The Republic of Indonesia, an independent state since 17 August 1945, is a State based on the rule of law. Its constitution emphasizes (UUD 1945), in particular article 1 paragraph 3:
“The State of Indonesia shall be a state based on the rule of law.”
A state based on the rule of law means that the law should be a solution for any problems that arise in the life of the state. Law has an important position and is strategic in the life of society, nation and state.
According to research of the Indonesian Legal Roundtable (ILR), as a State based on the rule of law, the Republic of Indonesia has five main principles. They are: #1 the rule of law; #2 clear measurable regulations and participatory rules; #3 independent judicial power; #4 access to justice; #5 guarantee of human rights protection. Results from these studies, 2012-2015, show that the Indonesia rule of law index is five, under the minimum score of six, still far from ideal. The average ratings of the score is 1-10.
Based on the assessment score above, the highest point for Indonesia is the formal, legal aspect. However, this aspect contains weaknesses, namely the quality of the regulation gap between central and local governments. For instance, many local governments issued government regulations and regent decrees which ban establishment of places of worship for minority religions and beliefs. Many local governments issued regulations which prohibit Ahmadiyya congregations in the provinces of Indonesia.
The weakest factor of the Indonesia’s rule of law is human rights protection. One of the indicators is the problem of law enforcement agencies itself. The agencies become part of the judicial problem. They are committed to and involved in cases of unfair trial, torture and abuse of power. Torture is still used to forcibly obtain confessions from suspects.
Since 1998, Indonesia has issued national laws strengthening the due process of law. Examples are: Law No 48 of 2009 on Judicial Power; Law No 31 of 2014 (renewal of the Law No 13 of 2006) on Witness and Victims Protection; Law No 39 of 1999 on Human Rights; other national regulations which were born after the political reform in 1998. Violations against fair trial still occur frequently.
The above situation is in line with Suzannah Linton’s point of view that: “adopting laws that are riddled with loopholes and setting up hollow institutions administered without commitment to fundamental principles such as transparency, due process, justice and accountability, will do more harm than good in Indonesia.”
One of the serious problems faced by Indonesia under the transitional government is how to reform the law and legal system to be more democratic and to strengthen the due process of law. The thesis statement of this article is: although law reform has been declared and conducted since 1998, unfair trials still occur widely.
Weaknesses of the Legal Aid System
On October 4, 2011, the House of Representatives passed national Law No.16 of 2011 on Legal Aid. The legal aid program is operated by the government under Law No 16 of 2011 on legal aid. This law sets up a major role for the Minister of Law and Human Rights (Kemenkumham RI), where he has two authorities: firstly, regulator of the legal aid conducted by its subordinate, the National Body of Legal Development (BPHN); secondly, monitoring and evaluation. This mechanism does not go into the quality of service of the legal aid providers.
Under the Minister of Law and Human Rights, there is no effective coordination among the institutions dealing with legal aid matters. For instance, implementation of the legal aid program is concentrated under BPHN. BPHN’s role is to conduct verification and accreditation, circulate funds to legal aid providers (OBH), monitor and evaluate the OBH. Although limited to administrative levels, such as reimbursement mechanisms, the centralized role under BPHN is certainly not effective.
Meanwhile, there is another institution under the minister, namely the Directorate General of Detention Center (Dirjen Pas), whose function is to collect data relating to number of detainees and prisoners. This institution has yet to adjust to the legal aid system. There is no data on detainees that are entitled to government legal aid, because many cases of unfair trials happened to the detainees.
Relating to free legal aid for poor people, the Dirjen Pas has yet to provide clear data on the numbers of the poor and how many of them are entitled to legal aid. In essence, the implementation of this project is not running well.
There is no clear standard and definition of a poor person. And what about the other vulnerable groups, such as women, children, persons with disabilities and the local indigenous? What is the standard for being poor? And if they are not poor, are they entitled to free legal aid? These questions remain problematic until the present.
Legal Aid still difficult to access
The legal aid budget is not enough to cover all justice seekers throughout the country. In the first year of the legal aid program, the Government provided IDR 40.000.000.000, (Forty Billion Rupiah). In the second year the Government provided IDR 50.000.000.000 (Fifty Billion Rupiah).
Each case, either criminal or civil, will be funded by the government to the amount of IDR 5,000,000. Of course this budget is inadequate, in particular for legal aid providers located in remote areas with poor public infrastructure. Circumstances have worsened due to the following situations. Most of the legal aid providers are located in capital provinces especially on the island of Java, and few legal aid providers tackle cases occurring in remote areas.
In the past two years, many justice seekers did not know how and where to access free legal aid providers, if they are available. The quotas of each legal aid providers are limited and therefore they cannot handle all justice seekers. After two years of implementation of the legal aid system, legal aid providers still face reimbursement difficulties due to technical problems.
Free Legal Aid failed to prevent torture
Despite the fact that Indonesia has ratified the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the government has yet to promote a national law which prosecutes torture as the Penal Code does not recognize torture as a crime. This circumstance has resulted in rampant cases of torture in Indonesia.
Many times torture is used as a method to obtain confessions from suspects or accused persons. Although police headquarters had issued internal regulations on human rights in carrying out daily police duties, there has been no serious effort by the security forces to reduce or eradicate torture. In the last two years, the Asian Human Rights Commission (AHRC) has documented and reported many cases of torture. According to the data documented and reported by the AHRC, torture could be seen in several ways–torture in police custody to obtain a confession, as revenge or as a political motive.
Torture in police custody, in the last three years has become a trend in Indonesian law enforcement. Mr. Aslin Zalim forcibly confessed and was tortured to death in the custody of the Bau Bau police resort (Polres Bau Bau), South East Sulawesi province. In 2014, there was a case of torture against Mr. Oki Saputra, a suspect in a motorcycle theft. He was tortured to confess while in police custody. In 2015, police officers of the Widang Police Sector (Polsek Widang), Tuban Regency, East Java Province tortured Fiki Arfindo (13) to confess. In 2016, Mr. Siyono, a terrorist suspect, was forced to confess and tortured to death by the Anti-Terror Police Unit (Densus 88). We also noted similar cases occurring in police custody: Mr. Juprianto tortured to death, Asep Sunandar tortured to death by Cianjur police officers, Marianus Oki forcibly confessed and tortured to death.
Pretrial detention contributes to torture
In the Indonesian legal system, detention can be imposed for a criminal offense, punishable by more than 5 years in prison. Lawmakers tend to impose heavy criminal charges as a solution of law enforcement in Indonesia. They do not take into consideration that by imposing heavy criminal charges it means that pre-trial detention will be extended triggering violations of fair trial.
Taking as an example, on 23 April 2016 as a result of the waiver and longer stays in overcrowded prisons, clashes erupted in the Banceuy Prison, in Bandung, West Java Province. They resulted in the death of one prisoner, Mr. Undang Kasim (54). He was found dead a day after the prison guards punished him with solitary confinement. Undang was apparently found guilty of smuggling drugs into the prison.
Under article 21 paragraph (1) the Indonesian Law of Criminal Procedure, before detention is imposed upon suspects or defendants, the investigators should take into consideration the circumstances that are causing concern, as follows :
a. The suspect or the accused will flee;
b. Impair or eliminate the evidence;
c. Feared to repeat the criminal act;
Moreover, regarding the performance of the Prosecutor of the Republic of Indonesia, data from the Prosecutorial Commission (Komisi Kejaksaan) shows that of the 86 government agencies that were assessed, the prosecutor ranked in the lowest position–50.92. No need to say that this must be corrected immediately. The attorney institution as a law enforcement agency is a strategic institution. People’s expectations are very high to reform and strengthen the Attorney General.
Indonesia’s Deathly Judicial System
In January and May 2015 the Government of Indonesia has carried out two groups of executions towards 14 death row inmates. They included 12 foreign citizens and two Indonesians. The death penalty is a practice used by the government for law enforcement. The national trend on the death penalty is interrelated with the lack of accountability of the law enforcement agencies. It boils down to the death penalty as the primary legal sanction, which includes murder, terrorism, and drug crimes.
Death penalty has caused a serious problem. In the last two executions, the average waiting period was 10 years 6 months, with the longest waiting time up to 16 years. This shows that the prisoners get double punishment: a long imprisonment and the death penalty itself.
In December 2014, the President refused to grant 64 (sixty-four) clemency appeals for the death penalty related to drug cases. The President is using the argument from the National Narcotics Agency data which states that 4.5 million people are in rehabilitation, while 40 to 50 people die every day because of drug abuse. This data is questionable since the methodology used by BNN is ambiguous and produced non-reliable data.
In the case of Yusman Telambuana (an underaged male child), the court sentenced him to death. Yusman is a dreadful example of criminalization in Indonesia without a proper or fair legal process. While in remand, Yusman showed limited knowledge in speaking and reading the Indonesian language. During the investigation process, he was tortured in a prison cell to make him agree to a false age. Yusman was 15 years old while he was under the investigation process in 2013, but he was forced to confess that he was 19 years old.
Conclusion
After examining the above-mentioned problems, this article found serious defects in the Indonesian legal system. Despite law reforms declared and conducted since 1998, unfair trials still occur widely. In general, Indonesia has yet to show any seriousness in applying and ensuring fair trial principles at every judicial stage.
A Legal Aid System, developed since 2014, based upon the enactment of Law No 16 of 2011 on Legal Aid has yet to contribute to prevent torture and other forms of unfair trials faced by justice seekers. Legal Aid only applies to poor people (economic difficulties). It does not apply to other vulnerable groups such as children, women, people with disabilities and local indigenous people.
The Legal Aid system still faces serious obstacles such as an inadequate budget, a bureaucratic system, a lack of quality control, assessment difficulties by justice seekers in remote areas.
[1] Marwan Effendy, Kejaksaan RI : Posisi dan Fungsinya dari Perspektif Hukum, Jakarta, PT Gramedia Pustaka Utama, 2005, P 1
[2] Indonesian human rights organization working on research and policy advocacy on national legal system
[3] Indonesian Legal Roundtable, Index Negara Hukum Indonesia 2013, Taher Foundation, P 2, can be accesses at http://www.ilr.or.id/category/publikasi/
[4] http://www.humanrights.asia/resources/hrreport/hr-reports/ahrc-spr-001-2015.pdf
[5]Suzannah Linton, Accounting for atrocities in Indonesia’, Singapore year book of international law and contributors, 2006,31
[6] http://www.kontras.org/buku/Bantuan%20Hukum%20Masih%20Sulit%20Diakses%20Email.pdf
[7] The AHRC published an urgent appeal on this case at:http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-153-2013?searchterm=aslin and the urgent appeal update at :http://www.humanrights.asia/news/urgent-appeals/AHRC-UAU-006-2015
[8] The AHRC published an urgent appeal on this case at:http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-022-2014
[9] The AHRC published an urgent appeal on this case at:
http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-022-2016/?searchterm=siyono and also update urgent appeal at:http://www.humanrights.asia/news/urgent-appeals/AHRC-UAU-008-2016
[10] http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-080-2016
[11] http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-114-2016
[12] http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-076-2016
[13] http://www.humanrights.asia/news/ahrc-news/AHRC-STM-091-2016
[14] Institutute for Criminal Justice Reform (ICJR), Update Hukuman Mati di Indonesia 2016, page 16
[15] Indonesia uses faulty stats on ‘drug crisis’ to justify death penalty. Accessed online at 13 October 2015 through: http://theconversation.com/indonesia-uses-faulty-stats-on-drug-crisis-to-justify-death-penalty-36512
