By Masyarakat Pemantau Peradilan Indonesia (MaPPI) Faculty of Law University of Indonesia
Supported by TIFA Foundation
1. Research Method
The research method in this study aimed to see the projection of pro bono practice in Indonesia post the Law Number 18 of 2003 concerning Advocate institutionalized pro bono as an advocate’s professional obligation. It is done in a quantitative and qualitative approach in the form of questionnaires addressed to advocates and interviews conducted with the related stakeholders (Legal aid institutions, Law firms, legal aid institutions in universities, Advocates Organizations, BPHN, etc.). The data were retrieved through questionnaire both online which reached beyond java island and offline in DKI Jakarta, Bandung, Yogyakarta, Surabaya. While the interviews were conducted in March until May 2018 in DKI Jakarta, Aceh, Yogyakarta, Makassar, and Kupang. The data retrieval can be seen with chart as follows:
The total respondents participated in this survey is 302 individuals which have been categorized based on the age, sex, advocate proportion, and the year of the advocate oaths. The top list of the respondents is about 24-33 years old (63.2%), followed by those who are in the age of 34-43 years old (23.5%), 44-53 years old (6.3%), 54-63 years old (2.3%), 64-73 years old (0.3%), the rest was not answering (4.3%). The 78.1% of the total respondents is male, 19.9% is female, while the rest chose not to answer (2%). The survey also showed that the 49.7% of the total respondents work as a public lawyer, 44% as an advocate in a law firm, and 1.3% as an in-house counsel, and 5% were not answering. When it comes to the year of the advocate oaths, 78.1% respondents took the oaths in the year of 2009-2018, 9.6% in 1999-2008, 5.6% in 1989-1998, and 6.6% not answering.
According to the characteristic of the areas, this survey doesn’t depict the national condition, but can give enough illustrations of the four big cities in Indonesia. In addition, this survey is still be dominated by respondents in the age of young category, so that it has not evenly reached all the age categories of advocates in Indonesia. In terms of experience, the dominating respondents are those who have been practicing as advocates for approximately the last 10 years. This survey has not evenly reached advocates’ practice experience, but enough to give an illustration the pro bono practice conducted by advocates who are officially initiated after the Law No. 18 of 2003 concerning Advocate institutionalized pro bono as a professional obligation.
2. The Result of the Survey
The results of this survey try to describe three things, the comprehension on pro bono itself, the practice, and the respondent’s outlook.
- The Advocates’ Comprehension on Pro Bono
The survey reveals that 85% of the respondents defined pro bono as a legal assistance given both in litigation and non-litigation field to under-poverty society for free/charge-free/no compensation/no honorarium, while the rest described pro bono as a (a) a legal assistance for those who need; (b) a professional responsibility/obligation of advocate; (c) a legal assistance conducted voluntarily; (d) a structural legal assistance for those who need; (e) a legal assistance for those whose court fees are borne by the government, legal assistance for the poor through legal aid institutions, etc.When asked what types of pro bono they’re familiar
with, litigation and non-litigation was the top response (85%), followed by legal assistance in judicial process (34.7%), legal consultation (27.1%), legal education/socialization (7.9%), legal advocacy (6.2%), documents making (4.8%), and the rest is accounted for legal aid post (posbakum), class action, charge-free in advocate services, transportation, and no type.
When it comes to which regulation pro bono ruled under, over a half of respondents stated it is ruled under the Law of Advocate (67.6%), the Law of Legal Aid (43.6%), the Supreme Court Regulation number 1 of 2014 (7%), Indonesia criminal procedure code/KUHAP (5.2%), Government Regulation Number 83 of 2008 (4.9%), code of ethics/conduct for advocates (4.5%), PERADI regulation (2.4%), not really knowing, local regulation, and Government Regulation (1.7%), and the Regulation of Ministry of Law and Human Rights concerning legal aid (1.4%).
- The Practice of Pro Bono
Most respondents stated they have experience in conducting pro bono (84.8%), while the rest admitted they never conducted pro bono yet. Over than 67.2% of respondents claimed they do pro bono every year, 31.1% do not, and 1.7% not answering.
The respondents from advocates in law firms mostly reported doing pro bono for >50 hours per year (24.8%), 31-50 hours (16.2%), 11-30 hours (10.3%), 0-10 hours (8.5%), not calculated (21.4%), others/unit of cases (18.8%). While the respondents from Legal Aid Institutions mostly also do pro bono for >50 hours (31.1%), 31-50 hours (19.7%), 11-30 hours (4.9%), 0-10 hours (0%), not calculated (23%), and others/unit of cases (21.3%).
When it comes to the regulations of pro bono in their organizations, most respondents stipulated tha there is a regulation in their organizations (62.9%), no regulation (34.1%), not answering (3%). About the reporting system, 51% stipulated that there is no reporting system, 45.7% said the opposite statement, while the rest is not answering. Still talking about the reporting system, most of respondents who have experienced pro bono (254 respondents), reported about the pro bono they conducted (79.5%), the rest does not. On the other side, almost all the respondents who never conducted pro bono (39 respondents) stated they also made no report (97.4%).
The challenge of conducting pro bono
The major challenge of conducting pro bono according to the advocates in law firms is operational (29%), case handling (18.7%), time management (14%), and the society itself, for example basic kning of the existence of pro bono itself (9.3%). While the top challenges for the legal aid institutions are operational (35.3%), followed by case handling (22.4%), mileage and time management (15.5%), and hth client’s knowing (12.9%).
- The Respondent’s Outlook
As many as 72.5% of respondents stated the need of reporting system in pro bono, while 23.5% stated otherwise, and the rest chose not to answer. Those who stipulate that the reporting system is necessary claimed the backgrounds are in order to monitoring (47.2%), evaluating (21.7%), as a professional responsibility (3.2%), and data collection (9.2%). For those who do not need any reporting system stated that they do not need to publish aid (71.4%), increasing the burden (9.5%), no consequences (7.1%), nothing to be accounted to the organizations (7.1%), and it is not a mandatory (4.8%).
From the total of 302 respondents, most of them showed a very supportive attitude towards pro bono (50.3%), just supportive respondents reached 44%, the unsupportive ones reached 1.3%, the very unsupportive ones reached 2%, and the rest was not answering.
3. Suggestions and Input
- Improvement of National Pro Bono Policies
In order to fixing pro bono systems and make it well-implemented, some steps that can be taken include strengthening the pro bono oversight mechanism, integrating pro bono policies with state legal assistance to fulfill access to justice, and conducting capacity building program to instilling pro bono culture.
- Strengthening The Role of Advocate and Government Involvement
Improvement of pro bono policies must also be accompanied by strengthening the commitment and the role of the advocate organization itself. Therefore advocate organizations that have a self-regulating function must carry out their role by encouraging advocate members to be involved in providing pro bono services. In addition, the advocate profession also has a very close pattern of interaction with the government. The government has the role of balancing and controlling the advocate profession while at the same time ensuring the rights of the community to obtain legal assistance.
- Insentives for Advocates/Law Offices Who Conducting Pro Bono Service
In supporting the implementation of pro bono, it is also necessary to be supported by economic incentives for advocates or law offices, for example by increasing accreditation for legal aid organizations conducting pro bono services. The accreditation increase itself will have an impact on increasing the budget of legal aid from the government to legal aid organizations. Besides, other forms of incentives that can be given are awards / recognition for advocates or law offices.