Oleh: Alanah Garzia, Mahasiswa Universitas La Trobe, Melbourne
In many countries, individuals who struggle financially can attempt to acquire legal representation through two general mechanisms, government supported legal aid or pro bono assistance. The responsibility of providing legal aid rests on the state, whilst pro bono is often considered a professional obligation for members of the legal industry. Ideally, these two mechanisms work together to ensure that all individuals have access to justice despite one’s financial situation. However, not every country has a system in place that is truly meeting these ideals. When a comparison between Indonesia and Australia is undertaken, great differences are highlighted between just how accessible these mechanisms really are to citizens of these respective countries. Still, access to justice cannot simply be measured by how accessible these legal support mechanisms are to those struggling financially. Rather, access to justice must be measured by how accessible legal support is to multiple significant vulnerable groups such as people suffering financial hardship, members of the LGBTQ community, people living with disabilities, and indigenous people.
The financially disadvantaged
In Indonesia currently, state provided legal aid services are accessible to all citizens for criminal, civil and administrative matters. This was already a large step in the right direction for Indonesia’s legal system. Previously, courts were only required to provide legal assistance to defendants who faced offences that carried either the death penalty, a sentence of 15+ years, or 5+ years for financially unstable defendants. In practice however, legal assistance was rarely provided even in those circumstances.
Under new laws which came into effect in 2013, Indonesia’s government can accredit existing legal aid organisations and reimburse them for any free legal assistance. This differs to Australia, where single state government funded bodies provide and coordinate legal aid. The approach taken by Indonesia is administered in order to prevent budget funds from corruption – but the system is yet to satisfy public demand.[1]
Many low-income citizens are still unable to obtain legal aid due to the strict eligibility and accreditation requirements. In order to be eligible for legal assistance, an individual is required to provide a ‘certificate of low-income status’ which is usually issued by a relevant local official.[2] In some cases, these certificates can be replaced by documents or cards issued by the government to those in need of social aid, for example Raskin cards (food coupons) or Jamkesmas cards (health insurance). This low-income status is based off the national poverty line which as of 2018 sat at a household monthly income of Rp 2.1 million.[3] This is an unrealistic baseline as the minimum wage per month in Indonesia is roughly Rp 4.2 million,[4] however, the cost of a private lawyer is roughly two times tis wage. This means that despite the option of legal aid, many Indonesian’s cannot access legal assistance. This creates a vast “justice gap”[5] between the resources available to those in and the ability of these resources to meet those needs. The success of the legal aid program in Indonesia also rests on government financial and administrative support which is currently lacking. On average, each year the state is only able to reimburse roughly 6 cases per organisation.[6]
In Australia, legal aid centres are run by state governments and are available in every state or territory. Similar to Indonesia, a grant of Legal Aid may be available for family law, criminal law and some civil law matters. In order to obtain a grant of legal aid, one must meet a means test that is based off of financial statements. These eligibility requirements, much like Indonesia, tend to focus on financial hardship – meaning that these state-run legal aid services direct their focus toward financially disadvantaged members of the community rather than vulnerable groups in general. However, in order to close the “justice gap”[7] mentioned earlier, on top of their state-run legal aid services, Australia also has almost 200 Community Legal Centers that provide legal assistance to those who are not able to afford a private lawyer but are unable to meet the criteria for legal aid.
Although Indonesia’s system of legal aid attempts to protect those who cannot afford private legal assistance, there are several other vulnerable members of society that also need support in this are, but legal aid simply does not provide the necessary assistance. Some of these vulnerable groups include people living with disabilities, LGBTQ+ members, Indigenous people.
People living with Disabilities
Unfortunately, legislation in Indonesia fails to promote or protect the rights of people living with disabilities (PlwD’s).[8] PlwD’s struggle to obtain equal recognition before the law as well as equal access to justice.[9] The Indonesia government in the past has not regularly considered or consulted PlwD’s when developing new services, policies and legislation that affects them until the implementation of law Number 8 of 2016 on Persons With Disabilities, which replaced Indonesia’s Law Number 4 of 1997 on Handicapped Persons. This new legislation recognised several new protections for PlwD’s before the law, seen in Article 9 which stipulates that the right to justice and legal protection for PlwD’s includes equality before the law; the right to control their own financial matters or to appoint another person(s) to represent their interest in financial matters; the right to have accessibility in seeking justice; protection of their intellectual property rights; and more.
However, the issue lies in that PlwD’s tend to have little knowledge of these legal rights and their “willingness to access the formal justice sector is low”.[10] But perhaps where Indonesia contrasts most from Australia regarding PlwD’s in the justice sector is the lack of knowledge of and sensitivity towards the rights of PlwDs among law enforcement agencies in Indonesia. PlwDs often experience difficulty in accessing legal aid services as they cannot physically access these resources without substantial assistance.[11] This issue of accessibility of these services for PlwDs is something Indonesia must work on. Further, the court facilities and resources that are available to PlwD’s are present in several courts, however, they are not evenly distributed amongst all areas and provinces in Indonesia.
In Australia, there are varying facilities for PlwD’s located in a number of buildings nation-wide. PlwD’s may make requests to the court, where each is individually considered and the most appropriate advice, resources and suitable action is given. Australian courts are “committed to ensuring that all parties, whether they are a person with a disability or a language barrier, are afforded access to justice while navigating the Court process”.[12] Some of the services provided by the courts can assist with issues such as requiring a hearing loop; requiring regular breaks for a medical reasons; requiring an accessible courtroom due to mobility impairments; requiring that the Court engage interpreter services for deaf, hearing / speech impaired clients or a translator; and having any other special needs due to disability. In addition to these court services, there are also Community Legal Centers and specialist volunteer organisations that assist in ensuing PlwD’s gain easily gain access to justice and are able to navigate their way through the justice system.
LGBTQ+ and Indigenous people
In Australia, some Community Legal Centers and specialist volunteer organisations are specifically designed for certain vulnerable groups. For example, Australia has the LGBTQ Legal Service in Victoria, with similar organizations in other states. This organisation and those similar to it in other states are non-profit community-based legal services that provide free and confidential legal advice to their respective state residents that identify as members of the LGBTQ+ community. Therefore, the LGBTQ Legal Service relies on community support and donations to provide free legal assistance.
Australia also has the Aboriginal and Torres Strait Islander Legal Services (‘ATSILS’) which runs the same way and provides free legal advice and assistance to Indigenous people, who currently remain” the most socially and economically disadvantaged members of the Australian community”.[13] Consequently, Indigenous people are highly reliant on community legal support. Therefore, ATSILS’ play an important role in Indigenous access to justice and much like the LGBTQ Legal Service, they are distinct from legal aid in that they provide culturally sensitive services. ATSILS’ is particularly important in Australia as Indigenous Australians are found to be “less likely to seek help from mainstream providers due to a distrust of the legal system, language barriers and [their] perceived lack of cultural awareness”.[14]
Currently, there too tends to be a sense of distrust in the legal system in Indonesia, which would of course be heightened for vulnerable groups. Data shows that family is often the main source of legal assistance for 71.8% of respondents in Lampung and 54.25% of respondents in South Sulawesi, as their trust in their family members made them feel comfortable receiving assistance, even though many of the people who were asked for assistance had no legal qualifications.[15] Whilst Indonesia has some specialised legal aid organisations for vulnerable groups, it is a lack of access to these organisations that is the issue. In Australia for example, legal aid organisations that intend to target the legal assistance of Indigenous Australian’s in particular are often located in areas where there is a large Indigenous population. This could be an effective strategy for Indonesia to ensure that the specialised legal aid groups that do exist are in fact accessible to their target audience and therefore can be utilised successfully. A legal needs assessment or census survey could help identify vulnerable groups and effective areas to deploy these services.
Inaccessible pro bono
Lastly, the ineffective pro bono culture that exists in Indonesia currently means that for vulnerable groups, pro bono assistance is rarely accessible as an alternative to legal aid assistance. There are four major factors that contribute to this. The first factor addresses lawyers themselves, and a lack of knowledge surrounding the topic. Currently in Indonesia there appears to be some difficulty amongst lawyers in distinguishing pro bono work and legal aid programs. In accordance with a study conducted by MaPPI FHUI, 15% of lawyers could not differentiate between pro bono and legal aid, and only a mere 20.5 % felt an obligation to perform pro bono work.[16] Accordingly, some lawyers can be found to assume that their pro bono obligations have been satisfied once they have completed a state funded legal aid program. In practice, pro bono work that is carried out is also often reported as legal aid activities in order to be reimbursed by the state. Secondly, there is a weak enforcement of pro bono work provided by the Bar Associations. This means that sanctions for lawyers and advocates who do not implement pro bono work are scarce. Thirdly, the lack of a single unified Bar Association. The Supreme Court’s decision to recognise all Bar Associations in Indonesia rather than have a single unified Bar Association takes its toll on the development of pro bono culture. This is due to the fact that several Bar Associations are now recognised despite not having complete and capable instruments to support the growth of pro bono culture. Lastly, there seems to be a lack of trust and information amongst society. Barriers to the accessibility of pro bono services may arise due to societal misrepresentations such as that free legal assistance is below standard as it is unpaid. Further, there is a lack of public knowledge that every lawyer can be asked to undertake pro bono work, due to the image of a lawyer being an income-orientated profession.
The practice and culture of pro bono work between Indonesia and Australia differs greatly, In Australia, there exists a National Pro Bono Aspirational Target.[17] This is a “voluntary and aspirational target of at least 35 hours of pro bono legal services per lawyer per year”.[18] Incorporated legal practices, individual law firm solicitors, and individual barristers can become signatories to the target. Signatories to the Target have collectively reported almost 3.75 million hours of pro bono legal work in the 12 years since the Target’s commencement.[19] The effectiveness of this target can be analysed further through a study conducted by the University of New South Wales[20], where 25 of the largest Australian law firms were surveyed. It was found that the mean and median participation rates of pro bono work nationally was 21-40%, however, the participation rate for firms that are signatories to the target was 61-80%,[21] showing a clear increase. When it comes to the lawyers themselves, lawyers and law firms tend to feel quite obliged to undertake pro bono work in Australia. In fact, pro bono work is highly encouraged on the prospects that it promotes professional responsibility, increases job satisfaction, improves a lawyer’s or a firm’s public perception / reputation and to an extent, is seen as a responsibility to assist the community. The positive outlook on pro bono work is also reflected in the study conducted by the University of New South Wales where results indicate 92% of the firms recognised the pro bono work of lawyers in their performance appraisals; 76% considered pro bono work for promotions and advancements; 68% recognised pro bono work in salary reviews, and 68% give full billable credits (uncapped) for pro bono work.[22] The barriers to pro bono work that were indicated by these Australian firms were insufficient expertise in relevant areas of law (44%) and a lack of time (40%). Notably, 16% of firms said that there was no barrier that prevented them carrying out pro bono work. It is here you can see the stark contrast between the culture that surround pro bono work in Australia vs Indonesia.
Conclusion
In conclusion, the establishment of Indonesia’s national legal aid system was a great achievement in their efforts to ensure all citizens can gain access to legal aid. But the system is performing well below its indicated promise. In order to meet the demands of the public, national and local governments must work together to support the system. If this cannot be achieved, it will remain that only the wealthy can obtain access to justice in Indonesia and vulnerable groups will be left vulnerable assistance. While Australia’s system of legal aid run by state governments may leave out vulnerable group members who are not also financially disadvantaged, there are many other support services where they can obtain free legal aid. However, these specialist services do require more government support and funding. Perhaps addressing the lack of information regarding pro bono work in Indonesia, as well as implementing a ‘target’ to accommodate the lack of a unified bar association will facilitate accountability and responsibility of legal practitioners to fulfill their pro bono obligations.
[1] Muhammad Rizaldi, ‘Why legal aid is not working in Indonesia’, Indonesia at Melbourne [online journal], (2019), <https://indonesiaatmelbourne.unimelb.edu.au/why-legal-aid-is-not-working-in-indonesia/>, accessed 30 Feb. 2021.
[2] Rizaldi (n 1).
[4] Retrieved from: https://tradingeconomics.com/indonesia/minimum-wages.
[5] Rizaldi (n 1).
[6] Rizaldi (n 1).
[7] Rizaldi (n 1).
[8] N Colbran, ‘Access to Justice Persons with Disabilities and Government Regulation’, International Labour Organization [online journal], (2010), <http://www.ilo.org/wcmsp5/groups/public/@asia/@ro-bangkok/@ilo-jakarta/documents/publication/wcms_160337.pdf>, accessed 30 Feb. 2021.
[9] Ibid.
[10] Colbran (n 8).
[11] Colbran (n 8).
[12] ‘People with Disabilities’, Family Court of Australia [website], <http://www.familycourt.gov.au/wps/ wcm/, accessed 30 Feb. 2021.
connect/fcoaweb/family-law-matters/getting-help/disabilities/people-with-disabilities>, accessed 29 Feb. 2021.
[13] Ludlum, S., and Lawry, C., ‘Closing the Justice Gap for Indigenous Australians’, Indigenous Law Bulletin, 7/17 (2010).
[14] Ibid.
[15] MaPPI FHUI Legal needs survey.
[16] MAPPI FHUI
[17] ‘National Pro Bono Target’, Australian Pro Bono Centre [website] <https://www.probonocentre.org.au/
provide-pro-bono/target/>, accessed 29 Feb. 2021.
[18] Ibid.
[19] ‘Comparison of Government Pro Bono Provisions, Australian Pro Bono Centre [website] <https://www.probonocentre.org.au/provide-pro-bono/government-tender-arrangements/comparison/>, accessed 29 Feb. 2021.
[20] National Pro Bono Resource Centre, National Survey: Report on the pro bono legal work of 25 large Australian Law Firms (2008) <https://www.probonocentre.org.au/wp-content/uploads/2015/09/Firms-survey-report-FINAL-100908.pdf>, accessed 29 Feb. 2021.
[21] Ibid.
[22] National Pro Bono Resource Centre (n 20).