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Wednesday, June 13, 2007

LEGAL AID MOVEMENT AND HUMAN RIGHTS IN INDONESIA

1.The First Step of the Legal Aid Movement in Indonesia
The end of Indonesian Independence Revolution in 1945 brings the changes in many affairs of state. At that time, the concept of constitutional state and the constitutionalism principal obtained great conflicts from many Indonesian prominent figures which driven by Soekarno who thought that the concept arrived from liberal ideology. This case makes a direct consequence towards the weaknesses of human rights protection in 1945 Indonesian Constitution.
The Golden era of democracy and human rights during 1950-1959 apparently did not bring any changes towards human rights protection, for example, Indonesian government did not adopt Rechtsverordering (RV) but on the contrary adopted Het Indslansche Reglement (HIR) as judicial procedure prevailed in Indonesia and its justice court not Raad van Justitie but Landraad that of course HIR and Landraad had very poor guarantee towards the charges’ right protection. However, that condition was better than the period after to the present. At that time, the courts still had high integrity and independency because of the political system of the parliamentary democracy enabled strong society control so that could minimize the interfere of executive and legislative.

The period after could be say the dark era for the goal of forming constitutional state with democracy and social welfare in Indonesia. The interference of government power that clearly seen in many legal fields and government reluctant of strong organization society or independent civil society organization act towards the weaknesses of human rights protection in Indonesia.

The condition of the weak human rights protection especially for marginal society in Indonesia motivated the Indonesian Bar Association (Peradin) to form Lembaga Bantuan Hukum / Legal Aid Institute (LBH) throughout Indonesia. In the beginning of 1980’s Peradin served the forming of LBH in 12 provinces throughout Indonesia including LBH Bandung and consolidated under an umbrella organization called Yayasan LBH Indonesia / Indonesian Legal Aid Foundation (YLBHI). In the early phase of the forming, LBH got much defiance from administrator even The Restore and Order Command (Kopkamtib) – an extra judicial institution – forbid the forming of LBH throughout Indonesia. This case happened because LBH chose to oppose the administrator arbitrariness towards society and strongly positioned it self as a friend towards labor, farmer, poor town community and other marginal groups movements in Indonesia.

In the non-government organization movement history in Indonesia LBH known as the first type generation (conservative) based on philanthropy spirit in doing protection towards society. This stereotype appeared because LBH gave legal aid in pro bono publicio manner to the citizen community that protected. But the history proved that in authoritarianism phase LBH has become locomotive for democracy movements and human rights protection in Indonesia.

2.Legal Aid as a Tool Promoting Human Rights in Indonesia.
The issue of legal aid in Indonesia related to the confession of the principal constitutional state in UUD RI, that’s why the concept of constitutional state also related to human rights. However, a state based on constitutionalism should have the following criteria:

-Admission and protection towards human rights
-Free judicature and not take side, and also free from authority interference
-Legality in the meaning of law and all the forms

From the above three criteria, human rights got the first place so the law that could be the basic of a state should appropriate with the large society wish. During this time the law formed by the government and parliament never concern about the human rights principal as an ethical media and juridical forming, socialization and the validity.

Therefore, legal aid in Indonesia has strategic function related to promote human rights principal in Indonesia. At least the legal aid has three strategic functions namely:

-Service Function
Giving service towards marginal society group to gain the same chance before the law as other society groups have.
-Education Function
Giving education towards marginal society group to understand more about their rights.
-Alteration Function
Legal aid also can play positive role as a law reform media that side with marginal society.

If we see from legal aid strategic function, we can conclude that legal aid is the right that has to demand by every citizen in Indonesia, so the point is about the legal aid program that is the program to fight for standing human rights.

Therefore, legal aid not only gives service towards matters and cases that happened but also should direct to provide the form conditions for implementation effectiveness about the rights of marginal society.

The needy which pins down the biggest part of Indonesian society brings great influence towards human rights protection in Indonesia because it is not only disaster for humanity in accordance with law, politics, and economics. Should be noted that since along time justice means authority and wealthy, and this thing may caused injustice, so consequently in the implementation law will be more punch and crush the marginal society.

Therefore, legal aid not only aid in order that one can defend its rights but also means to reorganize injustice structure that happened in Indonesia through human rights promotion, so the justice can be felt certainly by marginal society.

3.LBH Bandung Experience on Human Rights Values Promotion Through Structural Legal Aid Concept

The Structural Legal Aid Concept (BHS) used by LBH Bandung in defending towards cases that are face by marginal society has become the most guidance principle in fixing the direction legal aid program in West Java – Indonesia which should has be done by LBH Bandung in the past, present, or future.

Structural Legal Aid used by LBH Bandung as a guidance principle since the early of 1980’s. Therefore, LBH Bandung has a point of view towards law case based on that structural legal aid concept.

Law case does not seen as a matter should be finished early, but also precise as an indication of deeper social conflict. For example, in the labor, live environment and land cases should be seen in macro context, that is unstable issue in allocating economic resources and hegemony conflicts towards other country.

Therefore, the step of anticipation that taken over to the law case not only bound the legal formal level, but also using legislative to provide the admission towards citizen rights, equitable law process, and refusing to authority arbitrariness.

The implication from this point of view towards job evaluation system in LBH Bandung is that the measure of success of executing legal aid program not only seen from winning or losing cases as a formal legal, but also considering other concrete social impacts resulted from executing that cases.

Legal cases that held by LBH Bandung used also as the first point for:
1.Effort to develop law function to form citizen rights has been admitted.
2.Effort institutional value and standard law through activities of awareness and publication in law field.
3.Effort to develop mechanism as an alternative to finish the law conflict that has public dimension.
4.Effort to develop critic function through justice court as a public forum.
5.Effort to contribute forming idea, reform, and law stand.
6.Effort to rearticulating the need of law for the society who feel the injustice from justice strip, bureaucracy, and other constitutional strip.
7.Effort to de-legitimate and deconstruction about the life state concept that weakened citizen position.

As a civil organization in West Java, LBH Bandung has a view that a country should protect and guarantee to fulfill civil, politics, economics, social, and culture rights and all the human freedom. In the future LBH Bandung sees that citizen should be positioned as a subject in forming equitable and supremacies law.

Therefore, the purpose of LBH Bandung directed to every effort to provide democratic constitutional state and guarantee the social welfare, in which law not only form by the compromise with modal power, but also appropriate with the need and society aspiration.

4.The Fall and Decline of YLBHI’s and Legal Aid Movement in Indonesia

The fall of YLBHI and 14 branch offices throughout Indonesia at the end of 2002 up to the present brings the important lesson for legal aid movement and other legal aid organization in Indonesia.

Legal aid movement done by LBH not only viewed again as a democratic locomotive in Indonesia. It is natural because in the beginning of forming LBH, the non government organization which against government arbitrary just very few, so that makes LBH called as democratic locomotive in Indonesia.

The name of LBH as democratic locomotive in the past, in fact has made LBH become disorientation towards legal aid program that become core competencies generally from LBH, so that the side function of law for marginal society that should be the basic services has forgotten. LBH in fact made society organization as a base function, and later LBH become wrapped around in forming many society organizations throughout Indonesia. This is not a significant mistake, but the most important lesson could be taken from the fall of YLBHI is LBH core competencies that could not take by side. Up to the present, the function of LBH in maintaining law cases toward marginal society in Indonesia cannot be forgotten and unchangeable even in the means of difficult condition often experience by LBH right now.

Up to the end of 2003 LBH Bandung still did associate law towards 24 cases involved more than 15,000 LL (about 60,000 people) throughout West Java. Typology from the cases associated by LBH includes labor, agrarian, living environment, children and law conflict, and other cases related corruption in Provincial Budget (APBD), violation of the election, and tortured. This thing proved that the function of LBH Bandung related to the core competencies that unchangeable in West Java.

Big dependency of LBH towards foreign fund also becomes the most important lesson in legal aid movement. LBH Bandung specifically wish there is a change relation between LBH Bandung with foreign fund, the changes is equitable relations and democratic. Besides, LBH should improve the ability to mobilize operational fund with using public fund for legal aid posted in province and town Budget (APBD) and more support from the local resources in West Java.

LBH Bandung up to the present still doing base criteria from legal aid organization and running its mission in pro bono publicio manner with legal aid program directed to every effort to reform law more protect marginal human rights in West Java.

5.The Future of the Legal Aid Movement and Legal Aid Organization Promoting Human Rights Protection in Indonesia

One of the most important factors for legal aid movement and legal aid organization in the future is society image about the legal aid itself. The idea about legal aid has not diverse flatly in marginal society.

Nevertheless, the forming positive image about legal aid in society is the first task especially from government in order to give service to the society. Giving the legal aid like that actually one of the government tasks and obligation to do the law and flat the justice in accordance with principle that Indonesia is a constitutional state.

Besides, strategy could be adopted by legal aid in promoting the human rights protections in Indonesia are:

-Ideology level
There is still rejection from Indonesian government towards human rights protection and the low society awareness about their rights. And being the most important to legal aid organization to convince the commitment about promotion and human right protection even in a country level or a society level.
-Legal Assistance
Legal Assistance can be an effective tool in legal aid organization. It is not only useful in defining several rights violation but also can be note for government and others. To express the fact about human rights violation can cause strategic power effect in gaining strong society and become a contribute value in order that functionary more emphasize to transparency effect and public accountability.
-Community Legal Empowerment
Marginal society that becomes the victim from low arrangements can be strong with facilitated critical legal education and its procedure and how law can be used as a media to protect the rights. Moreover, legal aid organization can combine the legal knowledge with other service like negotiation in the name marginal society and doing a lobby to reform the law in order to be more protective to marginal society.
-Using mechanism and international standard law
Knowing there is no regional mechanism in Asia, legal aid organization can use international mechanism and international standard law about human rights. Law norms of international human rights can be used in human rights education, to evaluate and oppose national law and to value government performance in doing its obligation to fulfill and protect human rights. Legal aid organization also can push standard integration and international human rights law norm into national law system.

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