural resource law

Education must contribute to people’s understanding of land and natural resources. Law faculties
currently teach agrarian law quite narrowly, limiting their subject matter to land rather than
addressing wider issues of natural resources. Thus there is little understanding or critical study of
forestry law, mining, water, and administration. Even when studies of “non-land” agrarian law do
address these issues, they stop far short of environmental justice or eco-centric approaches.70 The
practices and environmental wisdom of indigenous people are neither taught nor critically addressed;
understanding of the law’s relation to natural resources is therefore superficial.

3.4.3 Access to the Appropriate Forum

Land and natural resource conflicts require their own designated forums. Currently, there are
five methods for addressing land and natural resource conflicts: (1) judicial institutions; (2) local
mediation; (3) forums for informal or customary resolutions; (4) various government institutions
(including the National Human Rights Commission, national and regional Parliaments); and (5)
neglect.

None of these methods resolve conflicts quickly, easily, or permanently. Judicial institutions, for
example, do not provide satisfactory resolution of land and natural resource dispute cases because
they rely too much on formal justice. Meanwhile, an assessment by the Ministry of Environment
found that only 48 environmental cases reached court between 2002 and 2006. In 2008 the number
reached 68 cases. Although the number has increased, many of these cases have not had satisfactory
outcomes. The Indonesian Centre for Environmental Law (ICEL) stated that out of 13 environmental
cases against state-owned enterprises, 7 were rejected by the court, 1 was rejected by the Court for
State-Owned Enterprises, 2 were lost in the High Court, 1 was resolved out of court, and in 2 cases

86 National StrategY ON access to justice

a part of the accusation was accepted but was not taken any further. As for criminal cases, 2 were
dismissed, 5 were given hukuman percobaan, 7 delivered verdicts in favor of the accused, 1 was
sentenced to a fine, and 1 ended when the defendant fled the country.71 In general, those accused of
environmental crimes have received light punishment, if any. Bringing cases to court is not the most
effective means of attaining justice, either for people or the environment.

Informal mechanisms, such as mediation and customary law, provide alternatives to formal court
proceedings. Such methods are generally more accessible, and in certain cases they can be employed
effectively in defending people’s interests. Even these methods, however, have their weaknesses.
Both systems tend to suffer from manipulation in the interests of the more politically, economically,
and culturally powerful party and thus further victimise women, the poor, and other vulnerable
groups.

Similar problems arise in the use of representative institutions and the National Human Rights
Commission. While these institutions can and do indeed resolve certain conflicts, there is no
guarantee of these resolutions’ permanence. If continuing dissatisfaction is ignored, it will fester
until it becomes uncontrollable.

Given the shortcomings of current methods, a breakthrough is clearly necessary to reduce land and
natural resource conflicts. One option would be a designated institution working on the principles of
transitional justice. The transitional justice model seeks to fulfil the economic, social, and cultural
rights of those who have suffered from the decisions of the past, including indigenous peoples,
farmers, fishermen, workers, women, and children. Experience in implementing transitional justice
principles abroad (South Africa, for example) should serve as an important reference in the formation
of a designated body for resolving land and natural resource conflicts in Indonesia.

3.4.4 Effective Grievance Handling

Conflict often arises due to poor handling of grievances; indeed, conflict should be understood as
a process initiated by a grievance. Even when people are aware of a competent body for handling
complaints, there is no guarantee that the process will proceed easily. The limited number of effective
complaint units in government institutions has prevented the detection of many land and natural
resource problems. The Ombudsman and the Ombudsman’s regional representatives are intended as
one method by which grievances may be addressed, but in reality, they often cannot maintain their
independence. Thus the Ombudsman finds itself trapped in positions of partiality and conflicts of
interest.

Although complaint units exist, the poor and marginalised often find them difficult to access.
Geographical constraints prevent fast, inexpensive registration of complaints, while cultural barriers
can often make communication difficult between complainants and officials.

Slow response on the part of officers responsible for handling land and natural resources complaints
makes the complaint management system ineffective. Inefficient bureaucratic systems, limited
numbers of designated complaints officers and weak public monitoring lead to a hierarchical,
bureaucratic culture that does not serve the interests of ordinary citizens. In short, the absence of a
vigorous complaint management system causes the number of land and natural resources conflicts to
continue increasing.

National StrategY ON access to justice 87

Finally, the complaint management system suffers from inadequate legal protection of witnesses and
victims. Those who report breaches of land and natural resource law often experience violence and
intimidation. People therefore hesitate to file complaints until the situation has become intolerable, at
which point conflict may well have already begun.

An effective complaint management mechanism for land and natural resources would help
substantially in the prevention of conflict. Making information and complaint services accessible
(particularly to victims), improving work systems and bureaucratic cultures, and providing legal
instruments and institutions to protect witnesses and victims are all urgent measures that should be
seen to immediately.

3.4.5 Satisfactory Remedies

Environmental degradation and imbalances in the control of land and natural resources are the two
major challenges of this sector. True justice depends on whether people can enjoy their rights to a
high quality environment, and whether they can regain rights to land and natural resources of which
they have been dispossessed. In practice, these two issues are inseparable.

Agrarian reform and other efforts at opening access to ownership are popular methods for settling the
problems of unequal land and natural resources ownership. However, reform efforts cannot function
without serious efforts to restore damaged environments where people live and work. The restoration
of rights to own and benefit from land and natural resources cannot restore people’s livelihoods if
land is damaged, has lost its economic value, or has become vulnerable to disaster.

Material compensation for damages based on normative principles should be re-examined. Any
decisions or actions affecting rights to land and natural resources should be preceded by a thorough
evaluation of long-term economic, social, and cultural injuries. Evaluations should be carried out in
cooperation with those affected and based on principles of free and prior informed consent.

Particular attention should be paid to the restoration of community rights in ecosystems affected by
natural disasters. Rights should be restored quickly and with due care for the community’s sense of
justice.

3.4.6 Problems of the Poor and the Marginalised

Indigenous people, farmers, fishermen, workers, women, and children are the populations most
severely affected by land and natural resource exploitation for at least three reasons: (i) an absence
of clear norms for recognition, protection and restoration of the rights of these communities with
regard to land and natural resources; (ii) spatial planning policy that does not provide them with
adequate land; and (iii) the difficulty they face in pursuing justice, whether formally, semi-formally
or informally.

The challenge for future legal reforms in land and natural resources is to ensure that the rights of
adat communities, the poor, and the marginalised are recognised. This requires a change in how
these communities are conceptualised so that initiatives to improve their access to justice will
work more effectively. This begins with identifying the most vulnerable groups among those listed

88 National StrategY ON access to justice

above. Regional initiatives, including regional regulations and Regent’s decrees that recognise adat
communities, land, and forests should be encouraged, although there should also be a programme
of harmonisation between regional and national rules. Spatial planning policy in regions containing
adat communities’ territory should also receive support. The rights of adat communities and methods
for their protection should be clearly described in land and natural resource legislation. Finally,
judges should write decisions that are fair to adat communities, the poor, workers, women, and
children with regard to land and natural resources use.

3.4.7 National Strategy on Access to Justice in

Land and Natural Resources
In general, access to justice in the land and natural resources sector consists of five pillars: First, seek
environmental justice. This strategy should include a framework of rights to land and natural resources
and improvements to land management and licensing. Second, develop principles, mechanisms, and
institutions for the resolution of current and past conflicts that will help the marginalised regain
recognition of their rights and access to land and natural resources. Third, empower these groups
to participate in decision-making processes related to the possession and benefits of local lands
and natural resources. Fourth, repair the physical and social environments where these groups live.
Fifth, restructure government administration in land and natural resources, particularly in relation to
spatial planning, public services, and public participation in the formation and monitoring of laws
and policies.

Specific strategies for empowering poor and marginalised groups to access justice in land and natural
resource use should include the following elements:

(1) Improvements to the legal framework and policies on land and natural resources
Overlapping, inconsistent and partial laws and policies that fail to provide justice represent a
fundamental weakness in providing access to justice for the poor and marginalised. The 2010-2014
MTDP requires a specific strategy that will cope with this problem by the following methods:
a. Creation of a mechanism to re-assess laws and regulations pertaining to land and natural resources
that conflict with the Constitution and People’s Consultative Assembly Decree No. IX/MPR/2001,
limit access to justice for these communities, allow opportunities for disproportionate foreign
investment, and threaten the sustainability of natural resources. This mechanism should become a
basis for comprehensive re-assessment of laws and regulations resulting in a reference point from
which to begin changes, improvements and harmonisation of existing laws and regulations;

b. Harmonisation of laws, regulations and formal policies at the central and regional levels should
apply clear and consistent principles to: (i) recognise and protect the rights of marginalised groups
to own, benefit from and enjoy the economic benefits of land and natural resources; (ii) provide
maximum legal protection for these rights; (iii) provide them with opportunities to regain the
enjoyment of rights that have been violated, either due to the illegal behaviour of others, or due to
environmental disasters and conflict;

c. Formation of an integrated legal basis for managing natural resources. This strategy should
provide direction on natural resource management as foreseen by discussions of the Draft Law
on Natural Resources Management more than five years ago. This legislation deserves further
discussion and parliamentary approval;

National StrategY ON access to justice 89

d. Expansion and improvement of public participation in the creation of national and regional laws
involving land and natural resources.

(2) Harmonisation of spatial planning policies

a. Harmonisation of spatial planning policies between region, island, strategic area, and nation,
based on the principles of eco-regionalism and spatial justice, so that the poor and marginalised
have access to healthy environments. Public participation and regional cooperation in the process
of spatial and regional planning. Evaluation of spatial planning policies that violate principles
of bio/eco-regions and social justice for these communities. Coordination in preparing accurate
maps of land use in affected areas;
b. Improvements to licensing systems and their implementation in land and natural resources
management, with respect to the principles of justice and legal certainty for all involved.

(3) Resolution of land and natural resource conflicts

The majority of current land and natural resource conflicts find their origins deep in the past. It is
undeniable that these conflicts have become obstacles to development programmes, and particularly
to activities intended for improving access to justice. The formal court system has not been able to
resolve these conflicts in ways that satisfy the people’s desire for justice. Resolutions should be fast,
precise, and permanent, and they should satisfy the community’s sense of justice. Resolution of land
and natural resources conflicts must be integrated with an agrarian reform program so that more
equitable agrarian structures can emerge. The strategy for resolution of land and natural resource
conflicts includes the following elements:
a. Establishment and strengthening of regional-level conflict resolution mechanisms that respect all
parties’ sense of justice and improve the capacity of regional leaders, traditional institutions, and
mediators to base their decisions on respect for human rights, environmental justice, and gender
justice;
b. Establishment of a designated institution along with mechanisms for resolving land and natural
resource conflicts – especially the most persistent ones – in conformity with the 2005-2009 MTDP
and implementation of traditional justice principles;
c. Acceleration of the establishment of a functioning legal basis for comprehensive agrarian reform,
with appropriate targeting of benefits to poor and marginalised communities;
d. Creation and implementation of a coordinated and thorough strategic reform agenda that integrates
agrarian reform with the strategies for rural development.

(4) Recognition and protection of the rights of indigenous and other marginalised
peoples over land and natural resources
a. Ratification of international law instruments relevant to providing these groups access to justice,
including ILO Convention 169 pertaining to the recognition of adat communities; ensuring that
the principles of such conventions are adopted in laws and regulations;
b. Legal formulations that are clear and unambiguous on the individual and communal rights of adat
communities to land and natural resources in both laws and regulations;
c. Formation of new laws for adat communities, and revision of existing laws currently depriving
these communities of their rights to land and natural resources, with reference to the principles
and assurances of international human rights instruments including the Universal Declaration of
Human Rights and the UN Charter;
d. Improvements to the legal recognition of adat communities in regional laws and regulations;
e. Creation of a database detailing poor and adat communities living in areas of natural resource
exploitation;

90 National StrategY ON access to justice

f. Expansion of land and natural resources managed by these groups.

(5) Empowerment and encouragement of greater participation among the poor and
marginalised
Such a strategy will entail the following elements:
a. Improving access to information among these groups regarding laws, regulations, international
human rights instruments, development plans and licensing in the area of land and natural
resources;
b. Increasing rights awareness among these groups;
c. Facilitation of civil society groups carrying out legal empowerment programmes for adat
communities, poor people, women and other marginalised groups in the field of land and natural
resources;
d. Improving participation among marginalised users of natural resources in development and
special planning and licensing – particularly where development diminishes their quality of life,
economic independence, and social structures – through the principle of free, prior and informed
consent.

(6) Improvements in the capacities of government, law enforcement officials, and

academics
a. Improving the capacity of government and law enforcement officials in implementing law with a
socio-legal perspective; in land and natural resource cases, this will entail social justice for adat
communities, the poor, women, and the marginalised;
b. Improving the contribution of courts in providing access to justice for adat communities, the poor,
women, and other marginalised groups adopting the principles of access to justice and human
rights;
c. Improving public awareness of court decisions on land and natural resource use;
d. Reorientation of instruction on agrarian, environmental, and customary law in university law
programmes.

(7) Restoration of the rights of the poor and the marginalised to land, natural resources,
and a healthy environment
Every effort at dispute resolution and every recognition of people’s rights to land and natural resources
should contribute to a better quality of life for poor and marginalised people. The fact that many land
and natural resource management activities threaten to damage and pollute the environments of
marginalised communities should be the primary consideration of such a strategy.

(8) Improvements to the administration, quality, and responsiveness of public services

in the field of land and natural resources
This will help improve legitimacy, prevent conflict, and improve public services to marginalised
communities. This strategy involves the following components:
a. Confirmation of the existence and functioning of accessible complaints units in every government
office, and a system for filing complaints that is fast, simple and inexpensive;
b. Increases in the number of designated staff responsible for handling grievances at the central and
regional levels;
c. Acceleration of the employment or formation of regional Ombudsmen, or other institutions
for handling public grievances, and improvement in the performance of existing Ombudsman
institutions until they are able to take credible action against maladministration and improve the
quality of public services;

National StrategY ON access to justice 91

d. Creation of a public oversight system for the handling of grievances;
e. Creation of a coordinated system of spatial planning for the whole of Indonesia.

92 National StrategY ON access to justice

 3.4.8 ACTION PLAN ON ACCESS TO JUSTICE IN THE LAND AND NATURAL RESOURCES SECTOR

Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Manylaws,regional Integrate all laws, • Create a guide Implementation of rules for Implement regulatory Director of Regulatory
regulations and policies regulations to regulatory regulatory harmonisation harmonisation in land Harmonisation, Department
on land and policies on land and harmonisation, through Presidential and natural resource use of Law and Human Rights
and natural resource natural resource use particularly in the Regulation, in the revision of for present and future
tenure overlap, into one holistic frame area of land and Law No. 10/2004 regulations, based on Also involved:
contradict based on social and natural resources, principles established • Cabinet Secretariat
each other and contain environmental justice containing the through effective • National Law
vague assurances that principles, criteria, community participation Development Agency
fail to guarantee social indicators and and scientifically valid • National Land Agency
justice to poor people, procedures for the research • Department of Forestry
adat communities, and implementation • Department of Public
other marginalised of regulatory Works (Director General
people; they also fail to harmonisation; of Regional Planning and
adequately protect the include reference to Water Resources)
natural environment the implementation • Department of Maritime
of social and and Fisheries Affairs
environmental justice • Department of Energy
principles and Mineral Resources
• Department of Agriculture
• KLH
• Department of Home
Affairs
• National Board on
Coordination of Spatial
Planning (BKTRN)

National StrategY ON access to justice

• National Development
Planning Agency

93
94
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Presidential Regulation on
regulatory harmonisation
based on principles of access
to justice, and including a
section on harmonisation in
the areas of land and natural
resource use
• Public consultations Publication of the results of Director of Harmonisation,
on standards public consultation Department of Law and
for regulatory Human Rights
harmonisation
Also involved:
Higher education, NGOs,
National Law Development
Agency, Regional
Development Planning Body.
• Formation of an Ministry of Law and Director of Harmonisation,
inter-sectoral working Human Rights Decree for a Department of Law and
group involving civic working group on regulatory Human Rights
associations in the review
review of existing Also involved:
regulations Higher education;
NGOs;
National Law Development
Agency;
National Development
Planning Agency

National StrategY ON access to justice

 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Review of law, Document stating the results Directorate General of
government and recommendations Legislation, Department of
regulations, and of research into the Law and Human Rights
presidential decrees harmonisation of legal
in the area of regulations in land and Also involved:
land and natural natural resource use National Law Development
resources, based Agency, higher education,
on the principles of NGOs
harmonisation
• Amend/revise Amendments/ revisions to Directorate General of
laws, government the laws, government Legislation, Department of
regulations and regulations, and presidential Law and Human Rights
presidential decrees decrees in the area of land
in accordance with and natural resources, Also involved:
the recommendations in accordance with the Legislative body of
of aforementioned recommendations of the parliament,
review aforementioned review Cabinet Secretariat, National
Land Agency, Department
of Forestry, Department
of Public Works (regional
planning, water resources),
Department of Maritime and
Fisheries Affairs, Department
of Energy and Mineral
Resources, Department of
Agriculture, KLH, Department
of Home Affairs

National StrategY ON access to justice

95
96
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Internal Regulatory harmonisation Directorate General of
harmonisation programmes for land and Legislation, Department of
of regulations natural resources in every Law and Human Rights
relating to land and ministry, agency and regional
natural resources government Also involved:
in all ministries Cabinet Secretariat, National
and government Land Agency Legal Bureau,
agencies and in Department of Forestry
regional governments Legal Bureau, Department
with reference to of Public Works Legal
harmonisation Bureau, Department of
standards Maritime and Fisheries Affairs
Legal Bureau, Department
of Energy and Mineral
Resources Legal Bureau,
Department of Agriculture
Legal Bureau, Deputy
Minister of Environment for
Legal Restructuring and
Special Staff of Minister
of Environment for Legal,
Department of Home Affairs
Legal Bureau, Director
Regional Regulations,
Department of
Law and Human Rights,
Provincial, district and city
governments

National StrategY ON access to justice

Create an integrated • Establish a team for Environment Ministry Decree Legal basis establishing Deputy for Legal Planning,
legal basis for directing the reviewing of the establishing a team for public principles for and Environment Ministry.
the management of Natural Resource reviewing and drafting directing the management
natural resources Management Bill of a Natural Resource of natural resources Also involved:
Management Bill National Development
Planning Agency; National
Law Development Agency;
Higher education; NGOs
• Table and expedite Law on the Management of Deputy for Legal Planning,
the passage Natural Resources Environment Ministry
of the revised
Natural Resource Also involved:
Management Bill Legislative body of
parliament, State Secretaries

OBSTACLES STRATEGY ACTION PLAN
Public participation in Improve the quality • Review models for
land and natural and quantity of public public participation
resource laws and participation in framing in the formation of
regulation-making national and regional national and regional-
remains limited regulation of land and level regulation
natural resources
• Enact regulations
establishing the basis
and procedures for
public consultation
in creating new
regulations
(implementation of
Article 53 of Law
10/2004)
OUTPUTS
Document and publish the
results of research on models
for public participation in the
formation of legal regulation
Government regulation
establishing public
consultation as a form of
social participation in the
formation of legal regulation
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
A legal basis for public Director of Law and
participation that reaches Human Rights, National
even the poorest and Development Planning
most marginalised in Agency
the formation of legal
regulation Also involved:
Department of Law
and Human Rights, higher
education, NGOs, legislative
body of parliament
Director of Legal Planning
Department of Law and
Human Rights
Also involved:
State Secretaries, Director of
Law and Human Rights,
National Development,
Planning Agency, National
Law Development Agency,
Universities, NGOs,
Department of Home Affairs

National StrategY ON access to justice

97
98
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Overlapping and Harmonisation of • Revision of Presidential decree Inter-regional and Cabinet Secretariat
conflicting coordination national/island/strategic Presidential Decree on BKTRN (replacing intersectoral harmonisation
between sectors and area spatial planning, No. 62/2000 on Presidential Decree No. of land management Also involved:
regions; inadequate and harmonisation National Spatial 62/2000) policies based on clear BKTRN
space for the poor between sectors Coordination principles, criteria and
and adat communities (BKTRN) so as to indicators; participatory
to take advantage conform to Law processes; and suffi cient
of land and natural No. 26/2007 and space for the needs of the
resources acceding to include new poor and adat communities
to their economic and membership for
socio-cultural needs, in BKTRN, including
conformity with principles ministries/agencies
of environmental involved in land
preservation management
(Department of
Forestry, Maritime
and Fisheries,
ESDM, etc.)
• Research current Publication of research on BKTRN
conditions and conditions and problems in
problems of Indonesian spatial planning Also involved:
intersectoral/ inter- Higher education/LIPI, NGOs
regional spatial
planning

National StrategY ON access to justice

 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Carry out public Publication of the results of Director General Regional
consultations on public consultations Planning Department of
planned Government Public Works
Regulation on Criteria
and Processes Also involved:
for the Review of BKTRN, NGOs, Adat
Spatial Planning; organisations, organisations
Involve NGOs active of farmers, fishers, etc,
in environmental, higher education
participatory land
management, adat
and agricultural
issues
• Issue a Government Government Regulation on Director General Regional
Regulation on Criteria Criteria and Processes for Planning, Department of
and Processes for the Review of Spatial Public Works
the Review of Spatial Planning
Planning based on Also involved:
public consultation BKTRN, NGOs, higher
education

National StrategY ON access to justice

99

100
OBSTACLES STRATEGY ACTION PLAN OUTPUTS
• Revise spatial plan
policies in fi ve provinces
with reference to the
Government Regulation
on Criteria and
Processes for the Review
of Spatial Planning.
Revisions should be
based on comprehensive
research involving
representatives of the
poor, adat communities,
and others who make
use of land and natural
resources
National StrategY ON access to justice
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Provincial regulations on Regional Development
the Revision of Provincial Planning Provincial Bodies
Land Use Policies in
five provinces, with Also involved:
intersectoral harmonisation BKTRN, Director General
and adequate space Regional Planning,
allocated for the poor, Department of Public Works,
adat communities, fi shers, NGOs, Adat organisations,
farmers, traditional miners organisations of farmers,
and others fishers, etc, higher education
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Expand public • Public consultations Publication of the results of Department of Home Affairs
participation in spatial to expand the public consultations
planning involvement of Also involved:
the poor and adat BKTRN, NGOs, Adat and
communities in farmers’ organisations, higher
the composition education
of Government
Regulation on
Processes and
Roles of the Public in
Spatial Planning
• Finalisation and Government Regulation on Department of Home Affairs
enactment of Processes and Roles of the
the Government Public in Spatial Planning Also involved:
Regulation on (replacing Government BKTRN, Director General
Processes and Regulation No. 69/1996) Regional Planning,
Roles of the Public Department of Public
in Spatial Planning Works, ministries/institutions
with inclusion of involved in regional planning
the results of public (National Land Agency,
consultation Department of Maritime and
Fisheries Affairs, Department
of Forestry, Department
of Energy and Mineral
Resources, Department of
Agriculture, KLH), NGOs,
higher education

National StrategY ON access to justice

• The formation of Ministry of Public Works Director General Regional
Ministry of Public Regulation on Minimum Planning Department of
Works Regulation Service Standards for Spatial Public Works
on Minimum Service Planning
Standards for Also involved:
Spatial Planning, Higher education, NGOs
involving civil society
organisations and
guaranteeing access
to information and
other services to
the poor and adat
communities

101
 Responsible Party

102
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Expanded public Publication of the results of Director General Regional
consultations with the public consultations Planning Department of
the participation Public Works
of the poor and
adat communities Also involved:
in creating a Director of Regional
draft presidential Planning and Land National
regulation on Spatial Development Planning
Planning for Islands Agency, Department of Home
and Strategic Affairs, NGOs, Adat and
Regions; adopt the farmers’ organisations, higher
results of these public education, provincial
consultations governments
• Guarantee allocation Presidential Regulation on Director General Regional
of space for the Spatial Planning for Islands Planning Department of
poor and adat and Strategic Regions Public Works
communities in guaranteeing Also involved:
the Presidential allocation of space to the Director of Regional
Regulation on poor and adat communities Planning and Land;
Spatial Planning for National Development
Islands and Strategic Planning Agency; Interior
Regions Department; NGOs; Adat
and farmers’ organisations;
higher education; regional
governments

National StrategY ON access to justice


OBSTACLES STRATEGY ACTION PLAN
Overlapping authorities Improve the licensing Compose standards for
in land and natural system for land and the harmonisation of
resource licensing natural resource use licensing procedures that
contains clear principles,
criteria and assessment
indicators
• Develop a system
for recording data
on land and natural
resource license that
contains, among
other variables,
information on laws,
types of resource,
procedures, acreage,
and licensees; to
be carried out in
every ministry /
agency connected
to land and natural
resource use and in
10 provinces; make
these data easily
OUTPUTS
Presidential Regulation on
standards for harmonisation
of licensing in the fi eld of
land and natural resources
Database on land and natural
resource licensing regularly
updated and accessible
at the offi cial websites of
relevant ministries/agencies/
regional governments
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Harmonisation in the Cabinet Secretariat
licensing of land and
natural resources Also involved:
Offi ce of the Coordinating
Minister for the Economy,
BKPM, Department of
Home Affairs, Ministries and
agencies responsible for
licensing in land and natural
resources
Minister for the Economy
Also involved:
Department of Forestry,
ESDM, Department of
Public Works (Director
General Natural Resources),
Department of Maritime and
Fisheries Affairs, National
Land Agency, BKPM,
Department of Law and
Human Rights, Department
of Home Affairds, Department
of Industry, Department of
Finance, provincial, district
and city governments

National StrategY ON access to justice

available to the public
- Create an State Minister for Planning Deputy for Regional
intersectoral working and Development/ National Development and Natural
group including Development Planning Resources, National
representatives Agency Decree on Working Development Planning
of civil society Group for the Analysis of Agency
organisations to Licensing
analyse the impact Also involved:
of licensing on Higher education/LIPI,
environmental NGOs, Adat and farmers’
preservation, poverty organisations, etc.
and confl ict in 10
Publication of licensing Deputy for Regional
provinces
research results Development and Natural

103
Resources, National
Development Planning
Agency
 Responsible Party

104
OBSTACLES STRATEGY ACTION PLAN
• Reorganise licensing
systems of the
central government
and 10 provinces to
conform to the legal
certainty as well as
to the principles of
environmental and
social justice
Many conflictsconflicts Create mechanisms • Map confl ict/potential
remain in the land and for conflict resolution conflict areas and
natural resources tenure through regional ediation research the typology
and strengthen existing of conflicts, including
mechanisms causes and models
for resolution
OUTPUTS
Reorganisation based on the
results of research into the
impact of licensing in the 10
provinces
Publication of the mapping
and research results
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Coordinating Minister for
Economy
Also involved:
Department of Home Affairs,
Ministries/agencies that issue
licenses in the 10 specifi ed
provinces, provincial, district
and city governments
Reduction in conflicts over Deputy for Study and
land and natural resources Management of Confl ict,
National Land Agency,
Director of Confl ict
Management, Department of
Home Affairs

Also involved:
National Commission on
Human Rights, Higher
education/LIPI, NGOs, Adat
and farmers’ organisations
• Support the Programme to resolve Director of Confl ict
initiatives of regional conflicts arising out of Management, Director
governments and civil land and natural resource General National and Political
society in mediating use, managed by regional Unity, Department of Home
conflicts governments and civil society Affairs
organisations

National StrategY ON access to justice

Also involved:
Deputy for Study and
Management of Confl ict,
National Land Agency,
National Commission on
Human Rights, higher
education, NGOs, Adat
and farmers’ organisations;
provincial, district and city
governments
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Training in Training programmes in Provincial governments
human rights and human rights, environmental
environmental and and gender justice for Also involved:
gender justice for community leaders/adat National Commission on
community leaders/ offi cials and regional dispute Human Rights; NGOs; higher
adat officials and mediators education; Adat, farmers’ and
regional dispute fishers’ organisations, etc.
mediators
• Establishment of Establishment of a special Director of Conflict
regional mechanisms unit for reporting disputes at Management, Director
for reporting and the district, sub-district, city General National and Political
mediating conflicts and provincial levels Unity, Department of Home
surrounding land and Affairs
natural resources
Also involved:
Deputy for Study and
Management of Conflict,
National Land Agency, and
National Land Agency
regional offi ces, National
Commission
on Human Rights, higher
education, NGOs, Adat
and farmers’ organisations,
provincial, district and city
governments
• Legal empowerment Legal empowerment and National Commission on

National StrategY ON access to justice

and provision of legal legal aid programmes Human Rights
aid to communities for regional communities
involved in (and involved in land and natural Also involved:
victims of) landuse resource conflicts Department of Law and
and naturalresource Human Rights, regional
conflicts with offices, Legal bureaus of the
corporations provincial, district and city
or government governments, higher
entities holding the education, NGOs,
authorities over Adat and farmers’
land and natural Organisations
resources.

105
 Responsible Party

106
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Many weaknesses Create a legal basis for • Conduct research on Publication of research Presidential decree as Deputy for Research and
remain with dispute designated institutions requirements for and into requirements for, and the legal basis of an Management of Conflict,
resolution mechanisms to resolve persistent models of dispute models of, dispute-resolution institutional dispute- National Land Agency
for land and natural conflicts over land and resolution institutions resolution mechanism for
resources, whether natural resource use land and natural resources Also involved:
enacted by courts or National Development
mediation; these are due Planning Agency, National
to the same imbalances Commission on Human
of power that cause Rights, Director General
confl icts—particularly Human Rights, Department
those resulting from of Law and Human
outdated policies— Rights, Higher education,
and thus the poor, NGOs, Adat and farmers’
marginalised and adat organisations
communities have yet to
attain a sense of justice
• Conduct public Publish the results of public Deputy for Research and
consultations on consultations Management of Conflict,
new institutions for National Land Agency
resolving conflicts
over land and natural Also involved:
resources National Development
Planning Agency, National
Commission on Human
Rights, Director General
Human Rights, Department
of Law and Human Rights,

National StrategY ON access to justice

higher education, NGOs,
Adat and farmers’
organisations

OBSTACLES STRATEGY ACTION PLAN
• Draft presidential
decree designating
an agency to handle
the resolution of land
and natural resource
conflicts
Land reform lacks a Expedite the • Create and ratify a
functioning legal basis development of a solid draft presidential
and coordination legal basis for carrying decree on agrarian
out agrarian reform reform
OUTPUTS
Presidential decree
designating an agency to
handle the resolution of land
and natural resource conflicts
Presidential decree on
agrarian reform
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Deputy for Research and
Management of Conflict,
National Land Agency
Also involved:
National Development
Planning Agency, National
Commission on Human
Rights, Director General
Human Rights, Department
of Law and Human Rights,
higher education, NGOs,
Adat and farmers’
organisations
Create a functioning legal Director of Land reform,
basis for agrarian reform National Land Agency
Also involved:
State Secretaries, Director
of Regional Planning and
Land, National Development
Planning Agency, National
Commission on
Human Rights, higher
education, NGOs, ministries
and agencies involved in land

National StrategY ON access to justice

and natural resources

107
 Responsible Party

108
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Coordinate • Draft a presidential Presidential regulations on Agrarian reform is Director of Land Reform,
implementation of regulation on the the coordination of agrarian conducted in a coordinated National Land Agency
agrarian reform coordination of reform and thorough manner
agrarian reform Also involved:
Cabinet Secretariat, Director
of Regional Planning and
Land National Development
Planning Agency, higher
education, NGOs
• Create an Agrarian Presidential and regional Director of Land reform,
Reform Council to government decrees on National Land Agency
formulate policies agrarian reform bodies and
on reform, and to councils Also involved:
formulate policies Cabinet Secretariat, Director
for the Agrarian of Regional Planning and
Reform Body Land, National Development
that will oversee Planning Agency, National
implementation of Land Agency regional offi
reform at the central ces,
and regional levels provincial, district and city
governments along with
relevant agencies, higher
education, NGOs
• Accurately map the An accurate geographic Integration of international Director of Land Reform,
subjects and objects map of those involved in or human rights principles National Land Agency
of agrarian reform in affected by agrarian reform into national regulations
all provinces programmes recognising and protecting Also involved:

National StrategY ON access to justice

the rights of adat Director of Regional
communities Planning and Land, National
Development Planning
Agency, Director of Regional
Planning, Department of
Public Works, Department of
Agriculture, Department of
Forestry, Offi ce and regional
offi ces of land use, Regional
Development Planning Body
at provincial, district and city
levels, higher education,
NGOs, Adat and farmers’
organisations
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
International legal and Expedite the ratification • Carry out public Publish the results of public Integrate international National Commission on
human rights instruments of ILO Convention 169 consultation on consultation human rights principles Human Rights-Director of
protecting the rights of plans to ratify ILO for the protection of adat Isolated Adat Communities,
adat communities have Convention 169 communities into national Department of Social
not yet been adopted legal regulations Services

Also involved:
Legislative body of
parliament;
Director General Human
Rights, Department of Law
and Human Rights,
provincial, district and city
governments, Adat
organisations, higher
education, NGOs
• Ratify ILO Law enabling ratification of Integration of international Director of Isolated Adat
Convention 169 ILO Convention 169 human rights principles in Communities, Department of
national law recognising Social Services
and protecting adat
communities Also involved:
Legislative body of
Parliament
• Develop a strategy Strategy document on Director of Isolated Adat
for adopting the implementation of the Communities, Department of
principles of ILO principles of ILO Convention Social Services
Convention 169; 169 in Indonesian law

National StrategY ON access to justice

insert provisions Also involved:
into draft regulations National Commission on
on land and natural Human Rights, Director
resources General Human Rights,
Department of Law and
Human Rights, Director
General Village and Social
Empowerment, Department
of Home Affairs, Director
General Village and
Social Empowerment,
Director of Law and
Human Rights, National
Development Planning

109
Agency, Adat organisations,
Higher education, NGOs
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
The development of Formulate further • Renew research on Publish research results Planned development of National Commission on

110
law in reference to adat legal development to the development of land and natural resource Human Rights
communities’ rights guarantee the individual law as it pertains to rights appropriate
over land and natural and communal rights adat communities in to the needs of adat Also involved:
resources is unclear in over land and natural all forms of regulation communities Adat organisations,
current laws and resources of adat related to land and Director of Isolated Adat
regulations communities natural resources Communities, Department
of Social Services, Director
General Protection of Human
Rights, Department of
Law and Human Rights,
NGOs, higher education
• Drafting Justice Justice and Human Rights Director General Protection
and Human Rights Ministry Regulations of Human Rights, Department
Ministry Regulations on the identification, of Law and Human Rights
on the identification, acknowledgment and
acknowledgment and protection of adat Also involved:
protection of adat communities’ rights in Adat organisations;
communities’ rights in national and regional laws Director of Isolated Adat
national and regional and regulations Communities, Department
laws and regulations of Social Services, National
Commission on Human
Rights, NGOs, higher
education
• Expedite the Law on adat communities Director General Protection
formulation of a law of Human Rights, Department
on adat communities of Law and Human Rights
as promised in the
National Legislative Also involved:
Programme 2004- Legislative body of
2009 Parliament, Adat
organisations, Director of

National StrategY ON access to justice

Isolated Adat Communities,
Department of Social
Services, National
Commission on Human
Rights, NGOs, higher
education
• Improve current Regulation of the National National Land Agency
shortcomings in Land Agency to revise
Agriculture Ministry Agriculture Ministry Also involved:
Regulation No. Regulation No. 5/1999 on Director General Protection
5/1999, particularly Resolving Problems of of Human Rights,; Director of
those provisions Customary Adat Rights Isolated Adat Communities,
setting criteria for the Department of Social Affairs;
acknowledgment of National Commission on
adat communities, Human Rights; higher
their land and their education; NGOs; Adat
dispute resolution organisations
mechanisms
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Legal recognition of adat Improve recognition of • Formulate provincial Provincial regulations in 10 Create a legal basis Director General Regional
communities remains adat communities in all regulations in 10 provinces suffering disputes for the recognition of Autonomy, Department of
inadequate in existing regional regulations. provinces suffering over land and natural adat communities at the Home Affairs
regional regulations from disputes over resources involving adat national and local levels
land and natural communities Also involved:
resources involving Provincial governments
adat communities; (governors and assemblies),
include recognition Adat organisations,
of disadvantaged higher education, NGOs
communities and
their rights to
land and natural
resources; formulate
regulations in
accordance with
the principles
of international
human rights and
in fulfilment of
Agriculture Ministry
Regulation 5/1999
No database exists Create a database • Create a guide Guide to identities of adat Situations and conditions Director General for
detailing adat and other on adat and poor to identifying and communities and others of adat communities are Protection of Human Rights,
communities living in communities living in cataloguing adat and making use of land and well documented Department of Law and
areas of natural resource areas of natural resource poor communities natural resources in and Human Rights
exploitation exploitation in 10 making use of land around forests, coasts and
provinces and natural resources mining areas Also involved:

National StrategY ON access to justice

in and around forests, Director of Isolated Adat
coasts and mining Communities, Department of
areas Social Services, Director of
Confl ict, Director General
National and Political
Unity, Department of Home
Affairs, National Commission
on Human Rights, Ministries
and agencies involved in land
and natural resources, higher
education, NGOs, Adat,
farmers’ and fisherfolk’s
organisations, etc.

111
 Responsible Party

112
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Create a database of Easily accessible print Situations and conditions Director General Protection
populations, types, documents and digital of adat communities are of Human Rights,
and legal statuses database on the adat well-documented Department of Law and
already granted to communities of 10 provinces Human Rights
adat communities facing disputes over land and
and others living in natural resources Also involved:
or around forests, Director of Isolated Adat
coastal lands and Communities, Department
mining areas. Create of Social Services, Director of
database for the 10 Confl ict, Director General
provinces suffering National and Political Unity,
the most intense Department of Home Affairs,
disputes over National Commission on
land and natural Human Rights, Statistics
resources. Indonesia, Ministries and
agencies involved in land and
natural resources, Adat
organisations, provincial,
district and city governments;
higher education, NGOs
Minimal acreage devoted Expand the area legally In the long term, increase Recognise traditional Increase in the number of Department of Forestry
to forest, coast, and managed by poor people, the allocation of forest use rights and increase licenses issued by regional
mining areas employed adat communities, fishers land areas to adat licensing of village forest governments for mining Also involved:
by poor people, adat and traditional miners and other regional rights, cultivation rights and by adat communities Provincial, district and city
communities, fishers and communities (adat community forest rights to and traditional miners; Governments,
traditional miners forests, village forests, poor and adat communities facilitate environmentally Adat and forest
people forest plantations, living in and around friendly mining that fosters cultivators’organisations,

National StrategY ON access to justice

and community forests); forest areas; initiate a economic empowerment higher education, NGOs
expand licensing and programme to facilitate forest
cultivation rights to preservation and economic
poor people and adat empowerment
communities in and
around forest areas,
including areas
intended for REDDI
demonstration projects;
facilitate sustainable
forest management in
the aforementioned
areas, and carry out
economic empowerment
programmes for the
communities holding
such rights

OBSTACLES STRATEGY ACTION PLAN
Increase allocation of
coastal lands employed
by adat communities
and traditional fisherfolk,
facilitate continued
management of coastal
areas, and carry out
economic empowerment
programmes for
the holders of
aforementioned licenses
Allocate mining areas
for the use of adat
communities and
traditional miners;
grant licenses and
facilitate environmentally
friendly mining that
is economically
empowering for license
holders
Limited complaint Build and improve on Create complaint
mechanisms in relevant cooperation between units in the ministries/
ministries/agencies complaint units in the agencies and regional
and local governments ministries/agencies, governments with
for the control and regional governments adequate personnel and
management of land and and the office of the facilities and high service
National StrategY ON access to justice
natural resources ombudsman standards
113
OUTPUTS
Increase licensing of coastal
rights to adat communities
and traditional fisherfolk;
facilitate coastal management
that is environmentally
friendly and economically
empowering
Regional regulations on
traditional mining as well as
licenses for adat communities
and traditional miners;
programmes to facilitate
environmentally friendly
mining and community
economic empowerment
Creation of complaint units
in ministries/agencies and
regional governments
connected with land and
natural resource use;
personnel to handle
community complaints
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Department of Maritime and
Fisheries Affairs
Also involved:
Provincial district and city
Governments, Adat and
fisherfolk’s organisations,
higher education, NGOs
Provincial, district and city
governments (through
respective agencies
responsible for mining)
Also involved:
Adat organisations, Higher
education, NGOs
Ministry of Administrative
Reform Director General
Regional Autonomy, Interior
Department governor, regent,
mayor.
Also involved:
Bureau or working group to
handle organisation in all
ministries/agencies and in
the provincial, district and city
governments
 Responsible Party

114
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Issue a presidential Presidential regulation on Cabinet Secretariat
regulation on public public oversight of ministries/
oversight and handling agencies and regional Also involved:
of complaints as part of a government handling of Ministry of Administrative
general effort to improve complaints Reform, Director General
the public service system Regional Autonomy, Interior
Department, higher
education, NGOs
Increase formation of Institutions for handling Access to institutions National Ombudsman
institutions for handling complaints against public handling public complaints
public complaints and services, and new regional for the poor and Also involved:
of regional ombudsmen; ombudsmen; programmes marginalised Provincial governments;
increase cooperation for building capacities of higher education;
among said institutions institutions and of new NGOs
in managing complaints ombudsmen
about public service
in land and natural
resources
Redundancy in land Develop/improve Research implementation Publication of research Creation of an integrated Coordinating Minister for
administration system in integrated land of land administration in evaluating systems of land system of land Economy
and around forest areas administration systems and outside forest areas administration in and outside administration in and
in and around forest forest areas around forest areas Also involved:
areas National Land Agency,
Department of Forestry,
higher education, NGOs
Initiate presidential Presidential regulation Coordinating Minister for the

National StrategY ON access to justice

regulations on integrated on integrated systems of Economy
land administration land administration in and
systems in and outside outside forest areas Also involved:
forest areas National Land Agency,
Department of Forestry
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Poor people, adat Improve access of o Digitise all Digital documentation of all Public access to regulatory Director General Legal
communities, women, poor people, adat documents related legal regulations pertaining to information delivered with Regulation; Department of
and other social groups communities, women to the regulations land and natural resources at speed, ease, and minimal Justice and Human Rights
who make use of land and other social groups of land and natural the national level and that of expense
and natural resources making use of land resources, both in 10 provinces Also involved:
still enjoy limited access and natural resources national government Legal bureau of every
to information about to information about and in 10 provinces ministry/agency and for all
legal regulations, legal regulations, provincial, district and city
international human international human governments,
rights instruments, rights instruments, State Secretaries,
development planning, development planning, Department of
and licensing in the and licensing in the Communication
areas of land and natural areas of land and natural and Information Technology.
resources resources
Simplify the public’s Digital documents of Director General Regional
access to regulations, regulations, development Autonomy, Interior
development planning planning and regional plans, Department,
and regional plans easily accessible to the public Governors/Regents/Mayors
through creation/ through the offi cial websites
maintenance/ of various provinces, districts Also involved:
development of and cities Director General.
offi cial websites for 10 Department of Law and
designated provinces Human Rights,
Bureau for handling legal
matters at the provincial,
district and city levels
Expand availability Dissemination programme for Department of
of all information on information on regulations, Communication

National StrategY ON access to justice

regulations, development development planning, and Information Technology
planning, regional plans regional Liaison offi ces of provincial,
and licensing, to the plans, and licensing, made district and city governments
poor, adat society available to the poor, adat
and marginalised society, women, and others Also involved:
communities; make this using natural resources NGOs,
information available Adat and farmers’
in the media in easily organisations, etc.
comprehensible
language

115
 Responsible Party

116
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Poor people, adat Improve knowledge Issue a presidential Presidential regulation in Greater awareness of Director Justice and Human
communities, women of rights among regulation as the legal connection with strategy and rights among the poor, Rights, National Development
and other marginalised poor people, adat basis for planning implementation of people’s adat communities, Planning Agency
communities remain communities, women and implementation legal empowerment women and other users
unaware of their rights and other communities of people’s legal of land and natural Also involved:
to land and natural making use of land and empowerment resources; ability of these National Law Development
resources natural resources communities to employ law Agency, higher education,
in their struggle for and NGOs
defence of their rights to
Facilitate civic Increase technical, Partnerships with civil Director Justice and Human
land and natural resources
organisations in carrying institutional and financial society programmes for Rights, National Development
out legal empowerment support to programmes empowerment and legal aid Planning Agency
programmes, particularly for legal empowerment Other parties involved:
in areas of land and by developing National Law Development
natural resource use partnerships with civil Agency;
society institutions Interior Department;
Provincial, district and city
governments
higher education;
NGOs
Improve people’s Carry out empowerment Legal empowerment and Department of Forestry Legal
knowledge of the law and legal aid legal aid programmes in Bureau
and their rights in areas programmes through REDD demonstration areas
where conservation partnership with civil Also involved:
projects are supported/ society programmes Deputy for Natural Resources
funded by international participating in and Environment, National
organisations demonstration activities Development Planning
at REDD areas Agency, KLH, Director

National StrategY ON access to justice

General for Protection of
Human Rights, Department
of Law and Human Rights,
higher education, NGOs
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Poor people, adat Improve the participation Issue a presidential Presidential regulation on Director General for
communities, women and of poor people, adat regulation as the legal free, prior and informed Protection of Human Rights,
other users of land and communities, women basis for free, prior consent. Department of Law and
natural resources enjoy and other users of and informed consent Human Rights
limited power in their land and natural of the poor, adat
control and use of land resources in regional communities, and other Also involved:
and natural resources planning and licensing, vulnerable communities Director of Justice and
particularly in areas in implementing land Human Rights, National
where development may and natural resources Development Planning
lead to deterioration development Agency,
in the quality of the National Law Development
environment, economy or Agency,
social life National Commission on
Human Rights,
higher education,
NGOs,
Adat and farmers’
organisations, etc.
Study the effectiveness Publication of research Deputy for Natural Resources
of public participation in results and Environment, National
development planning, Development Planning
local planning, and Agency
allocation of use rights
for land and natural Also involved:
resources Director General PMD
Department of Home Affairs,
Director General Regional

National StrategY ON access to justice

Planning Department of
Public Works,
Ministries and agencies
involved in land and natural
resources,
higher education,
NGOs,
Adat and farmers’
organisations, etc.

117
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/

118
Organise improvements
to old mechanisms
and development of
new mechanisms for
public participation in
development planning,
local planning, and
allocation/licensing
of land and natural
resources
Many policies and Improve the capacity Conduct workshops on
legal practices in land of government and law issues of control/use
and natural resource enforcement bodies and dispute over land
management fail to to understand the and natural resources
provide substantive sociolegal perspective from a human rights and
justice to the poor, adat in their implementation socio-legal perspective
communities, women and and enforcement of land for legal bureau officials,
other users of land and and natural resource ministries/agencies, local
natural resources regulation governments, and the
law enforcement officials
of 10 provinces
Standards for public
participation in development
planning for land and natural
resources
Programme of workshops
for government and law
enforcement offi cials on
issues of land and natural
resource control/use and
conflict
Y1 Y2 Y3 Y4 Y5 Agency)
Deputy for Natural Resources
and Environment.,National
Development Planning
Agency
Also involved:
Director General PMD
Department of Home Affairs,
Director General Regional
Planning Department of
Public Works,
Ministries and agencies
involved in land and natural
resources,
higher education,
NGOs,
Adat, farmers’ and fisherfolk’
Organisations
Improvements in Director General for
government and law Protection
enforcement officials’ of Human Rights,
understanding of land Department of Law and
and natural resource Human Rights
control, use and disputes
from a human rights and Also involved:
sociolegal perspective Deputy for Research and
Management of Conflict,
National Land Agency,
Legal Affairs Bureaus of
all ministries and agencies

National StrategY ON access to justice

involved in land and natural
resources,
provincial, district and city law
bureaus,
National Land Agency
regional
offices,
provincial, district and city
officials involved in land and
natural resources,
National Commission on
Human Rights,
higher education, NGOs
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Many court decisions Improve the courts’ Conduct workshops Training programme for Increase in judges’ Supreme Court
tend toward formal contribution to access for the judges of judges in access to justice understanding of access
rather than substantive to justice for the poor, 10 provinces on with regard to land and to justice for the poor, adat Also involved:
justice in land and adat communities, environmental justice, natural resources communities, women and National Commission on
natural resource cases; women and other users transitional justice, other users of land and Human Rights;
these decisions cause of land and natural gender justice, and natural resources Director General Protection
injury to the poor, adat resources, applying human rights; particularly of Human Rights;
communities, women, law in conformity to the in cases pertaining to KLH;
and other users of land principles of access to land and natural resource higher education;
and natural resources justice and human rights use. NGOs
Conduct certification
Certification programme for Supreme Court
programmes for judges
judges handling land and
handling cases pertaining
environmental cases Also involved:
to environment/natural
National Commission on
resources and land
Human Rights;
from the perspectives of
Director General Protection
human rights, transitional
of Human Rights;
and environmental justice
KLH;
National Land Agency;
higher education;
NGOs
Create a legal Circulate a Supreme Court Supreme Court
basis for paying decision to serve as a guide
damages on land and for compensation in land, Also involved:
environmental/natural environment and human National Commission on
resources, integrating rights cases Human Rights; higher
principles of poor/ education;
marginalised people’s NGOs
rights to restitution for Adat, farmers’ and fisherfolk’s
social, economic and organisations, etc

National StrategY ON access to justice

environmental damage
Increase public Support public Programme for increasing Reduce the number of National Commission on
awareness of court monitoring and the capacity of civil society court decisions that do Human Rights and the
decisions in land and examination of court groups to monitor/examine not provide substantive Judicial Commission
natural resource cases decisions in land and court decisions in cases justice for the poor, adat
natural resource cases involving land and natural communities, women, Also involved:
where substantive resources and other users of land Director General Protection
justice for the poor, adat and natural resources of Human Rights;
communities, women higher education;
NGOs
and other users of land
and natural resources
seems to have been
denied

119
 Responsible Party

120
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Material for teaching Re-orient the teaching of Organise workshops Publish the results of Academic Director, Director
natural resource law agrarian, environmental and consultations on workshops and consultations General Education,
remains insufficient. and adat law in university re-orientation of course to re-orient agrarian law Department of National
Focus on the law departments material in agrarian, courses Education
environment in agrarian, environmental and adat
environmental and adat law Also involved:
law courses is also higher education,
insufficient National Commission on
Human Rights,
NGOs
Research the scope Publish research results Academic Director, Director
and method of agrarian, General Education,
environmental and adat Department of National
law teaching in university Education
law programmes
Also involved:
higher education,
NGOs
Organise a Memorandum of A re-orientation toward Academic Director, Director
memorandum of understanding signed by 10 integrated teaching of General Education,
understanding among law faculties, the National agrarian, environmental Department of National
10 law faculties, the Commission on Human and adat law, advancing a Education
National Commission Rights and relevant NGOs human rights perspective
on Human Rights and and principles of access Also involved:
NGOs working on to justice for the poor and higher education,
agrarian, environmental adat communities National Commission on
Human Rights,

National StrategY ON access to justice

and adat issues so that
NGOs
they may cooperate
on, develop and
integrate the agrarian,
environmental and
adat law curriculum
with principles of
access to justice, legal
empowerment, human
rights and traditional
knowledge
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Prepare a research Multi-dimensional research Academic Director, Director
budget for teachers, into land and natural General Education,
researchers, and resource law Department of National
university students to Education
advance theories and
concepts of land and Also involved:
natural resource law from Higher education/LIPI
various perspectives
Decline in environmental Restore rights of the Map areas that Accurate mapping of Deputy for Natural Resources
quality and natural poor, adat communities have suffered, or environmental destruction and Environment, National
resources due to poor and other users of land are vulnerable to, and the poor and adat Development Planning
maintenance and natural and natural resources, severe environmental communities it impacts Agency
disasters based on principles of degradation and thus
environmental health and endanger the poor, adat Also involved:
social welfare communities, and other Ministries/agencies involved
users of land and natural in land and natural resources;
resources. National Coordinating Agency
for Surveys and Mapping,
provincial, district and city
governments,
National Commission on
Human Rights,
higher education,
NGOs,
Adat and farmers’
organisations, etc.
Improve the capacity of Training programme for law Poor and adat Deputy for Legal Planning,

National StrategY ON access to justice

law enforcement officials enforcement demonstrating
to enforce restitution of urgency of and sharing
environmental damage strategies for environmental
by damaging/polluting rehabilitation, including
parties restitution of damages by
damaging/polluting parties
communities live in a Environment Ministry
healthy environment where
land and natural resources Also involved:
contribute to social welfare Supreme Court;
Public Prosecutors Office,
Police,
Advocates’ Organisations,
National Commission on
Human Rights,
Higher education,
NGOs

121
 Responsible Party

122
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Issue provincial and Regional regulations on Director General Regional
district regulations environmental rehabilitation Autonomy, Interior
for restitution of Department
environmental damages
and pollution Also involved:
Ministry of Environment,
provincial, district and city
governments,
higher education,
NGOs
Allocate funds Budget for city/village Deputy for Natural
for environmental development includes Resources and Environment,
restoration and economic environmental rehabilitation National
empowerment of the in ten provinces Development Planning
poor as an integrated Agency
component of village/city
development Also involved:
Director General Regional
Autonomy and PMD Interior
Department,
KLH,
Director General Budgeting,
Department of Finance,
Provincial, district and city
governments

National StrategY ON access to justice

3.5 Access to Justice for Women
The issue of women has been taken up as a component of access to justice because women are also
considered a disadvantaged group. Many schools of thought in women’s studies have, over the past
decades, agreed that the disadvantaged status of women is not only due to their gender but also to
related problems of race, colonialism, and naturalism (Tong, 1998; Harding, 1987; Moore, 1998;
Shiva & Mies, 1993; Rosaldo, 1974).72 Discrimination, exclusion, and restrictions against women
are exacerbated when women are poor, have disabilities, or come from a minority race, ethnic group
or religion. In the most general terms, discrimination against women is caused by their inequitable
power relationships with the people who surround them; including traditional authorities such as
husbands and relatives, and modern authorities, such as government elites. Women’s powerlessness
excludes them from legal and social justice.

From the pre-independence era up to today (Suryocondro, 1995; Wieringa, 1995), women’s groups
have played a significant role in all phases of Indonesian history. Yet even after sixty-three years of
independence, women’s issues remain critical since the constitutional guarantee of equal rights to all
citizens, regardless of gender, remains misunderstood.

Many women have not yet been able to fulfil their basic rights to live as citizens and dignified human
beings. They are marginalised from all discussions of nationhood, even despite the important roles
they have played in national history. In discussions of state administration, women’s perspectives are
almost entirely absent. This is tied to the matter of nation-building, a project that remains unfinished
even today, and it is reflected in the widespread practice of primordialist politics. In the struggle for
power, the legislative process has become a field of battle in which women’s interests are most often
harmed.

Truly, the role of women in the history of the Indonesian nation cannot be ignored, even if many
now are unable to realise their own fundamental rights to citizenship and human dignity. One of
these fundamental rights is that of fair and impartial treatment before the law. Women’s access to
justice contains two primary challenges: access to state judicial institutions, and access to justice in
the community.

Women’s access to state justice

Women’s access to justice within the framework of the state judiciary is dependent on how women
are understood in the law (Bartlett, 1993; Cain, 1993; Smart, 1989). It is also dependent on how they
are treated by law enforcement officers while their cases are in progress. Poor, uneducated women
find it difficult to learn about their rights to adequate services, legal assistance, and fair treatment
before the law. They are often treated unfairly even once the judicial process has begun (Irianto et al.,
2004; Irianto & Nurcahyo, 2006).

Women’s humanity is often neglected in the formal procedures of the state courts and within
hegemonic, textualist interpretations of the law. The government must therefore evince a strong
political will and obtain the widespread support of civil society to effect basic legal reforms providing
access to justice for women.

Women’s access to community-based justice

Adat institutions in all their varied forms approximate most closely to the notions of justice maintained
by the common people, since they provide people with the capacity to create their own legal rules and

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shape the concept of justice to their own understandings. According to Harsja Bachtiar (1976), the
Unitary Republic of Indonesia is both one large nation and an amalgamation of many smaller, older
nations based on ethnicity and covering the archipelago. Each of these small nations has its own adat
laws. Each, therefore, has its own understanding of legal and social justice.

In traditional communities, various mechanisms exist for the resolution of disputes, and these are often
difficult to distinguish from local political structures and culture. When government justice services
are unable to reach remote areas (whether due to geographic or cultural constraints) customary law,
including the customary court system, becomes the sole legal reference of the people.

Women who wish to obtain justice, whether through dispute resolution mechanisms or through
alternative adat institutions, are often discouraged by patriarchal communities (Tong, 1998; Moore,
1998). What spaces are available to women and women’s access to justice in customary law? The
limited power women enjoy in their relations to family structures and political elites tends to obstruct
access to substantive justice.

Although customary institutions do represent the judicial principles closest to the people, they
tend to create severe problems in women’s access to social welfare.73 The “traditional” community
law maintaining patrilineality74 allows women to inherit wealth neither from their fathers nor their
husbands. In matrilineal communities75 including Minangkabau, although legacy follows the mother’s
line, women nonetheless remain unable to control, possess, and exploit land according to their will;
rather, a mother’s brother, or niniak mamak, becomes custodian of family wealth. The niniak mamak
determines who has the right to manage family assets and how. In the bilateral or parental family
structure76 found on Java, asset division between men and women remains inequitable. The aphorism
sepikulsegendhongan describes a system in which sons receive twice as much as daughters.

Laws, values and cultural concepts have marginalised women, understanding them unequally in
relation to the possession and use of natural resources. Women therefore suffer from limited access
to resources and become vulnerable to poverty, which can lead to violence and exploitation, as
women are forced to work in demeaning and dangerous jobs. Severe poverty also makes women
more vulnerable to trafficking.

One must also consider whether customary laws and judicial mechanisms tend to help women’s
interests or harm them. Do the traditional elites share a gendered perspective on justice? Women
often do not benefit from traditional village meetings, as was found in regional discussions in Bali
and Medan. This is true whether in Lontoleo (Manggarai, East Nusa Tenggara) or in the traditional
maharta forum of the Batak people. The World Bank has stated that things are much the same in West
and Central Java and in West Nusa Tenggara (World Bank, 2008).

Cultural practices harmful to women remain widespread. Examples include the forced marriage of
rape victims to their assailants (saving the woman’s family from social disgrace), underage marriage,
and polygamy.

These gender inequities constitute a context for persistent difficulties in reaching the quota set for
women’s representation in Parliament, as stipulated by the Law on Politics and the Law on General
Elections. Failure to reach quotas in national and regional legislatures indicates the pervasive nature
of inequality.

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3.5.1 The Normative Framework
What is the legal status of women? On the one hand, one may point to a number of laws maintaining
a gender justice perspective. There are court decisions, particularly Supreme Court decisions, that
uphold the principle of justice for women, especially in relation to the family. On the other hand, a
number of laws disregard women’s perspectives altogether and thus cause women harm. Such laws
by their very nature violate the Indonesian Constitution.

Achievements
• A number of policies and legal instruments guarantee justice for women.77 In the years since
reformasi (1998) many legislative instruments have come into force that integrate gendered
perspectives. Social movements, and the women’s movement in particular, have been extremely
active in integrating women’s perspectives into the legislative process.
• A number of Supreme Court decisions have advanced a progressive agenda on women’s rights
to justice. Among these are 1961 and 1983 decisions on inheritance rules for patrilineal societies
(Irianto, 2003), and other criminal and civil cases in the years 1955-2002 (Irianto & Cahyadi,
2008).
• Legal breakthroughs can certainly be found among the many legal findings (rechtsvinding) in which
women have been involved as parties to disputes. According to the Division for Legal Reform of
the National Commission on Violence Against Women (1998-2007), an initiative evolved in the
justice process through Police RPK (Special Service Room), managed by policewomen.78

Challenges
While much has been achieved in the development of a normative framework for the legal advancement
of women, serious challenges remain, including the following: (a) an absence of women’s perspectives
in regional legislative and executive bodies. Many regional regulations therefore cause harm to
women, especially poor women. There are approximately 200 regional regulations (according to the
records of the National Commission on Violence Against Women in the year 2007, cited by the UN
CEDAW Committee, 2007) whose substance severely limits the ability of women to exercise their
basic, cultural, political, and economic rights;79 (b) ignorance of women’s experiences is reflected in
poor legislation. There are still 21 legal instruments harmful to women (Ministry of Law and Human
Rights & UNDP, 2007).80 Some examples are as follows:81
• Law No. 25/2008 on Pornography. From a woman’s perspective, this law provides no protection
to women and children from pornography. This law actually harms women and children as it can
potentially be used to control their bodies and criminalise them, when in fact they need to be
protected from exploitation from trafficking and from the pornography industries.
• In the family domain, several sections of Law No. 1/1974 on Marriage indicate gender bias and
double standards.82
• In the criminal code, rape is several times referred to as a “crime against ethics” (Book 3, Ch.
6 (532-535)), when in fact sexual crimes endanger women and are, therefore, “crimes against
persons.” Sexual crime targeting children, including rape, is classified as obscenity and carries a
lighter penalty than sexual crimes against women (compare lines 285, 286, 287 and 294).
• In the political sphere, Article 6(1) of Law No. 12/2003 on General Elections imposes quotas for
the number of women in Parliament, but it only states that political parties “can,” not that they
“must” or are “required to” provide 30 percent of their seats to women.83 Supreme Court decision
22-24/PLAW NO.-VI/2008 strikes down Article 214 of Law No. 10/2008 on General Elections,

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 based on considerations of “majority opinion.” The decision truly weakens efforts at affirmative
action in women’s parliamentary representation, even though such representation is called for
in the Constitution, in Law No. 12/2003 on General Elections, and even in Law No. 10/2008—
particularly Article 55 on women’s electability.
• Legal instruments are required to guarantee the formation of regional women’s commissions and
forums, and to encourage expansion of those that already exist. Such guarantees are necessary
because the central government cannot handle all of the problems with regard to gender justice
arising from the regions. Regional commissions and forums will investigate regulations in
conflict with the national constitution as well as other laws and regulations. They will also
provide complaints mechanisms, legal services, restitution of rights, advocacy, and monitoring
and evaluation.

Indonesian law is inconsistent in the matter of gender equality. On the one hand there are several
progressive instruments that promise equality and justice for women, while on the other hand there
are many laws that harm women. Clearly, many opportunities exist for providing access to justice for
all, regardless of gender, provided the central government takes advantage of such opportunities in
its formulation of policies and legislation.

3.5.2 Legal Awareness

Law enforcement officials (public prosecutors, judges, police, lawyers), legal scholars, educators,
and the community at large are highly ignorant of legal instruments promising equal justice to men
and women. Even among women, inadequate knowledge of the law is a major problem. The high
illiteracy rate of Indonesian women indicates commensurately high levels of legal illiteracy (World
Bank Study, 2007). Roughly 16% of Indonesian women are illiterate.84 Regional consultations for
this study show that women lack knowledge of the law largely due to the absence of government-
provided legal aid. Regional consultations also indicated low levels of commitment on the part of
regional governments in implementing national policy.

Poor levels of legal knowledge among law enforcement officials demonstrate two facts: First, formal
procedure and literalist interpretations (as opposed to humanist considerations) are the result of a legal
practice uninformed by socio-legal perspectives (Carothers, 2007; Golub, 2003; Irianto et al., 2004;
Irianto & Cahyadi, 2008).85 Many judges posted in the regions are ignorant of regional customary
laws. From a feminist perspective, one must understand social customs in order to understand
women’s positions and gender discrimination.86 Second, the absence of women’s perspectives and
ignorance of women’s experiences affect not only the formation of law but its implementation.

3.5.3 Access to the Appropriate Forum

Generally speaking, civil society has played a far greater role in providing women with services,
counselling and legal aid than has the State (Asia Foundation, 2007). Many of these NGO providers
of legal aid operate almost entirely without the financial assistance of the government. This can be
seen in the success of the Legal Aid Institute, which is spread out over 14 regions of Indonesia, and
the Legal Aid Institute for Women (LBH APIK for example) which is spread out over 12 regions.

126 National StrategY ON access to justice

These organisations function only on the funds they raise. Several women’s crisis centres in the
regions have developed alternative dispute resolution mechanisms by prioritising women’s interests.

Be that as it may, civil society organisations cannot reach everyone. Lack of trained personnel and
funding, combined with wilful neglect by the State, presents major obstacles. For various cultural
reasons, people tend to prefer social and customary forums over the state courts, which are perceived
as having bureaucracies and procedures that are far more complex. There is, therefore, a need for
an alternative legal aid and services forum with participants from government, academia, and civil
society (including adat communities).87

Regional consultations revealed the resistance evinced by many judges and public prosecutors in
handling women’s cases. This confirms the results of prior research, and presents a serious obstacle
to women struggling to attain access to justice (Irianto & Nurchayo, 2006, Irianto & Cahyadi, 2008).

3.5.4 Effective Grievance Handling

Grievances can be addressed much more successfully if they adapt existing cooperative models
– including partnerships between government and community organisations – in the development
of integrated criminal justice systems,88 university-based legal aid and consultation institutes, and
women’s programmes for training paralegals.89 These programmes are dependent upon support from
various stakeholders, including governments, who recognise the importance of these partnerships
and their goals.

3.5.5 Obtaining Satisfactory Remedies

Women face various difficulties in dealing with public service bureaucracies. Primary among these
are lack of information and resources (both material and non-material). Women generally begin by
addressing their problems to the most accessible forum, whether this be their family, neighbours, local
customary authorities, or regional governments. In serious cases however, such as those involving
violence against women and children, community-based forums are inadequate. These cases demand
an institution capable of providing restoration of political, economic, and cultural rights, including
the right to freedom from violence.

Several such bodies already exist, including the Integrated Service Centres for Women and Children’s
Empowerment (P2TP2A), and Women’s Crisis Centres (WCC) founded by various community
organisations and NGOs in conjunction with hospitals and police (particularly the Special Service
Room). Among these are Rumah Kita, Mitra Perempuan, Kepak Perempuan and Puan Amal Hayati.
Pulih, on the other hand, is an institution founded by academic psychologists and NGO activists,
specialising in the treatment of trauma. All of these organisations require funds and competent staff.

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3.5.6 Issues Relating to Poor and Marginalised
Women
Women, the poor, and the marginalised suffer from a relative lack of power in their relationships with
decision-making authorities, whether in the family, community, or government. Women’s inadequate
access to economic, educational, and health opportunities amply demonstrates the obstacles women
have faced in their struggle for access to justice in the spheres of politics, economics, and law.
Women experience violence in both the private and public spheres, including state violence (National
Commission on Violence Against Women, 2007). The following table demonstrates a continuing
increase in the numbers of women reporting cases of violence:

Table 7
Number of Cases of Violence against Women (KTP)
Year Year Year Year Year Year Year
2001 2002 2003 2004 2005 2006 2007
3.169 5.163 7.787 14.020 20.391 34,665 25.522
Source: National Commission on Women, Notes from 2008: Ten Years of Reform: Advances and
Setbacks in the Struggle against Gender-Based Violence and Discrimination

The phenomenon of violence against women demonstrates how poverty results from an inability to
access justice (CLEP, 2008). The increase in reported cases of violence against women underscores
how poor women are excluded from state institutions and social organisations that should guarantee
the restoration of their rights.

3.5.7 National Strategy on Access to Justice

Relating to Women
Women’s access to justice and law must be widened and deepened through implementation of the
following three strategies: First, reform the regional and national legal frameworks along with
customary and traditional norms toward the recognition and protection of women’s rights to justice.
Second, improve relevant institutions, including formal courts and community forums. Third, educate
and empower people with regard to the law. These three strategies are described in greater detail
below.

(1) Legal reform establishing a gendered perspective in law

The Indonesian nation-state’s founding principles in the Constitution, Pancasila (Five Principles),
and Bhinneka Tunggal Ika (Unity in Diversity) provide a solid basis for legal reform. Creating a
legal system appropriate to the needs and aspirations of women will require (a) re-assessment and
withdrawal of regulations and traditional norms degrading to women; (b) women’s involvement in
legislative and budget processes; (c) formation of institutions and mechanisms for monitoring and
evaluating policy at national and regional levels; and (d) establishment of women’s commissions or
forums in the regions that can handle problems the government and other institutions have proven
unable to resolve.

128 National StrategY ON access to justice

(2) Reform of judicial institutions, law enforcement agencies and development programmes
This reform will be accomplished through: (a) establishment of an “Integrated Criminal Justice
System for Settlement of Cases of Violence Against Women;”90 (b) training of law enforcement
officials to possess greater knowledge of and interest in women’s issues (also increase the number
of female judges and law enforcement officials); (c) introduction of certification programmes for
law enforcement officials handling women’s cases; (d) establishment of minimum service standards
for women who are victims of violence; (e) establishment of complaints mechanisms in the regions
specialising in women’s cases (also expand the role and improve functionality of the regional
ombudsmen); (f) introduction of a policy of posting judges in areas where they understand customary
law; (g) improvement of the military judicial system’s handling of women’s human rights cases,
particularly in conflict areas. (h) introduction of a policy of gendered programme evaluation, and re-
assessment of development programmes harmful to women.

(3) Improving legal awareness and community legal empowerment

This reform will be accomplished through: (a) integrating a gendered perspective into university legal
education; (b) expanding community legal knowledge; (c) encouraging legal empowerment through
the partnership of various stakeholders; (d) establishing accessible centres for legal information and
improving the role of media in promoting women’s rights.

(4) Empowerment of community-based institutions for the provision of justice

This reform will be accomplished through: (a) provision of legal services for women by formal
and informal means (including those provided by NGOs and universities); (b) issuance of laws and
regulations requiring free legal aid be made available to women; (c) development of community-
based paralegal programmes; (d) empowerment of alternative forums for dispute resolution, including
customary and religious institutions, and (e) training all involved to become more responsive to
women’s perspectives.

(5) Strengthening institutions for recovery and restitution

The facts show that women and the poor often visit restorative institutions and women’s crisis centres
(Integrated Crisis Centre/Integrated Service Centre) first when seeking justice. These institutions,
however, face severe difficulties obtaining both funding and personnel. They should therefore receive
public support allowing them to continue their activities as a first line of support for women and the
poor. Establishment of regional women’s commissions and forums to handle restorative functions
should be made a priority.

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 3.5.8 ACTION PLAN ON ACCESS TO JUSTICE FOR WOMEN

130
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
1. Legal reform • Review and revoke • A study of rules and Availability of legislation Responsible Parties:
(substance) in existing laws and regulations that with a gender perspective • Department of Law and
promoting laws with regulations that disadvantage women Human Rights
a gender perspective disadvantage • National Development
women Planning Agency
• Legal Bureau of local
governments
• Modified / revoke laws
and regulations that are
disadvantage women
based on the results of
statutory assessment
• Implementation of • Gender budgeting at Regional budgets Responsible Parties:
gender budgeting the local level that reflect gender • Ministry of Women's
(Decree of the responsiveness Empowerment
Minister of Home • National Development
Affairs No. 13/2003, Planning Agency
chapter17) • Ministry of Home Affairs
• National Development
Planning Agency
• Governor / Regent /
Mayor

National StrategY ON access to justice

• Establishment / • New commission/ Responsible Parties:
revitalisation of a forum/regional P2TP2A • Governor / Regent /
commission / forum established/revitalised Mayor
or Regional P2TP2A
(Integrated Service
Centre for Women
and Children’s
Empowerment)
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
2. Institutional • Encouraging the • Establishment of the Integrated criminal justice Responsible Parties:
reform of law establishment of “Integrated Criminal system of special case • Supreme Court
enforcement and “Integrated Criminal Justice System on Case handling of violence • National Development
legal development Justice System on Handling of Violence against women established Planning Agency;
programme Case Handling of Against Women” • Ministry of Women's
Violence Against Empowerment
Women"
• Increasing the • Providing facilitation to Increased number
number of women increase the number of women judges,
judges, prosecutors of women judges, prosecutors and police
and women both prosecutors and police at the national and local
at the national and at the national and local levels
local levels levels
• Implementation • Certification programme Availability of certified Responsible Parties:
of gender for law enforcement gender equality • Supreme Court
perspectives officers who handle perspective law • Ministry of Women's
certification cases involving women enforcement officers Empowerment
programme for law
enforcement officers
who handle cases
involving women
• The development • Minimum Service Availibility of Minimum Responsible Parties:
of Minimum Service Standards for women Service Standards to • Supreme Court
Standards for victims of violence fulfill the rights of • Ministry of Women's
women victims available at both national women victims of Empowerment

National StrategY ON access to justice

of violence at and regional levels violence at national and • Governors
both national and regional levels, along with • Offices of Women's
regional levels monitoring and evaluation Empowerment

131
 Responsible Party

132
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Assignment of • Make efforts to assign Availability of judges with Responsible Parties:
women to roles women judges based familiarity in women roles • Governor / Regent /
as judges in local on qualification in local customary law Mayor
customary and law
cases

3. Increased legal • Assignment Availability of gender

awareness and of appropriate focal point s in the local
legal empowerment gender focal points, area
of the community and review of
development
programmes that
disadvantage
women
• Engendering the • Make available activities The availability of gender Responsible Parties:
curriculum of higher that enable engendering perspectives curriculum • Directorate General
education law the curriculum of higher in higher education law of Education, Ministry
studies education law studies studies of Higher Education/
University
• Ministry of Women's
Empowerment
• National Development
Planning Agency
• Empowerment • Undertaking partnership Availibility of partnership Responsible Parties:

National StrategY ON access to justice

partnerships in improving women's to enhance the legal • Ministry of Women's
among various legal consciousness awareness of women Empowerment
parties • Supreme Court
in improving • Attorney General
legal awareness • Mass Media
ofwomen, in
particular increasing
the role of mass
media
3.6 Access to Justice for Children
Access to justice has long been recognised as an important component of the national development
agenda. Development experts understand the importance of justice and a properly functioning judicial
system both in alleviating poverty and in promoting peace, security and human rights. Access to
justice is also an important component to achieving the Millennium Development Goals, fulfilling
the commitments of the Millennium Declaration and upholding human rights.

Since the 1980s, a great deal of attention has been paid to the treatment of child perpetrators, both
in the judicial system and in the international norms and standards pertaining to children’s courts.
Only more recently have the issues of children as victims and witnesses become a matter of debate.
Nonetheless, children have yet to become the target of legal reform initiatives and programmes for
access to justice. Efforts at imposing standards on children’s courts are often perceived as distinct
from the wider legal reform effort. The children’s judicial system initiative tends toward a vertical
approach that understands child perpetrators, victims, and witnesses as entirely distinct. In fact,
these three roles are inseparable, and it is the same systems, structures, and public servants that bear
responsibility for them all.

The integration of children’s issues within wider initiatives for legal and judicial reform is absolutely
essential if these latter are to prove successful. Children must have access to a judicial system that
is fair, transparent, and sensitive to their rights. Furthermore, children’s courts must provide an
effective venue for the piloting of innovative legal and judicial reforms, since these courts handle
issues relatively less controversial than those of adults.

The criminal justice system in Indonesia, as in many countries, is a punitive one. Its focus rests on the
punishment of criminals, rather than on the various needs of victims, perpetrators, and the community
at large. Restorative justice provides a more satisfying approach by aiming at a sustainable restoration
of relations between victims, perpetrators, and the wider community.

Restorative justice favours solutions that improve people’s situations, reconcile conflicting parties,
and restore community harmony. While restorative justice may be appropriate for people of all ages,
it is particularly useful in the case of children, since it allows them to learn and make better choices
as they grow. Restorative justice helps children avoid repetition of past mistakes.

Identifying challenges and opportunities

There have already been major advances to protect children in their encounters with the law;
this is particularly true in the fields of law and policy. The Law on Child Protection has already
been amended to become the more comprehensive Law on the Children’s Judicial System. The
government has issued important laws and regulations and has also signed on to various international
conventions. NGOs and other organizations, both national and international, have been active in
training law enforcement officials on matters of child protection. Even sectoral policies have begun
to adopt designated structures and mechanisms for the protection of children’s interests. So far,
policy and regulatory progress is not always followed up with implementation, and there remains
a need for further-reaching interventions with regard to human resources to assure that relevant
officials have the skills and sensitivities required of their positions. Monitoring should ensure that
practice conforms to the principles of child protection and that best practices are taken up by others.

National StrategY ON access to justice 133

The challenges and opportunities faced in fulfilling children’s rights to justice fall within three broad
categories: (1) policy issues (budget, law, and regulation); (2) judicial issues (legal assistance and
social services); and (3) consciousness (sensitivity, knowledge, attitudes, and community practices).
These issues that can be grouped as follows:

The normative legal framework poses the following challenges to children’s access to justice: (i)
laws and regulations on children are inconsistent, both horizontally and vertically. In many areas
where children require special consideration, regulations do not address their concerns specifically.
Yet even when they do, they may well conflict with principles of children’s rights and child
protection; (ii) children have no access to the processes that determine policies affecting them. There
is a perception that only adults enjoy the rights and authority to act on their behalf.

The effort to effectively restore rights is constrained by, among other things: (iii) limited human
resources, (as well as limited knowledge, sensitivity and capacities among existing personnel for the
protection of children and their rights). Those who do work in children’s services often experience a
double work burden, providing services to children and negotiating bureaucracies that are ignorant
of and insensitive to children’s needs; (iv) divergent perceptions among law enforcement agencies
as to the appropriate role of NGOs and other civic organisations. Many law enforcement officials
understand the role of NGOs and civic organisations as providing free legal aid and support.
Meanwhile, government funding (regional budgets in particular) is directed more toward legal
advice; (v) mechanisms of child protection and rights restoration remain unclear. Since Indonesia has
no designated judicial system for children, all of this is simply handled by the judicial system at large.

In relation to legal awareness, obstacles include: (vi) limited legal awareness among children,
parents and communities as to children’s rights and child protection due to a general lack of legal
education; and (vii) community leaders responsible for informal resolutions often lack sufficient
understanding of children’s rights and child protection. This can become harmful when children are
punished with degrading social sanctions.

3.6.1 Defining Justice for Children, and Children in

Contact with the Law
The judicial system should ensure that all children are protected and served by the law and justice
systems. Whether facing the law as victims, witnesses, suspects, or convicts, children must be treated
according to the norms, principles, and standards of children’s rights. All such children will hereafter
be referred to by the term “children in contact with the law.”

Whether in the contexts of criminal or civil law, the aim of providing access to justice for children
is to effect the child’s rehabilitation. Children will only have access to justice if they, too, are legally
empowered. Every child should have adequate knowledge and understanding of his rights under law,
as should every community, so that children may press for the fulfilment of those rights even in their
immediate environments.

In this section, the term “judicial system” is used to refer to both (1) the formal justice system, i.e.,
government law enforcement and judicial institutions, police, public prosecutors, criminal and civil
courts, advocates, correctional facilities, and ministries responsible for the management, monitoring,
and implementation of political, legal, and security policies; and (2) informal justice systems, i.e.,

134 National StrategY ON access to justice

customary, religious, and other mechanisms for resolving matters at the community level.

Access to justice for children also involves the related entities of professional associations, Parliament,
independent commissions, universities, educational and training institutions, assessment centres,
human rights monitoring agencies, NGOs, legal aid volunteers, and informal authorities. The social
welfare system provides a constellation of structures for guaranteeing protection and social services
to children. All play important roles in the achievement of justice for children.

3.6.2 Principles of Justice for Children

Access to justice for all, including children, is in the spirit of universal human rights. All interventions
must meet the full standard of children’s rights, from policy formation right up to the provision of
services to children. Access to justice for children must rest upon ten fundamental principles: (a)
every child has the right to the primary consideration of his/her best interests; (b) every child has a
right to be treated fairly and equally, free from all forms of discrimination; (c) every child has a right
to express his/her views and to have his/her opinions heard; (d) every child has a right to protection
from violence, abuse and exploitation; (e) every child has a right to be treated with dignity and care;
(g) the rule of law must be respected; (g) programmes to prevent juvenile delinquency, violence,
abuse, and exploitation should represent the primary components of a judicial policy for children;
(h) deprivation of liberty in any form should only serve as a last resort and should be maintained
for the shortest possible length of time; (i) special attention should be given to the most vulnerable
children, including but not limited to child victims of armed conflicts, unaccompanied children,
disabled children, minority and migrant children, and children infected by HIV/AIDS; (j) gender-
sensitive approaches should be maintained at every step. The particular forms of stigmatisation and
vulnerability suffered by girls should be recognised.

3.6.3 Justice for Children and Eradicating Poverty

Poor children are the most vulnerable in dealing with the legal and judicial systems, whether as
victims, witnesses, or accused. They are most likely to suffer violations of their rights as well as
violence, abuse, and exploitation. At the same time, children from poor and marginalised backgrounds
face greater difficulties and constraints in achieving rehabilitation, resulting in a deepening poverty
trap. The failure of the Indonesian State to provide access to justice for all – including children
– obstructs development, as foreign capital flees to countries with better functioning legal systems.

Legal empowerment, access to justice, and a well-functioning judiciary are powerful tools for
alleviating poverty. An effective judicial system accessible to all without discrimination is a crucial
element in upholding people’s rights and protecting them from exclusion and neglect. Such a system
must also be accessible to children, especially poor children, so that they too can achieve legal
empowerment. This will impact every element of a child’s life, providing him/her with a more
positive self-image and the confidence to protect him/herself.

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3.6.4 Strategy on Access to Justice for Children
As noted above, one significant obstacle in achieving justice for children is that children’s issues
tend to be regarded as distinct from larger movements for legal reform and empowerment. Through
the strategy outlined below, children’s issues should be treated as an integral part of a national legal
reform. The priorities of such a strategy are as follows:

(1) Integrate, develop, test, and improve upon the protection of children’s rights before the
law in a manner that emphasises restorative and alternative justice
 Develop institutional capacity for judicial service providers (police, public prosecutors, judges,
advocates, corrections officers, paralegals, facilitators, legislators, and other government offi
cials). Integrate children’s issues into training and education materials in the pre-service or in-
service phases of formal and informal education;
 Strengthen independent human rights monitors by ensuring they prioritise places of child detention
and imprisonment;
 Prepare state budgets that guarantee adequate implementation of programmes for children’s
access to justice.

(2) Change the paradigm of judicial and legal empowerment

 Emphasise the subjects of social justice and gender sensitivity in a system that prioritises
restorative and alternative justice;
 Audit legislation (including legislation to authorise auditing) of laws, regulations, and provincial
regulations dealing with children; revise, harmonise, and formulate new laws wherever necessary;
 Equip the planning and budgeting processes with appropriate instruments for cost-benefit analysis,
prioritising the protection of children;
 Strengthen monitoring and evaluation mechanisms for the implementation of laws and regulations
pertaining to children; ensure transparency in budgeting.

(3) Strengthen legal empowerment along with legal, judicial, and social welfare systems to
ensure respect for and fulfilment of the rights of children
 Develop the capacities of legal service providers so that they are able to prevent violence,
misconduct, and exploitation of children. Also equip them with the skills to detect, investigate,
and charge the perpetrators of violence, misconduct, and exploitation toward children;
 Develop a knowledge base on children in contact with the law. Improve information systems and
include children in contact with the law in the activities of national research agencies. Obtain
data on the costs of criminal procedures and imprisonment versus community-based resolution.
Examine informal justice mechanisms for children and whether they operate in accord with
children’s rights and gender equality;
 Spread awareness about the rights of children in contact with the law, whether as victims,
witnesses, or perpetrators. Increase awareness of how the judicial system impacts children. Focus
on girls and children with special needs, including disabled, poor, and marginalised children.
Deliver a message that there will be zero tolerance for violence against children in contact with
the law, and that the toughest punitive measures are counter-productive when applied against
children;

136 National StrategY ON access to justice

 Promote alternative restorative approaches to justice that do not depend upon depriving children
of their liberty. Incarceration should always serve as a last resort, and it should be imposed only
for the shortest possible period of time. Priority should instead be given to restorative approaches
to justice that empower children. Ideally, children’s cases should be diverted from the formal
justice system into a community-based system. Diversions should be monitored to ensure that
they conform to the principles of accountability, transparency, and children’s rights;
 Encourage the capacity of the social welfare sector and greater coordination between justice and
social welfare. The welfare sector has an important role to play in (1) preventing children from
coming before the law by offering support to vulnerable families; (2) facilitating community
research of the judicial process so that results can inform law enforcement officers’ treatment of
children; (3) diversion programmes for children that eschew detainment in favour of empowerment,
supervision, and guidance; (4) providing psychosocial assistance to children who have become
victims of violence, misconduct, and exploitation; and (5) facilitating children’s reintegration into
their homes and communities;
 Support education that informs the public of children’s rights; provide legal knowledge to all
children (including the vulnerable), families, and communities. Inform children in contact with
the law of their rights, the process before them, the choices they face, and the consequences they
have. Education for legal empowerment should be integrated in formal and informal educational
curricula;
 Support the development of community-based legal facilitation and paralegal services for children.
(1) Develop advocate networks along with umbrella organisations for lawyers and paralegals,
including women. Paralegals should serve to guarantee the availability of basic legal information
to children, provide advice, represent children in administrative processes (at a minimum), assist
in litigation, and promote knowledge of the law as well as human rights. Since they are members
of the child’s own community, paralegals are generally more accessible and less frightening. (2)
Support community-level non-government institutions providing legal information, law clinics,
and psychosocial counselling;
 Support community organisations in facilitating access to informal justice mechanisms for
children. Support these organisations in (1) publicising human rights-based informal justice
mechanisms that are sensitive to children’s needs; (2) training legal service providers as to the
needs of children; and (3) monitoring informal justice mechanisms, reporting violations, and
assisting children who have suffered from the violations of these mechanisms.

National StrategY ON access to justice 137

 3.6.5 ACTION PLAN ON ACCESS TO JUSTICE FOR CHILDREN

138
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
1. The legal and 1.1. Improve elementary 1.1.1. Develop and Functioning system for Availability of data and • Directorate National
regulatory knowledge on the implement a system noting, gathering data, information on children that Security and Order,
apparatus does rights of children, for noting, gathering on children in the service can be used as evidence Detective and Crime
not treat children emphasising the data, and managing provision units of the police, and as a basis for shaping Agency (Bareskrim),
satisfactorily; inter-connectedness information on children in prosecutors, courts and and improving policy and Indonesian National
overlaps and of human rights, the courts’ child service correctional institutions and legal regulations on child Police
contradictions women’s rights and units and in the hospitals’ in the integrated service protection • Indonesian Police Centre
(both horizontal children’s rights integrated service units provision units for Medical and Health
and vertical) are Service which oversees
common, and many the integrated service
legal instruments are centre at Bhayangkara
inappropriate to the Hospital
principles of child • Office of the Deputy
protection and the for Child Welfare and
rights of children Protection, Ministry of
Women’s Empowerment

1.1.2. Develop a system Introduction of child • Directorate for

for periodic research
into children at risk
and children facing
the law; employ the
indicators, instruments
and methodology, of the
national research agenda
protection indicators into the Demography, Women’s
National Socio-Economic Empowerment and Child
Survey and the National Protection, National
Health Survey Development Planning
Agency
• Office of the Deputy for
Child Protection and

National StrategY ON access to justice

and census Welfare, KPP
• National Bureau of
Statistics
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
1.2. Strengthen the 1.2.1. Organise, test Create and adopt instruments Guarantee, protect and • Directorate for
legislative, planning and create a legal for the harmonisation strengthen the rights Harmonisation,
and budgeting basis for instruments and synchronisation of of children through the Director General Legal
processes regarding of harmonising and legal regulations related preparation of policies and Regulation, Department
children from the synchronising legal to children, based on legal regulations, framed, of Law and Human
perspective of regulations that deal fundamental human rights, harmonised and adopted Rights
fundamental human with children from children’s rights and gender from a process based • Director General Human
rights, children’s the perspective of sensitivity on research and cost Rights, Department of
rights, and gender fundamental human benefi t analysis, from a Law and Human Rights
sensitivity rights, children’s rights, perspective of fundamental • Directorate for Law and
and gender sensitivity human rights, the rights Human Rights, National
of children and gender Development Planning
sensitivity Agency

1.2.2. Apply the Harmonise legal regulations • Directorate for

instruments for that deal with children, Harmonisation,
regulatory harmonisation beginning with laws, Director General Legal
and synchronisation national and regional Regulation, Department
developed above to regulation of Law and Human
create a law that can deal Rights
with children at every • Director General Human
level Rights, Department of
Law and Human Rights
• Directorate for Law and
Human Rights, National
Development Planning
Agency

National StrategY ON access to justice

1.2.3. Organise, test Create and adopt legal • Directorate for Planning,
and create the legal instruments for analysing Director General Legal
basis for impact and costs and impacts; Regulation Department of
cost analysis, and develop instruments for Law and Human Rights
instruments for analysing analysing the estimated • Director General Human
the consequence to the budgetary consequences Rights, Department of
national budget in the of laws and regulations Law and Human Rights
composition of legal regarding children from • Directorate for Law and
regulations for children, Human Rights, National
the perspective of human
from the perspective of Development Planning
rights, the rights of children,
human rights, the rights Agency
and gender sensitivity
of children, and gender
sensitivity

139

140
OBSTACLES
No mechanism for 2.1 Support education
children to voice their
opinions on policy and
regulations
National StrategY ON access to justice
Responsible Party
TIME
(Organisation/
STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
1.2.4. Apply cost/benefit Targeted policies and legal • Directorate for Planning,
and budgetary analysis regulations for children based Director General Legal
as discussed above on cost/benefit and budgetary Regulation Department of
to shape laws taking analyses Law and Human Rights
account of children at • Director General Human
every level Rights, Department of
Law and Human Rights
• Directorate for Law and
Human Rights, National
Development Planning
Agency
2.1.1. Create and test Educational and Improved child protection • Office of the Deputy
on the rights of educational material participatory training due to increased for Child Welfare and
children; support on children’s rights; material on the rights of and awareness of children’s Protection, Ministry of
legal awareness implement participatory justice for children, aimed at rights; focused on, but not Women’s Empowerment
for all children, trainings on children’s children and the community exclusive to, children with • Directorate for
families, and society rights aimed at children at large special needs: girls, the Demography, Women’s
at large; particularly and the wider community disabled, and children from Empowerment and Child
in vulnerable marginalised communities. Protection, National
communities Development Planning
Agency
• Directorate for Informal
Education, Department of
National Education
2.1.2. Educational and Integration of education
participatory training and participatory training
material on justice material on justice and
and children’s rights children’s rights into
is integrated into programmes for legal
programmes for legal empowerment, the National
empowerment, the Empowerment Programme
National Empowerment (National Programme for
Programme (National
Community Empowerment)
Programme
and regional Children’s
for Community
Forums
Empowerment) and local
Children’s Forums
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
2.2. Support the 2.2.1. Integrate Guarantees of access and Guarantee and protection • Directorate for Planning,
creation of forums guaranteed access and mechanisms for children to of children’s rights to Director General Legal
where children mechanisms for children contribute their opinions in voice opinions; creation Regulation Department of
can speak freely to contribute their the further development of of discussion forums by Law and Human Rights
and constructively opinions in the further law, regulation and policy which children’s opinions • Director General Human
about justice and development of law, are written into the revision are heard in the formation Rights, Department of
the law, and where regulation and policy into of Law No. 10/2004; legal of policy Law and Human Rights
they have access the revision of Law No. regulation on mechanisms of • Directorate for Law and
to mechanisms for 10/2004 the process above Human Rights, National
contributing their Development Planning
opinions in the Agency
further development
of law, regulation and
policy
2.2.2. Provide legal and Prepare a legal and • Office of the Deputy
fi nancial guarantees for budgetary basis for the for Child Welfare and
the establishment and establishment of children’s Protection, Ministry of
continued operation forums whose memberships Women’s Empowerment
of children’s forums; include children from • Directorate for
include children from the most vulnerable and Demography, Women’s
the most vulnerable marginalised communities Empowerment and Child
and marginalised Protection, National
communities Development Planning
Agency
3. Institutions and 3.1. Develop institutional 3.1.1. Test the individual Study of individual and Children are served and • Police: Office of
individuals charged capacities in the field and institutional needs institutional capacities of protected by a competent Personnel Development,
with providing of justice provision for capacity building the police, public attorneys, judicial service sector DSESDM, Indonesian
justice and social (among police, in the police, public courts, correctional able to (1) prevent National Police
welfare services public attorneys, prosecutors’ offices, facilities, and social welfare violence, exploitation and • Public prosecutors,
lack capacity, both judges, advocates, courts, correctional sector with regard to child mistreatment of children; Deputy Attorney General
qualitatively and government officials, facilities, and social (2) detect, investigate, and for development to

National StrategY ON access to justice

protection
quantitatively public counsellors, welfare sector with legally pursue those who oversee Centre for
and social workers) regard to child protection act violently or otherwise Education and Training
in maintaining and in violation of a child, and • Courts: Deputy Director
fulfilling the rights of (3) to uphold a system of to oversee Centre for
children and child restorative justice, and find Education and Training
protection alternatives to children’s • Corrections: Directorate
detainment Community Capacity
Building, Director
General for Socialisation,
Department of Law and
Human Rights
• Social Welfare Sector:
Directorate for Child
Service and Protection,

141
Department of Social
Services and Centre for
Education and Training

142
OBSTACLES STRATEGY ACTION PLAN
3.1.2. Create a strategy
for developing capacity
in child protection among
police, public rosecutors,
courts, correctional
facilities, and in the social
welfare sector, and based
on the results of needs
testing,
3.2. Strengthen 3.2.1. Accelerate
independent efforts to ratify the
National StrategY ON access to justice
institutions for human optional protocol of the
rights monitoring Convention Against
by guaranteeing Torture guaranteeing
oversight of the independent oversight
children’s justice of prisons and other
system and places where children are
guaranteeing detained
information systems
at the community
level.
OUTPUTS
Written strategy for capacity
development in child
protection among police,
public prosecutors, courts,
correctional facilities, and in
the social welfare sector
Ratification of the optional
protocol of the Convention
Against Torture to guarantee
independent oversight of
prisons and other places
where children are detained
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Police: Office of
Personnel Development
DSESDM Indonesian
National Police
• Public prosecutors: JAM
Deputy Attorney General
for Internal Development
overseeing Centre for
Education and Training
• Courts: Deputy Director
to oversee Centre for
Education and Training
• Department of
Corrections: Directorate
for Community
• Development, Director
General for Socialization,
Department of Law and
Human Rights
• Social Welfare Sector:
Directorate for Child
Service and Protection,
Department of Social
Services Centre for
Education and Training
Guarantee and monitor • Directorate for Planning,
the protection of rights for Director General Legal
children currently involved Regulation Department of
in the legal system, Law and Human Rights
including those in places • Director General Human
of detention, e.g. prison, Rights, Department of
immigration and workers Law and Human Rights
relocation facilities, etc; • Directorate for Law and
facilitate monitoring Human Rights, National
through community-level Development Planning
information systems Agency

OBSTACLES STRATEGY ACTION PLAN
3.2.2. Conduct capacity
building workshops for
independent human
rights monitoring
organisations on
children’s rights and child
protection
3.3. Support and build 3.3.1. Carry out a
on the capacities of study/assessment
civic organisations of the knowledge,
facilitating children’s attitudes and practices
access to informal connected to violence,
justice systems fairly mistreatment and
and in accordance exploitation of children;
with human rights, include such topics as
children’s rights and children’s misbehaviour
sensitivity to gender and community-based
prevention methods
National StrategY ON access to justice
143
OUTPUTS
Independent human rights
monitoring institutions receive
training on children’s rights
and child protection
Preparation of data on
violence, mistreatment and
exploitation of children,
including such topics as
children’s misbehaviour and
community-based prevention
methods that may be further
developed
Responsible Party
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Director General Human
Rights, Department of
Law and Human Rights
• National Commission for
Human Rights
Children are protected • Regional governments
by mechanisms for • University and private
the prevention of research and study
violence and by civic centres
organisations, experts,
and community leaders
able to facilitate children’s
access to informal
justice mechanisms, as
well as oversee these
mechanisms and report on
any rights violations
 Responsible Party

144
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
4. Indonesia does not 4.1. Promote and 4.1.1. Pass the Law on Children’s Children accused of • Directorate for Planning,
have a designated develop a system Accelerate the formation Courts which raises the age crimes face a system Director General Legal
juvenile justice of restorative of a Law on Children’s of criminal responsibility that is creative and Regulation, Department
system; legal justice that favours Courts (as revision of from 8 to 12, guarantees restorative, emphasising of Law and Human
proceedings are alternatives to Law No. 3/1997) and diversion and restorative alternatives to detainment Rights
therefore taken up detainment with revision to the Law on justice mechanisms, and imprisonment, and • Director General Human
in the general justice child-friendly Correctional Facilities prioritises efforts to prevent prioritising re-integration; Rights, Department of
system mechanism of institutionalisation of accused child victims and witnesses Law and Human Rights
children, guarantees encounter a system that • Directorate for Law and
protection and
procedures that are child- is gender-sensitive and Human Rights, National
gender sensitivity
friendly and gender-sensitive, child-friendly Development Planning
for child victims and
and guarantees the rights of Agency
witnesses child victims and witnesses.

Pass a law on correctional

systems that protects
children in detention and
in prison by prioritising
their growth and education
along with programmes
to aid in rehabilitation and
minimisation of social stigma
4.1.2. Build and At least one special unit • Directorate for Justice
strengthen designated for women and children at and Human Rights,
structures for providing every District Police Station National Development,
services and protection (POLRES), and at least one Planning Agency,
to children involved designated investigating planning offices of

National StrategY ON access to justice

in the justice system officer for children at the level various agencies
(police, public attorneys, of Sub-district Police Station
courts, social work and (POLSEK). One special
public health facilities), prosecutor for children in
at least down to the every public attorney’s office,
level of district/city and children’s judges in every
in subdistricts where national court, social workers
necessary in every district/city and
an integrated service unit
in every community health
centre.
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
4.2. Support the social 4.2.1. Build capacity in Social workers and public Children involved in • Directorate for Child
service sector in the social service sector servants are able to prevent or likely to be involved Service and Protection,
realising justice for to prevent victimisation the victimisation of children in the justice system Department of Social
children of children involved involved in the legal system receive service from a Services
in the legal system; by providing support and social welfare sector
provide support and aid aid to families identified as committed to realising
to families identified as vulnerable justice for children;
vulnerable strong coordination exists
between the social welfare
and justice sectors

4.2.2. Build capacity in Create and operate women • Directorate for Justice
the social welfare sector and children’s service units and Human Rights,
so that it can carry in the women and children’s National Development,
out support and social unit of every District Police Planning Agency, and
research roles; this work Station (POLRES) (at a planning offices of
may then become a minimum); have at least one various agencies
basis for law enforcement designated investigating
agencies resolving cases officer for children at the
involving children Sub-district Police Station
(POLSEK) level, one special
prosecutor for children
in every public attorney’s
office, children’s judges in

National StrategY ON access to justice

every national court, a social
worker in every district/city
and an integrated service unit
in every public health centre

145
 Responsible Party

146
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
4.2.3. Build capacity in Social workers and public • Directorate for Child
the social service sector servants are able to prevent Service and Protection,
to prevent victimisation the victimisation of children Department of Social
of children involved involved in the legal system Services
in the legal system; by providing support and • Directorate for
provide support and aid aid to families identified as Community
to families identified as vulnerable Development, Director
vulnerable General for Socialisation,
Department of Law and
Human Rights
4.2.4. Build capacity Social workers and public • Directorate for Child
in the social service servants are able to protect, Service and Protection,
sector for creating, monitor and guide children in Department of Social
monitoring and guiding alternative programmes Services
alternative and protective • Directorate for
programmes for children Community
outside of centres of Development, Director
detainment General for Socialisation,
Department of Law and
Human Rights
4.2.5. Build capacity in Social workers and public • Directorate for Child
the social welfare sector servants are able to provide Service and Protection,
to provide psychological psychological support Department of Social
support and other and other necessary Services
necessary services to services to young victims of • Directorate for
young victims of violence, violence, mistreatment and Community
mistreatment and Development, Director

National StrategY ON access to justice

exploitation
exploitation General for Socialisation,
Department of Law and
Human Rights
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
4.2.6. Build capacity Social workers and public • Directorate for Child
in the social welfare servants are able to facilitate Service and Protection,
system to facilitate the reintegration of children Department of Social
the reintegration of into families and communities Services
children into families and • Directorate for
communities Community
Development, Director
General for Socialisation,
Department of Law and
Human Rights

5. Children involved in 5.1. Support and develop
the legal system do a system of legal aid,
not have access to community-based
free legal aid legal support, and
paralegal services for
children
5.1.1. Develop the Development of legal aid
capacity of advocates’ systems, community-based
networks, as well as legal support and paralegal
umbrella organisations services for children;
for the advocate and guaranteed provision of basic
paralegal professions for legal information for children,
understanding children’s advice, and representation
rights and the principles of children in administrative
of child protection processes; at a minimum, aid
in litigation and promotion
of legal and human rights
awareness
5.1.2. Develop the Development of institutional
Children involved in • Department of Law and
the justice system are Human Rights
protected by legal aid • Advocate organisations
mechanisms maintained (PERADI, Indonesian
and paid for by the State; Legal Aid Foundation)
these mechanisms
maintain the active
professional involvement of
advocates and paralegals
sensitive to gender and
children’s rights
• Department of Law and

National StrategY ON access to justice

institutional structures structures and financial Human Rights
and financial stability of guarantees for programmes • Directorate for Law and
legal aid programmes, of legal aid, community- Human Rights, National
community-based legal based legal support, and Development Planning
support and paralegal paralegal service for children Agency
services for children

147

148
OBSTACLES STRATEGY
6. Principles of social 6.1. Shift the paradigm
justice, fundamental
human rights,
children’s rights, and
gender sensitivity are
not yet integrated
into law curricula,
whether in formal or
informal programmes
National StrategY ON access to justice
ACTION PLAN
5.1.3. Provide legal
and budgetary support
for services provided
by non-governmental
organisations at the
local level, e.g. legal
information centres, legal
counselling centres,
clinics for legal and social
aid and psychological
support
6.1.1. Organise and
of justice through improve university law
changes in and curricula; mainstream
improvements to legal education in
legal education; non-law programmes,
mainstream a view of adopting principles of
justice that is critical, social justice, human
based in social and rights, children’s rights,
restorative ideas of and gender sensitivity
justice
6.1.2. Organise and
improve curricula used in
primary, middle and high
schools; include rights of
children and prevention
of violence; make these
curricula appropriate to
their intended age-
groups and based on
the principles of human
rights, children’s rights
and gender sensitivity
OUTPUTS
Provision of legal and
budgetary support for
services provided by NGOs
at the local level, e.g. legal
information centres, legal
counselling centres, clinics
for legal and social aid and
psychological support
Organisation and
implementation of a legal
curriculum treating material
on social justice, gender
sensitivity and vulnerable
communities, and that
includes material on the
rights and protection of
children, and is integrated
with the provision of legal
education materials in
various non-law disciplines
Implementation of a
curriculum that can be used
in primary, middle and high
schools, teaching the rights
of children and prevention
of violence, appropriate to
various age-groups and
based on human rights,
the rights of children and
gender sensitivity
RESULTS
T1
Children involved in the
justice system receive
protection due to a
changed paradigm of law
and justice; legal education
is based on social justice,
human rights, children’s
rights, and gender
sensitivity
Responsible Party
TIME
(Organisation/
Institution/
T2 T3 T4 T5 Agency)
• Department of Law and
Human Rights
• Directorate for Law and
Human Rights, National
Development Planning
Agency
• Directorate for Law and
Human Rights, National
Development Planning
Agency
• Directorate for Higher
Education, Department of
National Education
• Involved public
universities
• Office of the Deputy
for Child Welfare and
Protection, Ministry of
Women’s Empowerment
• Directorate for
Demography, Women’s
Empowerment and Child
Protection, National
Development Planning
Agency
• Directorate for Primary
Secondary Education,
Department of National
Education
3.7 Access to Justice for Labour
The problems of migrant and child labour form an extremely important component in this National
Strategy on Access to Justice. Although the government has already carried out several efforts
to guarantee rights to child and migrant labourers, they have not yet met with adequate success.
Becoming a migrant worker is a difficult decision since overseas work requires greater skills, while
many of those who opt for such work possess quite minimal skills. Risks are, therefore, unavoidable.

Problems begin for the migrant worker even before departure. These include counterfeit documents,
inadequate funds, and mark-ups in the cost of preparing passports. At work, migrant labourers face
employers who violate their work contracts and confiscate their documents. They are susceptible to
sexual assault (as labourers often do not have separate rooms) as well as physical and psychological
violence. Employers often forbid their employees from communicating with their families. Once an
overseas worker experiences violence, he or she often has no choice but to run away, thus becoming
an illegal immigrant, since employers retain travel documents. Upon returning, migrant labourers
face blackmail at Terminal 3 (the designated terminal for returning migrant labourers). If they have
failed or become pregnant, then they are stigmatised by their families and communities. If they have
been successful, on the other hand, their families often exploit them, demanding money for homes
and other forms of consumption. If the money is insufficient, then these labourers must sometimes go
back overseas. It is not unusual for female workers to return to find their husbands remarried.

Workers in the informal sector experience different problems. A National Development Planning
Agency study conducted from 1998-2002 showed that there are far more workers in the informal
sector than in the formal. The National Bureau of Statistics (BPS) has claimed that as much as 70%
of the workforce is employed informally.91 The informal sector is largely peopled with uneducated
workers who have not exceeded a primary school education. The work force is thus unable to advance,
as young people continue to drop out of school seeking employment.

High levels of poverty combine with the complexity of the labour market to make child labour all
but inevitable. Child workers can be found in the formal and informal labour markets. They are
subordinate to other workers and to their employers. They do not join unions since these are not
intended for them. Meanwhile, companies are inclined to employ child labourers, as they are cheap
and obedient.

A number of international conventions on labour have been ratified by the Indonesian Government,
including: (a) Convention 29 on Forced Labour; (b) Convention 98 on the Right to Organisation and
Collective Bargaining; (c) Convention 100 on Equal Remuneration; (d) Convention 87 on Freedom of
Association and Protection of the Right to Organise; (e) Convention 105 on the Elimination of Forced
Labour; (f) Convention 111 on Discrimination (Employment and Occupation); (g) Convention 138
on Minimum Age of Employment; and (h) Law No. 5/1998 Ratifying the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment. These international conventions
on labour provide convincing evidence that labour issues are universal.

This section of the National Strategy on Access to Justice addresses the problems of migrant and
child labour. The discussion will begin with the most urgent problems, the opportunities available,
and the strategies that are relevant. It will also offer an action plan that can serve as a reference for
implementation of the strategies discussed.

National StrategY ON access to justice 149

3.7.1 Migrant Workers
A. Normative Challenges
The overseas labour sector presents economic benefits as well as serious issues in need of government
attention. Overseas workers and NGOs have already begun organizing for government intervention.
These efforts have been quite successful with a number of policy initiatives by the Government at the
international, national, and local level.

At the international level, the Indonesian Government has signed MoUs with the governments
of countries where Indonesian labour is employed. Indonesia is also a signatory to the ASEAN
Declaration on the Protection and Promotion of the Rights of Migrant Workers as well as the
International Convention on the Protection of the Rights of Migrant Workers and Their Families
(1990). Moreover, in the Middle East, the Indonesian Government has made an arrangement for
mandatory consular notification in United Arab Emirates, Kuwait, and Qatar so that an Indonesian
representative will be notified immediately if an Indonesian citizen is detained.

At the national level, Law No. 39/2004 on the Placement and Protection of Overseas Workers
provides a mandate to the National Authority for the Placement and Protection of Indonesian
Overseas Workers (BNP2TKI), and the President has issued the Presidential Decree No. 6/2006 on
Systemic Policy Reform for the Placement and Protection of Overseas Workers. At the local level
there are a number of government regulations on overseas labour migration.

Presidential Decree No. 6/2006 is a legal mandate that emerged from the President’s concern over
the conditions of overseas workers, particularly after he met with Indonesian citizens working in
Malaysia in December 2005. There, he heard Indonesians’ complaints about illegal taxes, corrupt
service providers, and human trafficking of Indonesian women. After this meeting, he spoke harshly
in front of the media and instructed the Chief of Police to investigate all the crimes mentioned above.
In May 2006, the President met with Indonesian labourers in the Middle East. Here it emerged that
Indonesian workers in Qatar were made to pay illegal taxes and faced complications from the
Department for Labour and Transmigration.

The Presidential Decree is aimed at the Minister of Coordination, nine other ministers, the National
Police Chief, governors, regents, and mayors. It contains five basic policies on placement and
protection of workers, eradication of brokers, placement agencies, and banks. Every one of these
matters contains a programme of activities, expected outputs, projected timeframes, and structures
of responsibility. The decree aims to increase government sensitivity, accelerate response times,
and expedite coordination between departments. It includes a plan of 27 action points, among them:
streamlining of bureaucratic procedures; broadening of overseas labour markets; improvement
in the quality and increases in the quantities of overseas workers; improvement of capacities of
Indonesian state representatives; and prevention of trafficking, brokerage, and other illegal activities
at points of embarkation.92

1. Legal paradigms and policies that prioritise placement rather than the protection of
migrant workers
This problem is evident at all levels of policy and regulation. Law No. 39/1999 on Placement and
Protection of Overseas Migrant Workers provides an example. The law contains much more language
on placement than on protection, and it makes protection the responsibility of recruiting agencies.
Article 78 states that Indonesian representatives must provide protection for Indonesians working

150 National StrategY ON access to justice

overseas in accordance with international law and customs, but Article 82 states that those who have
been placed overseas privately are the responsibility of their agents.

Beyond issues of placement, many policies and regulations treat overseas workers as commodities.
Two local government regulations provide apt examples: Karawang District government regulation
No. 22/2002 on Service Fees for the Workforce, and Sukabumi District government regulation
No. 21/2007 on the Transfer of Sukabumi Residents Abroad as Potential Migrant Labour. An
MoU between Indonesia and Malaysia allows for Malaysian employers to retain the passports of
Indonesian migrant workers. The government is of the opinion that the policy protects overseas
workers who may not understand the value and importance of their travel documents. If an employer
holds the migrant labourer’s passport, this reduces the chances of that worker being trafficked to a
third location. It also prevents their trading passports for work cards, etc. The policy is therefore
allowed even under Malaysia’s anti-slavery legislation.93

2. Jurisdictional conflict and lack of preparedness hinder regulatory implementation

Overseas workers are difficult to protect because of conflicting legal jurisdictions, and the capacities
of implementing organisations. Jurisdictional constraints and the binding power of a law can be
seen in international-level regulations. For example, the ASEAN Declaration on the Protection and
Promotion of the Rights of Migrant Workers was signed on 31 January 2007. Although the substance
of the declaration accommodates the rights of Indonesian migrant workers, the declaration is not
binding, and depends entirely upon the commitment of the individual countries who are signatories.94
The same is true of the International Convention for the Protection of the Rights of All Migrant
Workers and Their Families (1990). Most of the countries that accept Indonesian workers have not
yet ratified this convention; even Indonesia, though it has signed the convention, has yet to ratify.
Although a framework for bilateral cooperation already exists in an MoU on Indonesian migrant
issues, it cannot contravene local law.

Regulations at the district level require jurisdictional commitments. Initiatives to create local
regulations are meaningless if others do not enact similar regulations. Cases of false identity and
undocumented recruitment generally do not occur in the home town of the migrant workers. Law
No. 39/2004 is not clear on the authority of local governments to regulate the arrangements and
placement of Indonesian overseas migrant workers or on their authority in dealing with their
employment problems.

Presidential Decree No. 6/2006 on policy reform in regard to the placement and protection of
Indonesian overseas migrant workers makes clear the limited capacities of the regulatory agencies.
It includes 19 action plans of which 17 were to have been completed by BNP2TKI in 2006, yet
BNP2TKI was only formed on 8 September 2006 (a month after Presidential Decree No. 2/2006 was
issued), and the organisation was only staffed and working from early 2007.

B. Organisational Disharmony
BNP2TKI serves a coordinating function, bringing together members of different departments.
The organisation has already struck a number of important blows—setting a standard wage and
revoking the licenses of problematic companies, for example. However, the agency is only intended
to implement policy. Technical policy formation remains the responsibility of Department of Labour
and Population Resettlement, and it is not unusual for these two agencies to disagree.

National StrategY ON access to justice 151

1. Problems of Legal Awareness
Knowledge of law among Indonesian overseas workers is still very low, as indicated by the great
number of legal cases taken up against them, and their poor organisation in the matter of collective
bargaining. This shows that the policies and regulations of the government are not yet effective in
empowering workers to protect themselves against cons, violence, and other forms of degradation.

The bargaining position of Indonesian overseas workers is indeed very low, and there is a great shortage
of organisations for effective collective bargaining. NGOs have pressured the government to create
policies on this matter, and new workers organisations have been created in Hong Kong (Indonesian
Migrant Centre and International Migrant Workers Union) and Saudi Arabia. In Indonesia, there is
now a Union of Indonesian Migrant Workers. Presidential Regulation No. 6/2006 actually weakened
the bargaining position of Indonesian workers. Although it was inspired by the President’s meetings
with Indonesians in Malaysia and Qatar, meetings to prepare the regulation included neither overseas
workers nor NGOs involved in migrant labour issues.95

C. Problems of Access to the Appropriate Forum

There are a number of forums for handling the complaints of overseas workers, legal aid offices in
the host country, bilateral and tripartite organisations among them. Still, it is not easy for migrant
workers to access these organisations, due to their limited knowledge and poor bargaining positions.

Overseas workers who do not register with the Indonesian Embassy often do not know where it is;
at the same time, embassy staff do not know the addresses of overseas workers. Embassy staff thus
remain ignorant of workers’ problems, while workers are unable to report them. Article 80 of Law
No. 39/2004 on the Placement and Protection of Overseas Workers has mandated the availability of
legal aid in host countries, but this aid is unavailable to migrants without documents.

Bipartite forums between migrant workers and recruiting companies are often unable to provide
justice since they are entirely dependent on the intentions of employers. This will only change once
workers are organised and able to negotiate from a position of strength.

D. Problems of Effective Grievance Handling

Government-established forums are ineffective since they are too few, have only begun to consider
problems of legal and economic protection, and suffer from lack of performance oversight. Indonesia
now has Labour Attachés in Hong Kong, Malaysia, and Saudi Arabia. Presidential Decree No. 6/2006
promises to place attachés in South Korea, Brunei, Jordan, Singapore, Syria, and Qatar as well. Still,
it should be acknowledged that these eight postings are inadequate for the numbers of Indonesian
labourers working abroad.

Another problem with the decree is that it emphasises legal and economic protection issues, while
migrant workers actually suffer from a host of social difficulties as well: difficulties in communicating
with families, lack of educational facilities, and difficulty in their relations with places of worship. A
migrant worker suffering depression due to physical, psychological, and sexual violence cannot be
served by legal aid alone.

E. Resolving the Problems

An entire complex of problems, ranging from the legal paradigm to the limitations of protective
services and government service integrity, has already given rise to dissatisfaction on the part of
Indonesian migrant workers. These are exacerbated by the workers’ own limitations in knowledge

152 National StrategY ON access to justice

and organisation. Many end up running away from their employers or even committing suicide.
Running away, however, only creates new problems, such as loss of contacts and immigration status.
The State must do all it can to protect and empower overseas workers through an entirely new
regulatory paradigm and oversight.

3.7.2 Child Labour

A. Normative Problems
1. Normative guarantees that have not been implemented
The Government of Indonesia has already committed itself to dealing with the problem of child
labour by its ratification of ILO Convention 138 (Law No. 20/199) and ILO Convention 182 (Law
No. 1/2000). Presidential Decree No. 12/2001 on the National Action Committee for the Eradication
of the Worst Forms of Child Labour, Presidential Decree No. 59/2002 on the National Action Plan
for the Eradication of the Worst Forms of Child Labour, and Law No. 23/2002 on Child Protection
have also been issued.

These measures have made Indonesia one of the first countries in Southeast Asia to take up a
programme of eradicating child labour, including its worst forms.96 Nonetheless, Indonesia still has
many child labourers, and it also suffers from child trafficking and prostitution. According to the
National Employment Survey for 2007, there are 1.1 million children between the ages of 10 and 14
working in Indonesia.

According to the Department of National Education data for 2008, 11.7 million children did not finish
primary school. This contradictory data would seem to indicate roughly 10 million children who may
be covertly employed. Based on a joint study conducted by the ILO and University of Indonesia in
2003, there are 700,000 children working as domestic servants, about 90% of them girls. 4,180,000
middle school-aged children (13-15), or 19%, are not in school. According to the same study, there
are more child labourers in the countryside (79% of total child labour) than in cities (21% of child
labour); 62% work in agriculture, 19% in industry, and 19% in services.

The state courts have only ruled three times on the violation of Article 74 of Law No. 13/2003 on
Labour. Article 74 states that no one may employ children in the worst forms of employment. The
three judgments came from Jepara, Solo, and West Jakarta. The number is shockingly low compared
to the 512 cases that have been reported in the media and by NGOs. Even in these three cases
however, criminal proceedings were not based on national law, but rather on local regulations that
carried maximum penalties of six months imprisonment.

Law enforcement agencies perform poorly in responding to child-related complaints, including

trafficking, commercial sex work, drugs trafficking, and other forms of employment that endanger
the minds and bodies of children. Many law enforcement officials, including judges and police, do
not understand the extent of the problem. They are unable to control and monitor the networks that
put children to work in situations contrary to law and international convention. Finally, they do
not understand laws prohibiting employment of children in professions that endanger their minds,
bodies, and morals.

National StrategY ON access to justice 153

B. Problems of Legal Awareness
Legal knowledge for workers consists of knowledge of rights guaranteed by the Constitution.
Unfortunately, many of the rights guaranteed by the Constitution are rendered far more narrowly in
legislation; the constitutional guarantee of a right to a livelihood, for example, is limited by regulation
to a guaranteed but insufficient minimum wage. Furthermore, these rights can only be fulfilled by
workers able to negotiate from a position of power. For the most part, however, workers are forced
to choose between bad work conditions and no work at all.

Child labourers have an extremely weak bargaining position and are subordinated in a variety of
ways, both to employers and their adult colleagues. There are no labour unions for children, and
general labour unions do not work on children’s issues. Employers take advantage of children’s
ignorance and weak bargaining positions.

C. Problems of Access to the Appropriate Forum

The Committee for the Eradication of the Worst Forms of Child Labour operates at the national level
(as stated in Presidential Decree No. 12/2001), as well as provincial and district/city levels (as decreed
in the orders of governors and regents). The Committee is set up to coordinate, monitor, and evaluate
the implementation of the National Action Plan to Eradicate the Worst Forms of Child Labour. There
is also a Commission for the Protection of Indonesian Children, a National Commission for the
Protection of Children, and various other institutions for children’s protection.

These institutions are not yet well known, and in practice they have not been able to take initiative
on cases related to the worst forms of child employment. They have met with either minimal or no
success.

D. Problems of Effective Grievance Handling

Since no appropriate forum has emerged for handling cases of child labour, labourers and others
concerned for them must bring their grievances either to the police or labour officials. Sometimes
their grievances are followed up, but more often, perhaps due to a shortage of human resources,
complaints are merely written and forgotten without investigation.

E. Problems of Reaching Satisfactory Outcomes

As noted above, forums for handing the problems of child labour remain ineffective, as demonstrated
by the 3 successful cases brought as against 512 known cases of criminal exploitation. Unlike adults,
children lack choices and are unable to defend themselves.

3.7.3 National Strategy on Access to Justice for

Labour
A comprehensive strategy is necessary to address the entire complex of challenges discussed above.
Although every sector faces its own challenges, they are all related by the need for strategy at the
levels of paradigmatic thinking, legal regulation, and implementation; and all will benefit from
strengthening the bargaining positions of workers.

First, at the level of paradigm: Labourers must be understood from the perspective of universal
human rights. This means that workers have rights as people and as workers, and that the State has

154 National StrategY ON access to justice

an obligation to promote, fulfil, advance, and protect these rights. All strategies must be based on
this fundamental principle. Workers should no longer be understood simply as factors of production,
troublemakers, or commodities. In the migrant labour sector, the State must guarantee workers’
rights to a safe and humane work environment, to control of their own legal documents, and to
sufficient information on the places, mechanisms, and methods for addressing disputes. This should
be accomplished by changing the paradigm of the current legal regime from one of placement to
one of protection, by revising exploitative local ordinances on migrant labour, and by revisiting
international agreements that disadvantage labourers. Conflict between the National Authority for
the Placement and Protection of Indonesian Overseas Workers and the Department of Labour and
Transmigration should be resolved. In the child labour sector, the government must seek greater
cooperation with oversight institutions to put an end to criminal employment practices—particularly
those that exploit or traffic in children.

Second, at the level of bargaining power: Improving the bargaining position of workers is essential
to the realisation of justice. They must have workers’ organisations, and they must participate actively
in regulatory, policy, and dispute-resolution forums. The role of the Government is to facilitate
formation of unions and to work in cooperation with institutions that serve labour in advocacy and
organising roles. Information, legal aid, and trauma and complaints facilities should also be provided
and made accessible to all workers. Child labour in the formal and informal sectors should be made
part of the labour union agenda.

National StrategY ON access to justice 155

 3.7.4 ACTION PLAN ON ACCESS TO JUSTICE FOR LABOUR

156
Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Migrant worker rights Improve legal Create a guide to Standards for legal Improve prospective Department of Labour and
have not received counselling legal counselling and counselling of prospective migrant workers’ Transmigration
adequate protection of prospective migrant protection of prospective migrant workers addressing knowledge of their rights
workers before they are migrant workers the following: and responsibilities from National Authority for the
sent abroad 1. Efforts to prevent pre-departure to postreturn Placement and Protection
the departure of of Indonesian Overseas
undocumented workers Workers

2. Access to legal
protection for migrant
workers, including social
and health guarantees in
the adopted country

3. Human rights legal

instruments, particularly
the ILO convention
and other international
mechanisms for
providing protection to
migrant workers

4. International agreements
(Memoranda of
Understanding) between

National StrategY ON access to justice

governments involved

5. Use of mass media in

reporting and informing
the public about the
responsibilities of and
advocacy roles carried
out by Indonesian
embassies and
consulates for migrant
workers abroad.
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Many children suffer Put greater effort into Empower reconciliation 1. Publicise the Committee Children, through their Department of Labour and
the worst forms of preventing children institutions for handing for Action to End parents or legal guardians, Transmigration
employment working in the worst the problems of child The Worst Forms of have access to institutions
forms of employment labour Child Employment for reporting on the worst Indonesian National Police,
(Line 3, Law No. 1, at the national level, forms of employment Department of Social
2000 Forbidding and established by Services
Immediate Steps for Presidential Decree
Ending the Worst No.12/2001 to
Forms of Employment coordinate, monitor
for Children), including and evaluate the
the involvement/labour implementation of the
of children in all forms National Action Plan for
of slavery, all forms of the Eradication of the
armed confl ict, sexual Worst Forms of Child
exploitation, illegal Labour
activities (including
the drugs trade), and 2. Further action on the
dangerous activities provincial level through
governor’s regulations
and decrees, and at the
district level by regent’s/
mayor’s regulations and
decrees

3. Evaluation of the
implementation of the
National Action Plan for
the Eradication of The

National StrategY ON access to justice

Worst Forms of Child
Labour

4. Develop trauma centres

for children who have
experienced trauma
through child labour;
these centres will
offer protection and
rehabilitation

157
 Responsible Party

158
OBSTACLES STRATEGY ACTION PLAN OUTPUTS
Make education available Specialised formal education
outside of schools to outside of school for former
former child labourers child labourers
Migrant workers facing Optimise legal protection Handle the legal cases of 1. Expedite the
legal difficulties abroad of migrant workers migrant labourers abroad establishment of a
are not yet provided with through intersectoral more effectively shelter in Indonesian
optimal service cooperation embassies for migrant
workers, with facilities
such as counselling
services, particularly for
female workers
2. Implement procedures
for improving the
conditions of migrant
workers facing physical
or mental abuse, and
for those suffering from
sexually transmitted
diseases including HIV/
AIDS
3. Provide legal aid for
migrant workers involved
in legal cases abroad
Conflict between the Harmonise the functions Fulfil the basic mission The basic missions and
functions and powers and authorities of and functions of the functions of the two agencies
TIME
(Organisation/
RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Former child workers Department of National
receive access to Education,
education that can help Department of Labour and
secure their futures Transmigration
Migrant workers have Department of Labour and
a forum for when they Transmigration,
face legal difficulties, or if National Authority for the
they are victims of legal Placement and Protection
violations while working of Indonesian Overseas
abroad Workers, Department of
Justice and Human Rights,
Department of Foreign
Affairs
Harmonisation and Department of Labour and
synchronisation of Transmigration,

National StrategY ON access to justice

of the Director General Binapenta’s Director Director General of are harmonised institutional relations in National Authority for the
of Workers’ Training General and National National Authority for dealing with issues of Placement and Protection
and Plotting (Binapeta) Authority for the the Placement and migrant labour abroad of Indonesian Overseas
and National Authority Placement and Protection of Indonesian Workers
for the Placement and Protection of Indonesian Overseas Workers and
Protection of Indonesian Overseas Workers Binapenta
Overseas Workers
3.8 Access to Justice for the Poor and
Marginalised

Poverty is a condition in which someone or some groups of people, women and men, are unable
to fulfil their most basic rights to live and develop their lives with dignity.98 Such a rights-based
formulation of poverty bears the following implications: (a) the State is obligated to respect, protect,
and fulfil the basic rights of the poor; otherwise the State is in violation; (b) poverty cannot be
measured by income alone, but must also take into account vulnerability. Therefore, the problems of
the poor are also the problems of the oppressed and marginalised.

All persons have fundamental rights to food, health, education, employment, a home, clean drinking
water, land, natural resources and a healthy environment, freedom from violence and oppression,
and participation in social, economic, and political life. Failure to obtain, manage, take advantage of,
or defend these basic rights is a form of injustice, and can lead to poverty and impoverishment. The
connection is clear between poverty and poor people’s right to justice.

Access to justice has a direct impact on the income and welfare of the poor. The poor are very
vulnerable to loss of income and reductions in welfare, particularly if they suffer from crime or
disputes—for example, inability to retain their rights to land, or failure to defend their economic and
social rights in divorce or inheritance disputes. Still, the poor and marginalised are less likely to take
legal action when facing a problem or dispute (Asia Foundation, 2001).

3.8.1 Main Obstacles of Access to Justice for the

Poor and the Marginalised
A. Limited Knowledge of the Law and Inability to Struggle for Legal Rights
Research has shown that 56% of Indonesians cannot name a single one of their legal rights. The
figure increases dramatically when only women are taken into account (66%), and even further
when respondents have had no formal education (97%) (World Bank, 2006). Yet justice can only
be achieved when people have access to knowledge of fundamental human rights along with legal
empowerment. Legal education provides information as to the “what” of people’s rights, but it must
be made actionable with legal empowerment that provides the “how”—how to obtain, take advantage
of, and defend these rights.

The government has taken note of the issue, and law enforcement institutions have already begun
education and sensitising training programmes, such as “Kadarkum” (Legally Aware Family
programme), “Hakim Masuk Desa” (Village Visiting Judges programme), and “Jaksa Masuk Desa”
(Village Visiting Public Prosecutors programme). University law departments have also taken note,
as have community legal empowerment programmes. Still, there are various challenges to effective
implementation that need to be addressed: (a) Limited reach. Legal education is accessible only to
the elite and the educated; particularly those in the cities. This is a classic problem for Indonesia, in
which government infrastructure and geographic breadth obstruct access. Government bureaucrats in
remote areas are more likely to stress “order” and “law enforcement” than education; (b) Legalistic-
normative educational methods. Government programmes for people’s legal education usually

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employ one-way teaching methods, and are far more likely to emphasise people’s obligations than
their rights. Citizen’s legal awareness programs do not easily provide information on procedures
when people’s rights have been violated by the State; (c) Disregard for the concrete experience and
legal problems of people. The form and substance of present legal education point in one direction:
from the government to the governed. Local experiences with the law are generally disregarded, and
educational materials bear little concern for contemporary problems.

In other words, the limited efforts to provide community legal education have not been part of a long-
term plan for people’s legal empowerment. Legal aid institutes and universities have gone some way
to filling the gap, but because of their limited resources, programmes for legal empowerment have
remained sporadic and reactive—in response, for example, to disputes over land, natural resources,
corruption, and labour. These are precisely the matters in which government and law enforcement
are cast as adversaries of the poor.

B. Weak Bargaining Position

Minimal knowledge of and experience in applying legal procedures to achieve justice puts the poor
in a particularly weak bargaining position. People’s efforts to obtain justice in the restoration of
their rights can take advantage of judicial process that are either formal (the courts) or informal
(customary or other processes of mediation, arbitration, and negotiation). A report by the Justice for
the Poor Programme based on research conducted in nine Indonesian provinces in 200399 illustrates
the poor’s bargaining position thus: First, when the poor wish to engage informal mechanisms,
they are faced with village elites and customary or religious leaders who tend to prioritise village
harmony. The needs of the people, particularly the poor and women, therefore tend to be disregarded,
all the more so if village elites or government officials are involved in the dispute. Second, people
who choose formal procedures face not only geographic obstacles but a lack of knowledge as to the
workings of judicial procedure and available legal aid. Ignorance of legal procedure makes the poor
particularly vulnerable to solicitations of bribery.

As the World Development Report 2006 states: “People’s legal rights remain theoretical if the
institutions charged with enforcing them are inaccessible” (World Bank, 2006). When regulations
begin to take a pro-poor stance and legal knowledge improves, then law enforcement mechanisms,
whether formal or informal, should become accessible. Unfortunately, interactions between law
enforcement and the poor still suffer from the following problems:

1. Weak public monitoring. Inadequate access to dispute resolution mechanisms for the poor and
marginalised leads to insufficient monitoring, particularly of on-going processes, whether in
formal or non-formal settings;
2. Institutional reform’s disregard for local community life. Recent years of institutional reform
in the formal legal sector (including the Supreme Court, Attorney General, and Police) have yet
to solve the remaining challenges, especially gaining public trust and public access to the those
institutions. Institutional reform must take account people’s needs. Otherwise, reforms will be
unable to improve people’s actual lives (as must be the ultimate goal of all reform efforts);
3. Disregard for informal institutions. Legal and judicial reform has tended to over-emphasise
formal institutions at the expense of informal institutions, even though the latter tend to have more
impact on people’s lives. Attention must be provided to the informal sector in national and local
reform efforts;
4. Effective legal administration. Institutional performance is an important element in providing
access to justice. People must perceive their legal institutions as professional, impartial, and
efficient. Procedures must remain consistent regardless of people’s social status. In the short

160 National StrategY ON access to justice

 term, this leads to more just decisions; in the long term it helps to increase the legitimacy of public
institutions;
5. Minimal participation of the poor and marginalised in processes of government policy
formation and decision-making. Governments and civic organisations must take affirmative
steps to ensure that poor people’s interests are represented in the legislative and regulatory drafting
processes. If not, then much research has shown that regional regulation drafting processes serves
only to further impoverish the poor;
6. Limitations of legal aid. Everyone who faces a legal challenge requires legal aid, consultation
and advice, mediation, and representation before the court. For this, one needs information,
physical access, and money—resources that are largely unavailable to the poor and marginalised.

The structure of legal aid is often compared to that of public health. Health services are available
at the sub-village (“Posyandu”), village (“Polindes”), sub-district (“Puskesmas”), district levels
(regional general hospitals) up to the central government level. However, pro bono legal aid only
becomes available at the district level, and that too with very limited budgets. This is despite the fact
that, just like illness, legal difficulties and deprivation of rights can strike anyone at any time.

Oftentimes, problems do not have to be solved immediately by formal mechanisms; legal aid should
thus be made available in the local venues that people actually turn to first. Many legal problems
could be resolved if people only had access to the appropriate person or agency. Legal aid should be
available in this very first phase, before the problem triggers larger-scale or violent conflict.

3.8.2 Opportunities for Improving Access to

Justice
Improvements to the normative legal framework. Access to justice for the poor and marginalised
already enjoys a strong legal foundation in Indonesia. Alongside the Constitution, a change in
perspective to treat poverty as a matter of rights represents a strategic opportunity to advance
important policies and regulations on access to justice.

One should also take note of the opportunities contained in decentralisation and direct elections of
regional governments. Both allow for greater participation and representation of the poor in protecting
their basic rights, including those to economic opportunity, education, and welfare.

Education and community legal empowerment. Notwithstanding implementation problems, the

government has consistently sought to include programmes for community legal education in official
programmes and law enforcement offices. On the other hand, the Indonesian legal aid movement has
a long history of formulating strategies and methods for spreading legal education and empowerment
throughout the archipelago. The challenge now is to encourage synergies whereby the government
can learn and benefit from the successes of the legal aid movement. Furthermore, those who work
in legal empowerment should be able to complement each other’s skills in an integrated service
structure. In the last decade the central and regional governments have provided encouragement to
the legal aid institutes along with guarantees of their continued independence.

Improve networking to support integration of government and non-government economic

empowerment programmes. The State has already launched several such programmes in the past
three decades, most recently the National Programme for Community Empowerment (PNPM

National StrategY ON access to justice 161

Mandiri) which, since 2007, has reached from the national level to the village in all 33 provinces of
Indonesia. Community-based empowerment tends to target specific populations, either in the city
(e.g., Urban Poverty Handling Programme/P2KP), the village (Rural Development Programme /
PPK), or areas that have been designated as special or underdeveloped (Underdeveloped and Special
Regions Development Acceleration Programme/P2DTK).

The thorough geographic reach and integrated structure of these economic empowerment programmes
should strategically be taken advantage of in developing legal aid networks and programmes for legal
empowerment. For example, village facilitators could also be trained as paralegals and mediators.
Meanwhile, district and provincial-level facilitators can be trained as community lawyers. The
P2DTK programme indicates that economic empowerment facilities at the sub-district level can be
used as community legal aid posts, providing education and assistance in community disputes.

Research and legal aid centres appear on many Indonesian university campuses. While these are
generally located in district or provincial cities, the scope of their educational and legal aid work can
often reach the village level as well. The University Student Internship Programme (KKN) should
implement a specific programme of legal aid internships, whereby students may use their knowledge
and skills to provided legal assistance to the rural poor.

3.8.3 National Strategy on Access to Justice for

the Poor and the Marginalised
The following strategic recommendations are offered in light of the various opportunities presented
above. They represent a strategic programme for the five years to come:

1. Community-based legal education

Education is the right of every citizen. In order to improve people’s access to justice, legal education
must encompass citizens’ ability to obtain basic information regarding their rights in the fields of
economics, health, government, etc. Such knowledge should be accompanied by an understanding
of the various mechanisms available for dispute resolution, and of the nearest sources of legal
information and assistance.

The following conclusions are based on the shortcomings of current programmes for community
legal education: (i) the content of legal education must be relevant to community needs as well as
to the actual and potential problems of those involved; (ii) teaching methods should be appropriate
to adult learners and should draw on their own experiences of the law as far as possible; and (iii)
legal education should not exist in isolation, but should rather draw on the momentum of various
other activities already underway in the community. Such activities may include: education on
land law for farmers and masyarakat adat suffering from, or vulnerable to, disputes over natural
resources; education on criminal law for those facing corruption charges over their work in economic
empowerment programmes; and education on labour law for unions, particularly those currently facing
labour disputes. In short, legal education over the next five years should become more community-
oriented and more integrated with the entire range of activities supporting legal empowerment and
people’s access to justice.

This strategy clearly requires a paradigm shift in university legal education. It is well known that
most of those who determine the law’s practical development (law enforcement officials, lawyers,

162 National StrategY ON access to justice

regulators, legal aid providers, etc.) are the products of university law programmes. Indonesia’s law
programmes are currently dominated by normative and formal-legalistic approaches, according to
which the law is a state instrument employed to maintain order. This approach must be integrated
immediately with new perspectives on the law’s social role, whereby the experiences and interests of
local communities become a primary consideration in the administration of justice.

Methods of community legal education should take into consideration the structure of existing legal
aid networks: legal aid institutes at the national, provincial and district levels, networks of paralegals,
and local community cadres. As stated in the Justice for the Poor Programme study noted above,
legal education will be far more effective when it is carried out at the level of government appropriate
to the particular issue faced by members of the society.

Community-based legal education must take place within a larger framework of legal empowerment
based on the following principles: (i) that it remains tied to people’s economic, social, and political
rights; (ii) that it takes consideration of local contexts; and (iii) that it promote partnerships by bringing
together judges, public prosecutors, police, and communities to improve overall legal awareness,
public trust and the capacity of legal officials to respond to community needs.

2. Development of the paralegal profession in Indonesia

Paralegals are the advance guards of the community-based legal education and legal aid network.
A paralegal (often known by terms such as “local cadre,” “group facilitator,” “local leader,” “focal
point,” etc.) is essentially a man or woman from the community who has been trained and educated
to carry out the tasks of community empowerment, advocacy, and case handling. Nearly all legal
empowerment and advocacy programmes maintain paralegal services, even if these are only sectoral,
i.e., dealing with women’s issues, labour, agriculture, fisheries, urban poverty, street vending, etc.
This piecemeal sectoral approach should be transformed into a comprehensive and multidimensional
network, able to provide legal education, organisational support, and case handling. Paralegals should
be equipped with mediation skills and other alternative methods for dispute resolution.

Development of the paralegal profession will bring about the following benefits: (i) addressing
concerns of access, since paralegals generally live in the communities they serve; (ii) addressing
concerns of sustainability, since paralegals are not restricted by matters of time and programme fee;
(iii) addressing problems of method in education and empowerment, since paralegals are generally
the individuals best suited to explaining legal matters in the language of their communities.

Development of the paralegal profession can begin with a blueprint to formulate basic matters
including the following: roles, training methods, work methods and materials, ethics, and the
position of paralegals in the formal judicial process. One step that should be taken right away is the
establishment of a centre for paralegal training, where paralegals currently specialising in one issue
or sector can receive broad legal training before moving on to their areas of particular interest.

3. Integration of a legal empowerment component within community empowerment

programmes
The report of the Commission on Legal Empowerment of the Poor has amply demonstrated the intimate
relationship of poverty to legal empowerment. “In the twenty-first century, legal empowerment will
be the key that allows four billion people to stamp out poverty and found a more stable, peaceful
world.”100 Many research programmes have recommended that legal empowerment activities be
integrated with other programmes, including those focused on the economy, education, etc. This
type of integration is important for several reasons: (i) legal empowerment is more effective and

National StrategY ON access to justice 163

better comprehended when it is tied to the problems and activities of the target community; (ii)
it minimises the expense of founding a new system from scratch; (iii) it creates mutual benefits,
as economic empowerment benefits from mechanisms for handling corruption, embezzlement,
programme violations, etc., and the community gains access to support, education, and legal aid; and
(iv) it makes programmes more sustainable.

As mentioned above, legal empowerment should achieve significant synergies with other types of
empowerment programmes. Failure to integrate legal empowerment programmes not only causes
financial loss but losses in efficiency as well. Non-governmental actors should also take part in
programme integration. Those working in legal empowerment in Indonesia have a wealth of
experience to share that can be translated into improved methods and strategies in legal education
and legal empowerment as one component in empowering the society.

164 National StrategY ON access to justice

 3.8.4 ACTION PLAN ACCESS ON JUSTICE FOR THE POOR AND MARGINALISED
OBSTACLES
1. Inadequate
knowledge of law and
legal mechanisms
among the poor and
marginalised; due
both to the low quality
of education overall,
and to the particular
paradigm of Indonesian
legal education which
emphasises a strict rule
of law approach while
generally ignoring issues
of social justice
2. The poor suffer from a
weak bargaining position
in their relations to legal
institutions and other
interested parties. They
therefore suffer from a)
weak public oversight, b)
low participation, and c)
inability to protect basic
rights
National StrategY ON access to justice
165
STRATEGY
1. Revamping of
Indonesian legal
education, beginning
with steps to alter the
paradigm so that rule of
law and social-justice-
based perspectives are
balanced; law education
that conforms with basic
social rights, values
the local contexts in
which law operates, and
integrates theory with
practice in resolving legal
issues facing the poor
and marginalised; make
legal education available
at every level, from the
community at large to
civil society organisations
and advocates
Responsible Party
TIME
(Organisation/
ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Support for the • Association for altering A new paradigm for Directorate for Law and
establishment and the paradigm of legal teaching Indonesian law, Human Rights, National
operation of an education; working balancing legal certainty Development Planning
association charged paper recommending a and social justice, Agency, in coordination with
with altering the renewed vision of, and improving the quality and Director General of Higher
paradigm of legal materials for, Indonesian quantity of research on Education, Department of
education, including legal education the anthropology and Education and Culture
curricula and • Changes to course sociology of law, and
teaching materials materials in law strengthening institutions
• Support for the • Budget allocation and initiatives for making
establishment for research into justice available to the poor
and operation of the sociology and and marginalised
a research centre anthropology of law
for the study of • Research into
sociology and the sociology and
anthropology of law anthropology of law
in Indonesia
 Responsible Party

166
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
3. Disregard for the • Create
sociological context in educationalmaterial
which law operates, in various media
including limited targeted at the poor
support for the various and marginalised;
mechanisms for case material should be
resolution at local levels; easily understood
limited support for, and and oriented towards
acknowledgement of, the resolution of
these local mechanisms concrete legal
by formal legal problems
institutions
2. Develop the field of • Institute legal Legal regulation recognising, Improvement in the quality Department of Law and
paralegal assistance regulations and budget funds allocated and quantity of paralegals Human Rights
in Indonesia so that it guaranteeing to, paralegals as legal aid based in particular
integrates with efforts recognition of workers and community legal communities (rather than
to strengthen the paralegals’ role in support based in particular issues
rights of the poor and providing legal aid; or sectors) whose activities
marginalised, including provide funding Blueprint for the development are recognised and
women, children, for legal aid and of the paralegal profession in supported by law
labourers, famers, and educational activities Indonesia (2010 – 2020)
the rural poor. carried out by
paralegals and the
civic institutions that
support them
• Prepare a blueprint Create one national clearing
for the development house and six local clearing

National StrategY ON access to justice

of the paralegal houses in every region of
profession in Indonesia (West – Central
Indonesia, charting – East)
the professions’
further development
and redefining
paralegals in a
manner appropriate
to the legal aid,
advocacy and legal
education situations
in Indonesia
 Responsible Party
TIME
(Organisation/
OBSTACLES STRATEGY ACTION PLAN OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
• Create a centre for • Community-based legal
training, research aid coordination posts
and documentation (Posko) for the advanced
of paralegal practice, development of a
supported by the paralegal profession in
government and Indonesia
law enforcement
apparatus,
accessible to legal
aid and advocacy
organisations,
and to poor and
marginalised people
themselves
• Develop • Paralegals are
communitybased trained and supported
legal aid coordination by community
posts equipped empowerment
with education, programmes helping
mediation and legal to eradicate poverty in
aid functions aimed Indonesia
at the poor and
marginalised
• Integrate the
development of
the paralegal
profession with other

National StrategY ON access to justice

programmes for
strengthening access
to justice, legal
empowerment and
poverty eradication

167

168
OBSTACLES STRATEGY ACTION PLAN
3. Integrate initiatives • Create a component • Every community
for access to justice for Community
in community Legal Mediation and
empowerment and Empowerment as
poverty reduction an integral part of
programmes every programme
designed for social
empowerment and
poverty reduction
• Formation of a • Every community
special complaint-
handling mechanism
responsible for
managing community
complaints and
supporting efforts to
resolve matters justly
• Strengthen regional • Government regulation
institutions for
dispute resolution
(alternative dispute
National StrategY ON access to justice
resolution), and
strengthen the
relationship
between local
mechanisms
and official law
enforcement
institutions
Responsible Party
TIME
(Organisation/
OUTPUTS RESULTS
Institution/
Y1 Y2 Y3 Y4 Y5 Agency)
Integration of access National Development
empowerment and to justice initiatives and Planning Agency, in
poverty reduction activities of poverty coordination with Regional
programme has a reduction programmes; Development Planning
complaints-handling unit strengthening of local Bodies and other
disputes resolution departments involved in the
mechanisms that conform National
to the values of universal Programme for Community
human rights and are Empowerment
recognised by the legal
apparatus
empowerment or poverty
reduction programme
has a community
legal mediation
and empowerment
component
National Development
on strengthening and Planning Agency, in
utilising community coordination with Regional
disputeresolution Development Planning
mechanisms Bodies and other
departments involved in the
National
Programme for Community
Empowerment
 CHAPTER 4
CHAPTER 4
FUNDAMENTAL PRINCIPLES OF A
NATIONAL STRATEGY ON ACCESS
TO JUSTICE
The fundamental principles of the National Strategy on Access to Justice represent a synthesis of all the
strategies presented above, in light of the eight challenges addressed: legal and judicial reform, legal
aid, government administration, land and natural resources, labour, and access to justice for women,
children, and the poor and the marginalised. Each of these challenges has been approached from
similar perspectives: reference to the normative framework, legal awareness, access to the appropriate
forums, effective grievance handling, restoration of rights, and poverty and the national strategy.

The National Strategy on Access to Justice embodies four fundamental principles: (1) the equal
importance of all strategic components; (2) synergies between central and regional governments;
(3) balance between state-based and alternative justice systems, as well as justice administrators
and those seeking justice; and (4) monitoring, supervision, and transparency. These principles are
elaborated below.

First, since every component of access to justice is of equal importance, all must be acted on
simultaneously. Improvements to one will raise demands for improvements to the others. Conversely,
disregard for any one component will harm the entire programme.

Second, cooperation between the various levels of government creates synergies. The central
government’s commitment to implementing the entirety of this strategy is crucial, but so is the
commitment of the regions. Decentralisation has provided autonomy for the regions in formulating
their own programmes improving access to justice for the poor and marginalised. Successful
implementation of this strategy will therefore require great effort on the part of the regions, and
will encourage improvements to the quality of regional regulations, policies, and development
programmes. It will also require consistency in adhering to national law and the national development
programme.

Third, a balance must be achieved between state and alternative justice systems, and between
administrators of justice and those who seek justice. Many of the strategies presented in this report must
operate in both domains; reform applies both to formal regulations and law enforcement institutions,
and to alternative mechanisms at large in the communities. Many studies have demonstrated that the
formal and informal justice systems are in fact inseparable from one another—that the weakness of
one perforce weakens the other.

National StrategY ON access to justice 169

Fourth, monitoring, supervision, and transparency will be critical to the success of this Strategy.
Every strategy requires monitoring systems and supervision to guarantee transparency. The National
Strategy on Access to Justice provides a mandate to government and civil society organisations to
adopt plans and mechanisms for the monitoring and supervision of its programmes. Both parties
should adopt and promulgate the best practices of transparent, participatory, and accountable
development. For this, the Government should take advantage of steps that have already been carried
out in civil society. It has been demonstrated repeatedly that most successful policy implementation
strategies are based on the adoption of best practices already pioneered elsewhere.

National Strategy on Access to Justice

Six fundamental strategies are detailed below. They include (1) paradigmatic changes in legal
development and in the role of Indonesian legal education; (2) recognition and support for legal aid
and the paralegal profession; (3) improvements to legislation and political processes necessary for
the support of access to justice; (4) formulation and enforcement of minimum service standards for
public services; (5) strengthening mechanisms for handling grievances and compensation for those
who have been disadvantaged by public services; (6) empowerment of a community-based justice
system.

4.1 Improvements to Legal Development through

Legal Education and Strengthening of Law
Enforcement
Achieving access to justice cannot be separated from the overall development of law. Legal
development in Indonesia requires thorough and coordinated effort to address the problems of a legal
paradigm that influences legislation, law enforcement, and legal education.

Changing the Paradigm of Law and Legal Education

Section 1(3) of the Indonesian Constitution (Third Amendment) emphasises Indonesia’s status as a
nation under the rule of law.101 The question, however, remains as to what sort of law: Does Indonesia
privilege legal certainty above justice, or is justice understood as law’s paramount value? Professor
Satjipto Rahardjo believes that the Indonesian nation must now decide on this matter—one that was
perhaps left incomplete by the founders of the Indonesian Constitution. The question remains urgent,
since Indonesia has yet to guarantee the rights of all Indonesians to achieve their aspirations.102

The work of creating a new paradigm for Indonesian legal development must take into account the
matter of legal education. Legal education includes the delivery, propagation, and internalisation of
curricula, perspectives, and methods, all shaped by the dominant paradigm. Legal education is also
the forum from which legal discourse emerges; it can, therefore, play an important role in contributing
to the dynamism and development of the changing paradigm itself. Legal education influences the
personnel of law enforcement and justice (judges, public prosecutors, advocates, legislators, legal
bureaucrats, and police) and sets the direction of legal developments for the future.

Noting the strategic importance of legal education in forming a more justice-oriented paradigm for
Indonesia’s future legal development, the following steps must be taken:

170 National StrategY ON access to justice

1. Strengthen the socio-legal perspective of legal curricula
University law education in Indonesia tends to emphasise the rights of the poor and marginalised
less as it grows increasingly focused on commercial law. In fact, global poverty bears a significant
relationship to state disregard for poor people’s access to justice (CLEP, 2008). Equally important
is the pluralism of Indonesian law, a product of Indonesia’s highly plural society. Yet university law
curricula do not prepare students to explore the relationship between the law, society, and justice.

An education in legal formalism is indeed necessary to guarantee the order and stability of law. An
exclusively normative legalist education, however, will create a class of experts who understand law
entirely as a dead letter, isolating it from its social context. It is highly unlikely that a graduate trained
under such a system will be able to theorise the radical innovations necessary to make law a living
part of the developing society. Rather, law will grow ever further from the aspirations of social justice
under these circumstances.

University law curricula must incorporate social justice, gender-sensitive, and human rights
perspectives (including the rights of women, children, and the marginalised). It must also take account
of the natural environment. Law graduates should not be prepared merely to uphold the law, but to
help shape a sensitive legal regime offering justice to the vulnerable and the marginalised. Future
law graduates must be able to innovate when law has not yet developed to accommodate social
problems. Multi-disciplinary legal education will encourage law graduates to formulate regulations
that guarantee justice, and legal institutions that are responsive and sensitive to people’s cultures.

This new approach should begin with the development of curricula at university law faculties, in non-
university legal education centres, and in courses aimed at law enforcement officials at the national
and regional levels.

2. Encourage community-based critical legal education

A belief persists that law and justice are complicated matters, only to be understood by a select
few. Providing access to justice for all, however, requires all people to have basic knowledge and
understanding of the law. People’s sense of justice often diverges from positivist legal interpretations
that privilege certainty over justice.103 The lack of pro-poor perspectives foregrounding justice is
reflected in the law-making processes and its implementation.

Widespread community-based critical legal education is necessary so that people may understand
their own fundamental rights as guaranteed by the Constitution and laws and regulations, whether
these be economic, social, cultural, or political. This sort of education should use innovative teaching
methods appropriate to and easily understood by those taught. It should begin with the formulation
of teaching methods that are both interactive and participatory.

In its current efforts to promote legal reform, law enforcement agencies should focus on organizational
reform. Strategic improvements to law enforcement agencies may be achievable through the
following efforts: (1) improve the capacities of law enforcement officials through curriculum
reform and instructional methods that promise integrity and quality. New curricula and methods
should produce officials who are more aware, knowledgeable of, and sensitive to issues of social
justice, gender, human rights (including those of women, children and the marginalised), and the
environment; and (2) strengthen the institutional capacity of law enforcement through the reform of
structures, mechanisms and procedures pertaining to legal certainty and integrity; improving planning,
coordination, and monitoring and evaluation of law enforcement; and improve public confidence in
the law by providing transparent and accountable means for the handling of complaints in the region.

National StrategY ON access to justice 171

4.2 Recognition of and Support for Legal Aid
and Development of an Indonesian
Paralegal Profession
Empowering people through legal knowledge and education ought to produce a significant
improvement in their access to justice. New problems will emerge, however, if these developments
are not met with by adequately prepared government and law enforcement agencies, whether at
the national or regional levels. Legal empowerment must be accompanied by improvements in
policy, bureaucratic cultures, and funding, so that new opportunities do not simply give birth to new
frustrations. This is why community-based legal empowerment requires recognition of and support
for legal aid, along with development of the paralegal profession. Recognition provides the legal
basis for all further empowerment.

Guaranteeing the rights of all people, particularly the poor and marginalised, to legal aid will require
the fulfilment of several conditions. First, the formation of a solid legal foundation that guarantees
access. The right to legal aid is not yet recognised in the Constitution nor in any other high-level legal
instrument. Presently, the only mention of legal aid is contained in policies relating to professional
advocates: Law No. 18/2003 on Advocates, and Government Regulation No. 83/2008 on Conditions
and Procedures for the Provision of Free Legal Aid.

In the context of these regulations, free legal aid refers specifically to an obligation on the part of
every advocate to provide aid (whether within or outside of the court) as a matter of professional
duty (pro bono publico). The concept of pro bono publico, however, is quite different from that
of access to justice. Pro bono publico is a matter of professional social responsibility, limited to
legal aid provided in the wake of a dispute. Legal aid as access to justice, on the other hand, is
concerned with people’s legal empowerment as a means of improving overall social welfare. Legal
aid, in the access to justice context, need not wait until a dispute has already emerged. While the
concept of pro bono publico may therefore relate incidentally to increased access to justice, legal
aid for the poor is another matter. This will require recognition by the Constitution and in a legal
framework that establishes, among other matters, mandatory state-allocated funding.104 Organising
an effective legal aid system will also require mechanisms for financing community and university-
based programmes. This can be done through an endowment fund, similar to that employed by the
Biodiversity Conservation Foundation.

Government support for the paralegal profession will also serve to strengthen access to justice.
Paralegals serve on the front lines of community legal aid and education. Nearly all legal empowerment
and advocacy programmes maintain a paralegal system for the particular sectors in which they operate,
e.g., women’s issues, labour, agriculture, fisheries, urban poverty, street vending, etc. As paralegal
services have generally been sporadic and sectoral, however, they should be made comprehensive
and multidimensional. All paralegals should be able to provide service in legal education, support for
social organisations, and case management. They should also possess skills in mediation and other
alternative dispute resolution methods.

Benefits to be gained from the development of the paralegal profession include the following: (i)
addressing problems of access, since paralegals generally live in the communities they serve; (ii)
addressing problems of sustainability, since, unlike state-centric approaches, paralegals can maintain
their function without the time, geographic, and budgetary constraints of government servants; and

172 National StrategY ON access to justice

(iii) addressing problems of pedagogy. Given proper training and support, paralegals will occupy an
ideal position to translate legal concepts and educational materials into language easily understood
by their communities.

4.3 Improvements to Legislation and Budgetary

Politics Supporting Access to Justice
As noted above, several obstacles remain in the development of legislation. First, Indonesian
legislation often fails to reflect the aspirations of the people, because it is created in a process that is
neither transparent nor participatory. Law No. 10/2004 on Law Making provides for public input in
the legislative process, but in practice, this participation is merely a formality.

Second, harmonisation and synchronisation of laws and regulations remains urgent on both the
vertical and horizontal planes. Laws and regulations must be harmonised with the fundamental
principles enshrined in the Indonesian Constitution. These include the principles of democracy, the
rule of law and the continuing progress of development with due regard for the environment. State
efforts to set standards for the drafting of laws and regulations at both the central and regional levels
must be developed and strengthened. The State should also set standards for harmonisation of legal
and regulatory content.

Third, the practice of regulatory and legislative impact assessment (RIA) – with reference to economic,
social, cultural, and political impacts – must be widened in Indonesia. The Standards for Study
of Legal and Regulatory Impacts formulated by the Secretary General of the National Parliament
should be publicised and implemented in all legal and regulatory processes. Even before a new
piece of legislation or regulation is approved, there should be research into its impacts, particularly
on the lives of the poor and marginalised. This will allow for the prevention of harmful excess of
legislative/regulatory interventions. Ensuring the quality of the legislative process will require the
Government’s and Parliament’s decisiveness to take up responsibilities including the following:
1. Standardised academic review of all draft legislation;
2. Public consultations as an essential part of the legislative process, with procedures detailed and
enforced by law and regulation;
3. Development of policies on the methods of legal harmonisation—vertical, horizontal, and
substantive;
4. Development of policies on legislative/regulatory impact assessment methods that can be
integrated into academic review;
5. Strengthening of the role of the Constitutional Court and disseminating its role in reviewing the
constitutionality of laws, as well as the role of the Supreme Court in reviewing the consistency of
regulations with relevant higher level regulations.

Access to justice requires affirmative strategies for the public at large, and particularly for poor and
marginalised people seeking justice. Legal aid services, for example, require the political, economic,
and human resource commitments of the State. Current budgetary policy with regard to legal aid must
be improved both qualitatively and quantitatively. Legal aid must be compulsory, free of charge, and
accessible. Budget allocation for legal aid must be aimed at the poor and marginalised, so that they
need not fear the violation of their rights due to discrimination on the basis of poverty. At the regional
level, funding for legal aid should be provided as a set percentage of regional government budgets.

National StrategY ON access to justice 173

Improving access to justice will therefore require improvements to the fiscal capacity of poor and
underdeveloped regions so that their social needs can also be met. There should also be greater
attention paid to imbalances in budget allocations that prioritise government interests over social
interests, particularly those of women, children, the poor, and the marginalised. The principle of
serving people’s interests must be maintained in the formulation of budgets. The initiative of women’s
groups in promoting participatory gender budgeting should be expanded so that central and regional
budgetary processes take account of all the poor.

4.4 Formulation and Enforcement of Minimum

Service Standards for Public Service
One of the problems identified relating to the obstruction of access to justice within the eight groups
of issues is the low quality of public services. Other than limited capacity and capability of current
resources, either human, institutional, even financial, there remain substantive problems concerning
the functions and structures which create difficulties for the society to access such services.

The issues of capacity and capability of human resources in public services span from limited
knowledge and ability; disregard for the principles of law, human rights, and justice; to insensitivity
to social and cultural norms. Institutional problems include inconsistent procedures, inconsistent
application of policy, and disregard for regulation altogether. Such limitations impact every one of
the principal challenges discussed in this national strategy.

In both structure and function, public services have been oriented more toward a model in which
people serve the State rather than one in which the State serves the public. Poorly run public services
do not receive the trust and respect of the public. Often there is no clear sanction on public service
officials who violate the demand for quality services, and there is no firm guarantee of people’s rights
to public services in the first place.

The government’s first priority, therefore, should be to formulate new regulations and review all
current regulations on minimum standards of public service while acting to ensure vigorous
enforcement.

This strategy is intended to impact on both the government and the people receiving its services.
Based on the experience of many advanced countries, minimum service standards are the most
effective tool in guaranteeing the fulfilment of citizens’ rights. Ideally, the minimum service standard
is provided on the basis of a human rights-based approach. This approach allows for the identification
of every step in the process of public service provision, the most common rights violations associated
with that process, and the best methods for anticipating and preventing these violations. From the
government’s perspective, formulation and implementation of service standards will contribute to
the fulfilment of all the requirements of the central and regional governments, as instructed by the
Law on Regional Autonomy, Government Regulation No. 65/2005, and Government Regulation No.
38/2007. The minimum service standards will also clarify the budgetary requirements for service
provision. Minimum service standards should guarantee participation so that the public can assume
an active role in monitoring performance.

174 National StrategY ON access to justice

4.5 Improving Complaints Mechanisms and
Ensuring Just Resolution/Recovery for
Those Harmed by Public Services
Methods for expressing grievances, resolving disputes, and recovering losses constitute an important
element of access to justice. In the context of modern governance, government broadly refers to a
state institution that functions to serve society. This is based on a model of state activity in which the
people surrender a share of their rights to the administration of the State and agree to carry out certain
responsibilities, such as paying taxes. In return, the government serves and administers to the rights
of the people in a welfare state. When this State is negligent, allowing its people to be harmed in the
pursuit of their rights, the State must prepare a space in which the people deliver their complaints.
The State guarantees that these are heard and addressed, and that there is a method by which the
claim holder can seek resolution and restitution in an integrated system.

It must be recognised that in Indonesia the model of government outlined above is far from an
empirical reality. The private sector – private banks, for example – has been much more active in the
establishment of complaint mechanisms than the State. In Indonesia, the practice of good corporate
governance has advanced much farther than that of good governance.

A public complaints mechanism that is able to deal with the complaints of the poor and marginalised
will require the following elements: (i) public knowledge of government institutions for handling
complaints and grievances of those harmed by public services; (ii) simple procedures that are easy to
access; (iii) guarantees on the part of the government to handle complaints quickly, and to keep the
complainant informed of the status of his or her complaint; and (iv) concrete steps on the part of the
complaints handling body to resolve complaints whether in the form of disputes (between person(s)
and the State) or general grievances (requests for improvement of public services). There can be no
access to justice without such mechanisms, as justice depends on having an effective channel for
public grievances.

An effective and clear method for addressing complaints, and for instituting effective reconciliation
and restitution, is the final decisive link in the strategies presented by this National Strategy on
Access to Justice. For the public to benefit and the State to provide effective services based on access
to justice concepts, the public complaints mechanism must advance in step with the normative law
framework, and the people’s awareness of their rights.

Over the next five years, the government should prioritise the following strategies to strengthen
the role of the Ombudsman: first, raising awareness of Law No. 37/2008 on the Ombudsman of
the Republic of Indonesia among government institutions and civil society; second, strengthen the
institutional capacities and geographic reach of the Ombudsman; and third, improve supervision,
monitoring, and provision of sanctions.

First, the existing normative legal framework, particularly Law No. 37/2008 on the Ombudsman of
the Republic of Indonesia, should be reinforced with regulations for implementation so that effective
actions can be taken to prevent and end maladministration by government officials.

Meanwhile, the apparatus (including Minister of State Apparatus Decree No. 63/2003 on General

National StrategY ON access to justice 175

Guidance for Public Services, Minister of State Apparatus Decree No. 25/2004 on General Guidance
for Compiling an Index of Public Satisfaction, and Minister of State Apparatus Decree No. 26/2004
on Technical Guidance for Transparency and Accountability in the Management of Public Services)
must be strengthened and elevated to the level of law and government regulation. This will allow
departmental and non-departmental government agencies to implement these policies as a matter of
legal obligation, rather than as the ”appeal” of yet another ministry. It will also allow the public to
see that the government and the Parliament are serious in their desire to provide access for remedies
to those who have been harmed.

In order to achieve success, these efforts should also be publicised via NGOs representing social
interest in public services. Civil society support is extremely important, since the legislative process
requires more than simply the participation of the legislative and executive branches. With the support
of civil society, the Draft Law on Public Services currently before Parliament should be brought to a
successful vote. Public support should also encourage the government to complete inter-departmental
discussion regarding the Draft Law on Government Administration. Despite long discussions, the
draft has yet to be submitted to Parliament. The bill is very important for ensuring that administrative
decisions that impact the lives of many do not violate principles of good governance (algemene
beginselen van behoorlijk bestuur or general principles of proper administration).

Second, effective implementation of the preceding policies should be measured by a variety of

indicators, including the establishment of regional offices representing the Ombudsman. The
government must therefore support the institutional capacity of the Ombudsman of the Republic of
Indonesia, in part by supporting the development of simple systems and procedures that are easily
accessible and guarantee the best efforts for resolution and restitution.

That second strategy links directly to the third strategy, by which the Government should prepare
standing procedures for clear, vigorous, and transparent monitoring, supervision, and provision of
sanctions against those guilty of maladministration and/or violating minimum service standards
while in the service of state institutions.

4.6 Empowering and Strengthening Community-

Based Justice Systems
The poor and the marginalised do not seek justice merely through formal mechanisms, but also
through informal procedures based in the community. Dispute resolution, for example, is often much
more effective in producing satisfying results when it takes place at the community level (whether
by customary, village-based, or other kinds of procedure). Nonetheless, community justice systems
are capable of violating people’s rights – particularly the rights of women, children, and the poor –
and they often do not take adequate consideration of the natural environment. The effectiveness of
a community-based justice system in providing protection to the poor and marginalised depends on
power relations within that community, as well as community leaders’ understanding of democratic
principles, human rights, and environmental protection.

Community-based dispute resolution mechanisms must receive the legal and financial support of the
government. Weaknesses in protecting the human rights of the poor and marginalised must be dealt
with by advancing the knowledge and understanding of community leaders and providing space for

176 National StrategY ON access to justice

those who have been harmed to report abuses of political and cultural power in informal mechanisms.
Civil society groups should improve the facilitation for the poor and marginalised in obtaining justice
from community-based systems.

The six strategies outlined above are necessary conditions for accomplishing the successful resolution
of the eight challenges addressed in the National Strategy on Access to Justice for Indonesia: legal
and judicial reform, legal aid, local governance, land and natural resources, women, children, labour,
and the poor and marginalised. Therefore the National Strategy and Action Plan for Access to Justice
is an articulation of the six main strategies and responsive programmes to the eight issues on access
to justice faced by the Indonesian society, particularly the poor and marginalised.

National StrategY ON access to justice 177

 APPENDIX - 1
178
NATIONAL STRATEGY ON ACCESS TO
JUSTICE – BY SECTOR
SECTOR FINDINGS
Legal and Judicial Reform • Insufficient harmonisation of laws and regulations
• Many cases of corruption and ethical violations
by law enforcement officials (in the police, state2) Development of formal legal education with a social justice perspective to
attorney’s offices, courts) harm public trust
• Continued weakness of external monitoring by the
Police Commission, Prosecutorial Commission and
Judicial Commission 3) Improvements to the legislative and regulatory process, emphasising
• Obstruction of public participation in reform due
to insufficient information and legal protection;
inadequate public consciousness
• Lack of serious concern for people’s efforts at
obtaining justice through customary mechanisms
and mediation
Legal Aid • No existing law on legal aid, and inconsistency in
the implementation of those regulations that do
exist
National StrategY ON access to justice
• Weakness of the formal education system in
encouraging critical thought on fundamental social
issues
• Civil society based legal aid activities cannot
fulfil total need for legal aid without government
financial support
RECOMMENDATIONS
1) Elaboration of the meaning of ‘rule of law’ in Indonesia, based on the
Pancasila and Indonesian Constitution
produce legal professionals with integrity and sensitivity to the poor and
marginalised, and support for educational institutions to take a more active
role in community education and monitoring of law enforcement
transparency and the participation of all stakeholders; improvements to the
substance of the law through legal harmonisation (between laws, in relation
to the Constitution, and in relation to the principles of human rights)
4) Strengthen the reform agenda of law enforcement agencies - including
monitoring agencies - to increase professionalism and professional ethics in
the police, state attorneys’ offices, and the courts
5) Improve public knowledge of and participation in the formation of policy and
the monitoring of its implementation
1) Creation of a comprehensive legal aid system, including: (i) laws
guaranteeing access to legal aid and free legal services for the poor; (ii)
development of institutional and human capacities; (iii) increase in funding
for the promotion of access to legal aid; (iv) development of the capacity of
paralegals as an essential element of social empowerment; (v) development
of legal education that encourages implementation of the legal aid
mechanisms, and; (vi) recognition of efforts, so as to motivate and capture
the interest of a new generation of legal aid activists
2) Guarantee the constitutional rights of the poor to fight for and defend their
legal rights without discrimination on the basis of poverty
3) Guarantee legal aid reaches the poor - not simply the rich and powerful
 SECTOR FINDINGS
Local Governance • Budget inefficiencies due to poor administration 1) Streamlining to improve bureaucratic efficiency and professionalism
in local governance
• Poor use of decentralisation funds
• Ineffective deconcentration and implementation
of aid
• Rapid expansion of regions
• Poor quality of local regulations
Land and natural resources • Overlapping and contradictory laws and
regulations
• Unsatisfactory legal norms for recognition,
protection and restoration of rights to the poor,
indigenous and marginalised
• Legal development paradigm that ignores
social context in the framing and enforcement
of legislation
• Lack of designated institutions for resolving
land and natural resource conflict
• Insufficient mechanisms for environmental
rehabilitation promising health, natural
resources and improvement to the social
welfare of the poor and the marginalised
National StrategY ON access to justice
179
RECOMMENDATIONS
2) Harmonisation of and improvements to the quality of local policies based on
principles of transparency, participation and accountability
3) National and regional policies for optimal use of state budget funds
4) Structuring and improvement to the quality of regional expansion
1) Development of an integrated, holistic legal and policy framework based in
social justice and environmental protection; improvement to the legislative/
regulatory process; encouragement of greater participation on the part of the
poor, the indigenous and others who benefit from natural resources
2) Harmonisation of land-use and licensing policies between centre and region,
guaranteeing the poor and the indigenous their rights to access and benefit from
land and natural resources
3) Creation of mechanisms for resolution of land and natural resource-related
conflict able to protect the rights of the poor and marginalised; transformation of
conflict into partnership between various stakeholders
4) Coordinated and thorough implementation of agrarian reform
5) Recognition and protection of poor and marginalised peoples’ rights to land and
natural resources
6) Improvement to the quality of public services and grievance mechanisms
7) Rehabilitation of the physical and social environments in which the poor and
marginalised live, and upon which they depend for their livelihoods
180
SECTOR FINDINGS
Women • Minimal understanding of and sensitivity to
gender in formal institutions
• Obstacles to poor and uneducated women in
obtaining and defending their rights before the
law, including the courts
• Lack of women’s perspectives and disregard
for women’s experiences in decision-making
structures - including at the local level -
resulting in legislation and policy that takes
insufficient account of women, particularly in
budgetary policy
• Similar problems in informal justice procedures,
where women are prevented from obtaining
justice by strong patriarchal cultures
Children • Insensitivity to and poor understanding of
children’s rights by law enforcement officials
and service providers
• Weakness of structures and mechanisms for
protection of children before the formal and
informal justice systems
• Poor knowledge of child protection among the
public, and insufficient legal empowerment
for children, leading to children’s inability to
demand respect for their rights
National StrategY ON access to justice
RECOMMENDATIONS
1) Review of laws and regulations at the national and local levels that reflect bias
against women
2) Involvement of women in legislative and budgetary decision-making processes
that take account of the needs and experiences of women (“gender budgeting”)
3) Support for an integrated criminal justice system handling cases of violence
against women with coordination of law enforcement, relevant government
agencies and concerned NGOs
4) Improvement to law enforcement’s understanding of women’s rights to justice
5) Establishment of a gender perspective in university law education
1) Integration, development, and strengthening of arrangements for the rights and
protection of children accompanied by programmes and budget allocations
2) Changes to the justice paradigm to emphasise restorative justice in the interests
of children
3) Strengthening of the legislative process with mechanisms for monitoring and
evaluation
4) Improvements to legal and social empowerment ensuring the maintenance of,
respect for, fulfilment of and protection of children’s rights
 SECTOR FINDINGS
Labour • Inadequate employment causing growth of
migrant labour and informal sectors
• Indonesian labourers can face much adversity
abroad, including abusive treatment, rape,
suicide, and slavery. The protective system
does not yet acknowledge migrant workers in
the formal sector, neither at the national level
nor in international instruments
• Increase in the number of child workers due to
low wages and submissiveness
Poor and Marginalised • Justice for the poor is not merely a technical
matter of law, but a socio-political problem
• The legal paradigm must change to become
one of social justice, in which legal reform
and justice serve to protect economic, social
and cultural rights of the poor and improve
their bargaining positions so that they may
obtain justice through formal and informal
mechanisms
National StrategY ON access to justice
181
RECOMMENDATIONS
1) Completion of a legal and regulatory framework for the protection of child and
migrant labourers
2) Improvements in the quality of protection, placement and complaints
mechanisms for workers
3) Acceleration of compensation in the cases of workers who have suffered
violence
4) Increased access to remittance services for migrant workers
5) Development of a strategy to raise legal consciousness among workers
1) Changing the educational paradigm from one of legal formalism to one that
emphasises social justice and the people’s experiences in seeking out justice
2) Addressing problems of reduced access due to geography and limited
information by supporting the development of a paralegal profession
3) Government and non-government institutions integrate their efforts to improve
access to justice by way of various community empowerment programmes
already active in various social sectors - including health, education, and clean
water – and economic and community empowerment programmes such as the
National Community Empowerment Programme (PNPM).

182
STRATEGY
Changes to the legal development paradigm and the
role of legal education in Indonesia
Recognition of and support for legal aid activities;
development of the legal aid profession
Improvements to legislative and budgetary politics
that support access to justice
Formulation and enforcement of minimum service
standards in the provision of public services
National StrategY ON access to justice
MAIN STRATEGIES
GOALS
• Article 1(3) of the Indonesian Constitution (third revision) emphasises that Indonesia is governed under a rule of law;
this must be elaborated so as to establish just what sort of rule of law is desired
• Strengthen socio-legal perspectives in law curricula
• Expand critical legal education in the community
• Build a solid legal foundation for the provision of legal aid to the poor and marginalised. Advocate a constitutional
right to legal aid for the poor, and issue specific laws as a basis for the allocation of state funds in legal aid-related
programmes
• Promote the responsibility of every advocate to provide legal aid (both in and out of the courtroom) as a component
of professional service (pro bono publico)
• Promote the paralegal profession (institutionalise a paralegal “focal point,” training curricula, and a code of ethics)
• Consider the establishment of an endowment fund for legal aid to the poor on the model of the Biodiversity
Conservation Foundation
• Support revision of Law No. 10/2004, strengthening public participation in the process of framing legislation, legal
harmonisation, and enforcement of Regulatory Impact Assessment (RIA)
• Create guidelines on legislative harmonisation
• Strengthen and implement the guidelines on RIA
• Allocate regional budgets for legal empowerment to the poor, including legal aid
• Create minimum standards to monitor the performance of government-provided public services
• Review all laws and regulations related to public services with the aim of suggesting necessary revisions
• Support the issuance of a Law on Government Administration that will provide for the principles of good
administration (algemene beginselen van behoorlijk bestuur) including care, transparency, and accountability in
the decision-making process, consideration of all relevant factors and interests before decisions are reached, and
decisions made for just cause (all decisions taken for appropriate legal causes, with reasoning accessible to all)
• Support the issuance of a Law on Public Services, including minimum standards for public service
 STRATEGY
Strengthening of grievance mechanisms and
resolution/restitution procedures for those who
have suffered due to public services
Strengthening and empowerment of community-
based systems for justice
National StrategY ON access to justice
183
GOALS
• Strengthen the role of the Ombudsman (based on Law No. 37/2008 on the Ombudsman) in the public grievance
process as it pertains to government administration
• Support the establishment of regional Ombudsmen
• Promote informal justice systems, particularly dispute-resolution mechanisms based on universal human rights
principles
END NOTES
1
See Law No. 17/2007.

2
National Development Planning Agency and United Nations Development Programme, Justice for All? An
Assessment of Access to Justice in Five Provinces of Indonesia, UNDP: Jakarta, January 2007.

3
Ibid.

4
Ibid.

5
National Development Planning Agency and United Nations Development Programme, Project Document:
Legal Empowerment and Assistance for the Disadvantaged, Jakarta: UNDP, July 2007, p. 24.

6
Ibid, p. 8. See also National Development Planning Agency and United Nations Development Programme,
Justice for All? An Assessment of Access to Justice in Five Provinces of Indonesia, Supra note 1, pp. 45-48.
Major themes were chosen based on interviews with disadvantaged social groups and their own conceptions
of injustice in the economic and social spheres.

7
See Mauro Cappilletti, J. Gordley and E. Johnson Jr., Toward Equal Justice: a Comparative Study of Legal
Aid in Modern Societies, Milan and New York: Giuffre/Oceana Publications, 1975, p. x.

8
These guarantees are contained in legal instruments, including The Indonesian Constitution of 1945, Article
28(D) and 28(I), and the Universal Declaration of Human Rights 1948, paragraphs 7 and 8.

9
The Centre for Study of Agriculture and the Regions, Gadjah Mada University, National Development
Planning Agency, Keadilan untuk Semua? Sebuah Penelitian Akses kepada Keadilan di Lima Propinsi di
Indonesia (Justice for All? Research into Access to Justice in Five Indonesian Provinces), Jakarta: Bappenas
and UNDP, 2006, pp. 3-5.

10
Commission on Legal Empowerment for the Poor, Making the Law Work for Everyone, 2008, Vol. I, supra
note 6, p. 1.

11
International Covenant on Civil and Political Rights (ICCPR) of 1966, Articles 2, 3 and 26, as ratified by the
Indonesian government through Law No. 12/2005.

12
Mauro Cappelletti and Bryant Garth (Eds.), Access to Justice: Book I, supra note 1, p. 48.

13
Ibid., pp. 49-52.

14
Ibid., pp. 6-7.

15
Ibid., p. 6.

16
Referred to in UNDP (n.d.), Access to Justice Practitioner’s Guide, 2005.

17
Stephen Golub, “Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative,” Rule of Law Series,
Democracy and Rule of Law Project, Number 41, 2003. References also found in UNDP, Programming for
Justice: Access for All – A Practitioner’s Guide to a Human Rights Based Approach to Access to Justice,
2005. Also see World Bank Group notes on the “Workshop on Legal Services for the Poor, volume I,”
Washington DC, April 2003.

184 National StrategY ON access to justice

18
Stephen Golub, “Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative,” Rule of Law Series,
Democracy and Rule of Law Project, Number 41, 2003. References also found in UNDP, Programming for
Justice: Access for All – A Practitioner’s Guide to a Human Rights Based Approach to Access to Justice,
2005. Also see World Bank Group notes on the “Workshop on Legal Services for the Poor, volume I,”
Washington DC, April 2003.

19
Supra note 4.

20
UNDP, Access to Justice Practitioner’s Guide, 2005

21
Partnership for Governance Reform in Indonesia, Consolidating The Rule of Law In Indonesia: Restoring
Public Trust Through Institutional Reform, Partnership for Governance Reform in Indonesia, 2004.

22
Syariah-inspired policies and regulations in South Kalimantan, such as the Regulation on Friday Prayer, the
Regulation on Ramadhan, and the Regent’s Decree on Women Civil Servants Wearing the Jilbab are felt
to violate the rights of certain social groups. The same is true of the regulations on retribution that create
“doubled obligations.” Mining rights policies in Morowali, Bolang Mongonduuw, Sangihe and East Halmahera
districts also harm local populations.

23
As delivered to the National Conference on Ending Corruption (referred to below as KNPK), December
2007.

24
www.kpk.go.id, Annual Report 2008, KPK.

25
Annual Report on Policing 2007.

26
Report on the Progress of Ending Corruption in the Indonesian National Police, 2006.

27
Ibid

28
Tackling Corruption, Transforming Lives, 2008, UNDP.

29
Global Corruption Barometer, 2006, Gallup International for Transparency International (TI).

30
Report on Three Years of the Judicial Commission, 2005-2008.

31
This section is based on the position paper of a coalition of NGOs including KRHN, LBH Jakarta, PGR on
corrections facilities, 2008.

32
One factor in the creation of a Congress of Indonesian Advocates was the dissatisfaction of advocates with
the sanctions imposed by PERADI.

33
http://www.ri.go.id/id/index.php/index.php?option=com_content&task=view&id=5644&Itemid=701, 2007

34
Results of the National Strategy on Access to Justice public consultations in Makassar, 27-29 August 2008.

35
Ibid.

36
Ibid.

37
The Judicial Commission has networks in Palu and Ternate, but these remain ineffective because of an
inability to access court information.

38
Whistleblower is the popular term for someone who reports corruption, maladministration, or violence in his
or her place of employment.

39
Results of the National Strategy on Access to Justice public consultations in Makassar, 27-29 August 2008.

40
Letter from the head of the Criminal Investigation Unit of the Indonesian National Police to the National Chief
of Police Indonesia (Letter No. B/345/III/2005/BARESKRIMO) on support for witnesses.

41
See DUHAM, Paragraph 8 inter alia paragraph 9; ICCPR Paragraph 26.

National StrategY ON access to justice 185

42
See GA Res. 40/33 of 29 November 1985, art. 15.1.

43
See, GA Res. 3447 (XXX) of 9 December 1975, art. 11.

44
1945 Constitution, Articles 1(3), 24(1), 27(1), 28D(1), 28I(1,5), 30(4).

45
Law No. 39/1999 Article 3(3). Also see Articles 4 and 5(1).

46
1945 Constitution Article 28I(4); Law No. 39/1999 Article 8.

47
See Presidential Regulation No. 105/2007 on 2008 National Budget Details for Justice and Human Rights
sector.

48
The Indonesian Legal Aid Foundation in collaboration with legal assistance organisations, the Supreme
Court, and with support of European Union, held Public Forums in Padang (20-21 November 2006),
Makassar (18-19 December 2006), Surabaya (5-6 February 2007), Denpasar (19-20 February 2007), and
Jayapura (4 March 2007), with the theme of “Improving Understanding and Community Access to the Legal
and Judicial Systems.”

49
This new paradigm in state management (based on providing the widest space possible for community
participation in and ownership of development) is not synchronised with the design of laws and regulations
that feature the state as primary actor.

50
According to a KPPOD study, 31% of 1025 regional regulations on taxation potentially distort economic
activity. In Indonesian bureaucratic practice, many such regulations are taken as opportunities by government
functionaries and taxable subjects (particularly business people) to carry out illegal transactions thus avoiding
tax. Furthermore, national regulations allow for the discretion of regional governments in granting special
dispensations to taxable subjects, thus rendering policy even more vulnerable.

51
Communities in and around forest areas tend to understand the exploitation of forest wealth - natural
swallows’ nests for example – as an economic right without the requirement of any further licensing by
regional governments. Governments, however, require not only licensing, but also retribution (local taxes)
for resources, etc. The same is true in the case of customary land, the control/ownership of which often
comes into conflict with positive law.

52
The concept of bureaucratic reform requires comprehensive conceptual change, as suggested by Professor
Sofian Effendi in the context of the revision of Law No. 32/2004 on Chapter Regional Apparatus.

53
‘Marginalised’ refers to those people who enjoy limited access to participate in decision-making on matters
of local development. In many cases, poverty is the result of marginalisation, although in other cases the
two phenomena can be separate. Adat (customary) societies and women can escape poverty, but in many
instances nonetheless remain marginal to decision-making on matters of land and natural resources.

54
Deforestation in the period 2000-2005 has declined from a rate of 2.83 million acres per year (1997-2000) to
1.09 million acres per year. However, there are still 15 million acres of forest land whose status remains critical
(KLH. 2008. Status Lingkungan Hidup Indonesia 2007. Jakarta: KLH.). River water pollution is widespread.
In 2007, 50% of water in 33 rivers of 30 provinces were undrinkable. In the mining sector, reclamation efforts
remain imbalanced with the opening of new mining areas. Data from the Department of Energy and Mineral
Resources in 2006 reveal that of the roughly 82,000 acres of land opened for mining, only 22,890 acres
have undergone reclamation. Meanwhile, massive extraction of coal and gas has occurred within the past
five years. In 2006, for instance, national coal production was 16.3 million tonnes per day, but that number
increased by 8% the following year, and is expected to increase much further with the grant of new licenses.
These extraction policies have become a major threat to national energy security as Indonesia’s fossil fuel
supply (including coal) remains comparatively limited. For example, Indonesia retains only 1.98% of the
world’s coal reserves (KLH, 2008. Status Lingkungan Hidup Indonesia 2007. Jakarta: KLH).

55
One World Bank publication, for example, states that in the year 2000, 50-60 million villagers lived in or
around forest areas; 20% of these people were classed as poor (World Bank, 2006).

56
In 2007, 2810 cases of land conflict were reported to the National Land Agency. These cases are thought to
have involved 607,986 hectares of land (Winoto, 2007). In 2001, The Consortium for Agrarian Reform noted
1,475 cases of land conflict involving 2,277 villages spread out across 2.5 million hectares of land. Most of
these conflicts took place over plantation land (Fauzi, 2005, pp. 104-105). In and around forest areas, the

186 National StrategY ON access to justice

 cases of conflict increased between 1997-2007. Most of these conflicts arose as a result of local people’s
limited access to forest land (Wulan, dkk, 2004, pp. 3-5).

57
Many legal reforms, policies and development projects take up the theme of siding with the poor and
marginalised. Nonetheless, the theme can be interpreted in various ways; a clear definition is necessary.
In the context of land and natural resources, policies should increase and improve the assets and the
capabilities of the poor (Hobley, 2007). At the same time, Borras and Franco (2008) emphasise that land
policy reform for the benefit of the poor should understand land from a perspective that takes into account
not just the economy, but also its status as a source of power and welfare for the poor. Policies to protect
the poor must transform the sources of welfare and power on the basis of land for the poor.

58
This commitment is in compliance with the 13th Conference Decision taken by the UN Framework Convention
on Climate Change (UNFCCC-COP 13), held in Bali, 3-15 December 2007. The Indonesian Government
has ratified the UN Framework Convention on Climate Change (Law No.6 /1994) and has become a party
to that Convention.

59
The Forestry Department is currently preparing a bill, already signed by the Minister of Forestry, on How to
Reduce Emission, Deforestation and Degradation (REDD).

60
REDD pilot projects are currently underway in Central Kalimantan, West Kalimantan and Aceh (DTE,
2008).

61
Some of these rules were changed by Law No.19/2004 on Government Convention Decree No. 1/2004,
amendments to Law No. 41/1999 on Forestry.

62
It should be noted that based on Law No. 4/2009 on Mineral and Coal Mining (which replaced Law No.
11/1967 on Principle Rules of Mining) there are already clear rules on mineral and coal reserves, although
this law has not yet been implemented by means of regulation.

63
In the forestry sector, for example, big business received an allocation of 27.5 million hectares for 2007, while
the amount of productive forest is only 10.3 million hectares. Meanwhile, allocation of forest for community-
based management under the Public Forest scheme (Hutan Tanaman Rakyat) was only 113 thousand
hectares, and the Community Forest scheme received only 8,614 hectares (Kartodihardjo, 2008. Komentar
Strategi Nasional Akses terhadap Keadilan). In the palm oil plantation sector, the size of plantation land
for private and state plantations is 3.4 million hectares while public plantations receive 2.6 million hectares
(Directorate General of Plantations).

64
Law No. 41/1999 and Law No. 11/1967 on General Mining Provision provide just one example of contradictory
legislation. Law No. 11/1967, which provides the legal basis for the issuance of mining and ownership rights,
places no limits on land area for mining. Many permits, therefore, are issued for mining exploration on forest
land. Article 38(4) of Law No. 41/1999, on the other hand, restricts open mining in protected forests. The
provision threatens the legality of certain mines on conserved forest land even retroactively. Article 38(4) of
Law No. 41/1999 was amended by Government Regulation as the Replacement of Law No. 1/2004 legalized
by the Parliament into Law No. 19/2004

65
At least 1300 villages, inhabited by 1.8 million people, currently lie on 11 million hectares of forest land. This
land is mostly used for agriculture (Kartodihardjo, 2008).

66
One example is the revision of Law No.23/1997 on Management of the Environment.

67
Speech by the Head of the National Land Agency (BPN) at National Agriculture Day celebration,
commemorating 47th anniversary of UUPA, Jakarta, 24 September 2007.

68
In the context of agrarian reform, 4R refers to registration, redistribution, restitution and recognition, see
Meinzen-Dick, dkk (2008), Pro-Poor Land Tenure Reform, Decentralization and Democratic Governance.
UNDP, Oslo Governance Centre Brief 4.

69
Borras and Franco (2008) define agrarian reform taken out on state land owned directly by the state (not yet
burdened by the matter of land rights), so that it does not cause those who control land to lose their rights
as in the case of distribution. This is different from land redistribution, where land that is already owned is
distributed among the poor and landless.

National StrategY ON access to justice 187

70
Ecocentrism is an environmental ethic that balances duties and moral responsibilities with the whole
ecological reality of mankind and nature. This ethic addresses the weaknesses of biocentrism, which sees
nature as central, and anthropocentrism, which understands humans as decisive.

71
Data from the Ministry of Environment and ICEL can be found in Kompas, 4 April 2009, “Kasus Lingkungan
Naik (Environmental Cases Increase)”.

72
See the definition of discrimination against women, Article 1, CEDAW convention, ratified by Law
No.1/1974.

73
Law No. 5/1960 on Agrarian Principles, Article 9 states the equality of men and women in access to land as
follows: “every Indonesian citizen, man or woman, has equal opportunity to access rights over land and to
take advantage of the products of land, whether for him or herself, or for his or her family.”

74
Descendence through the father’s line, as in the case of the Batak people, Balinese, those different ethnicities
of Nusa Tenggara and Eastern Indonesia, as well as the Chinese.

75
Descendence through the mother’s family line.

76
Descendence through the mother’s and father’s lines.

77
An important legal instrument during the New Order era was the CEDAW Convention (ratified by Law No.
7/1984), Law No. 3/1997 on the Protection of Children, and the Declaration on the Elimination of Violence
Against Women 1993. Since 1998, several new legal instruments have been issued, including the following
: Law No. 39/1999 on Human Rights (Article 45 notes the fundamental rights of women as human rights),
Law No. 23/2000 on Children’s Courts, Presidential Decree No. 9/2000 on Gender Mainstreaming in
National Development, Law No. 12/2003 on Elections (Article 65(1) sets a quota for the number of women
in Parliament, and Law No. 10/2008 which provides greater opportunities to women for gaining seats in
the national and regional Parliaments, Law No. 23/2004 on the Elimination of Domestic Violence, Law No.
17/2006 on Citizenship, Law No. 13/2006 on Witness Protection and Law No. 21/2008 on Elimination of the
Criminal Traffic in People, Law No. 12/2005 on the Ratification of the International Covenant on Civil and
Political Rights and Law No. 13/2005 on Ratification of the International Covenant of Economic, Social and
Cultural Rights. There are also Chief of Police Regulation No. 10/2007 on Women and Children’s Service
Units from the level of Polres up. This regulation makes clear that there must be a Special Services Room
in each of these Women and Children’s Service Units.

78
For example, perpetrators of domestic violence are asked to sign statements that they will not repeat their
crimes. This practice of law enforcement officials taken outside of court has caused an end to violence
against women in several cases. It is aligned with the desires of many women, who wish to see their
husbands end their violent behaviour, but not to see them locked in jail.

79
The Department of the Interior has already annulled 783 local regulations and one canon. It is unknown,
from among these 784 regulations, how many were harmful to women.

80
Law No 23/1992 on Health and Law no. 23/2006 on Population Administration also demonstrate significant
gender bias.

81
It should be noted that dispositions in the Revision of the Planned KUHP led to the emergence of
significant debate (ELSAM, 2005). It was stated that the Draft Law on KUHP was class and gender-biased
(Katjasungkana, 2003).

82
One example is Article 31(3) which describes the husband as “head of household” and wife as “house wife.”
This formula has consequences in the work place, where only men are understood as having families, while
working women are understood as single and do not receive family subsidies and other facilities. Article
3(2,4,5) allows for polygamy under certain conditions, which, though they appear rigorous in law, can be
manipulated in practice.

83
This has resulted in a relatively constant 11% of Parliamentary seats in the control of women, unchanged
from previous election results. This has various legislative consequences, particularly in budgetary matters,
where women’s needs go unaccounted for.

84
The nominal figure of illiterate people nationally is 16% women. According to other sources, three times
more women than men are illiterate in Indonesia, including in Papua. Out of 221 million Indonesians, 106

188 National StrategY ON access to justice

 million are women (http://www.sinarharapan.co.id/berita/0309/20/nas08.html).

85
Before there was a specific law dealing with the rights of women and children victimised by violence to
support from lawyers, psychologists and social workers, many judges do not allow women to receive the
support they desperately need. When Law No. 13/2006 on Witness Protection was issued, there were still
many judges who did not allow victims to receive legal support during court hearings. This is understandable,
since many judges are unaware of that law.

86
Focus group discussion to solicit input for the first version of this policy paper in Jakarta, 11-12 February
2008.

87
Several programmes are already operating in civil society, including the Lawyers’ Consortium, formed by
Convention Watch, University of Indonesia; Aliansi, which is composed of the National Commission on
Violence Against Women, Derapwarapsari, LBH APIK, PKWJ UI, to found an Integrated Criminal Justice
System – handling cases of violence against women; paralegal programmes in civil society, such as those
operated by LBH APIK Jakarta.

88
Such cooperation is already evident between the Government (through the National Commission on Violence
Against Women), women’s legal aid NGOs (LBH APIK), NGOs for female police officers (Derapwarapsari ),
and academics (PKWJ, University of Indonesia).

89
One example is the Legal Empowerment Program for Woman-Headed Households, conducted by the World
Bank in 2007.

90
This idea is currently being piloted in a cooperative programme involving The National Commission on
Violence Against Women, LBH APIK, Derapwarapsari and PKWJUI. See http://www.komnasperempuan.
or.id/metadot/index. pl?iid=2621 for details on the Integrated Criminal Justice System.

91
Kompas, 22 August 2008, accessed online 11 January 2009.

92
Komnas Perempuan, 2006, Catatan Hasil pemantauan awal terhadap Inpres Nomor 6 Tahun 2006 dengan
Judul Reformasi dibelenggu Birokrasi.

93
Membongkar kebijakan Ilegal dan Mitos Pembaharuan (Unpacking Illegal Policies and Myths of Reform),
Institute ECOSOS, 2008.

94
The declaration notes that oftentimes Indonesian overseas workers are not at fault for their lack of
documentation. Both the sending and receiving countries must therefore work together on these cases, as
well as on the issues listed above.

95
National Commission on Violence Against Women 2006, Notes on Initial Monitoring of Presidential Decree
No. 6/2006. Entitled Reformasi Dibelenggu Birokrasi (Reform in the Shackles of Bureaucracy).

96
Having ratified the two conventions, the Government of Indonesia is now obligated to carry out the rules of
Article 7 Convention 182: “Every member must take every necessary action to guarantee that the rules of
this Convention are enforced and implemented effectively, including rules regarding the imposition of criminal
sanctions or other types of sanction as needed.” Laws and regulations already mandate the categorisation
of types of employment that endanger health, well-being and morality for children as a part of the forms of
employment for children; categorises the involvement of children in the worst forms of employment as a
criminal offence; and formulates policies, and outlines efforts and actions for the prevention and eradication
of the worst forms of employment for children, both through preventive and repressive measures.

97
Benni Setiawan, Surya, Saturday, 9 August 2008, accessed on 31 January 2009, 14:00.

98
Strategi Nasional Penanggulangan Kemiskinan (National Strategy on Eradicating Poverty), Bappenas,
2005, http://www.Bappenas.go.id/.

99
Menciptakan Peluang Keadilan (Creating Opportunity for Justice); Report on Study of “Village Justice in
Indonesia”, Justice for the Poor Programme, World Bank, 2005.

100
Executive Summary, Memberdayakan Hukum Bagi Semua, (Legal Empowerment for All), Report of the
Commission on Legal Empowerment for Poor Peoples, UNDP Indonesia, 2008.

National StrategY ON access to justice 189

101
The United Nations defines the rule of law thus: “It refers to a principle of governance in which all persons,
institutions and entities, public and private, including the State itself , are accountable to laws that are
publicly promulgated, equally enforced and independently adjudicated, and which are consistent with
international human rights norms and standards. It requires as well, measures to ensure adherence to the
principles of supremacy of law, equality before the law, accountability to the law, fairness in the application
of law, separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness and
procedural and legal transparency” (UN Secretary General Report S/2004/616).

102
Satjipto Rahardjo, Negara Hukum Yang Membahagiakan Rakyatnya (Constitutional State that Satisfies the
People), Genta Press, 2008, p. 14.

103
Legal justice, from the point of view of legal theory: “It is a justice according to law and is justice which is
done or meted out as a result of the application of law. It may be the case that the law in question is unjust.
The consequence would be that the outcome of the application of such unjust law may not be satisfactory.
In other words, it may be regarded as unjust but it is still called legal justice. See Hari Chand, Modern
Jurisprudence, International Law Book Services, 1994, p. 257.

104
In Chile, the institutionalisation of legal aid at the national and regional levels (Public Defenders’ Office/
Defensoria Penal) is guaranteed by the Constitution as an integrated element in the reform of the criminal
justice system. In the Mexican Constitution, every state in Mexico has its own legal aid body whose expenses
are paid by the State (defensorias de oficio). These provide free services to those in need.

190 National StrategY ON access to justice

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BAPPENAS