'Democracy doesn't ensure access to justice'

'Democracy doesn't ensure access to justice'

Hera Diani, The Jakarta Post, Bogor

The Bojong waste treatment plant case, the 20 year-old unresolved
Kedung Ombo land eviction case, land confiscation by military
officers in Sidoarjo, East Java -- these are just a few drops in
the ocean of flawed justice in this country.

Certainly, there is more openness and freedom compared to the
period of the previous Soeharto regime. But access to justice is
still limited and selective due to the classical problems of
corruption, and a fetid legal culture that gives effective
impunity to the military and the wealthy.

There has in fact been some institutional legal reform here in
this country, with the establishment of a number of institutions,
namely a Human Rights Court, a Corruption Eradication Commission,
an Ombudsman, a Constitutional Court, and many others.

However, the commission establishment frenzy has yet to be
effective in boosting access to justice.

A workshop on access to justice in "transitional" countries
held here recently, concluded that while commissions like the
ombudsman can help in offering solutions, it has to consist of
honest and trusted members.

"The commissions are needed to provide external supervision,
which is more objective and is not attached to an esprit de
corps.

"However, it has to be rearranged as some (commissions)
overlap with one another, which will only lead to unnecessary
burdens on the state budget and could create public confusion,"
said Maruarar Siahaan, a judge of the Indonesian Constitutional
Court.

Organized by the Singapore-based Asia-Europe Foundation
(ASEF), the Habibie Center and the Hans Seidel Foundation, the
workshop implied that there is a need for a mechanism that will
bring courts to the people.

The legal system could be simplified, for instance, with
informal alternative dispute settlements and mediation,
especially because there is deep public distrust of the judicial
system.

In this case, legal aid schemes are pivotal and there should
be improvement in the schemes, and possibly incentives for pro
bono activities by lawyers.

Legal aid entails consultation and advice -- not only on
criminal cases but also civil and administrative cases -- as well
as provision of basic information on justice.

In terms of raising public awareness, it must be done using
media that people are familiar with.

"Public education can be done through comic books and
drawings. The government is sometimes too strict and
bureaucratic. Don't hide behind the complicated things.
Everything is complicated but there has to be political will,"
said Deborah Stothard, executive director of Alternative ASEAN
Network on Burma.

The love of justice, she said, already existed in Asian
culture, so people just need to be given confidence.

ASEF's director for intellectual exchange, Bertrand Fort, said
that to enhance access to justice, it requires budget allocations
to the judicial system for training and educating the law
enforcers, as well as giving them proper salaries.

"There are hundreds of international agencies which disburse
money, but the question is how to channel the money properly,"
Fort said.

He pointed to well-off non-governmental organizations (NGOs)
that had no grasp of the grass roots level.

"So, there must be genuine partnership between government,
NGOs and the state apparatus to create efficient law
enforcement," he said.

It has to be noted as well that not all judges are corrupt.
Therefore, there should be a mechanism to protect them from
punishment and threats.

On the notion of trust, there has to be critical and active
trust, which means that people need to be committed to eventually
trusting the system even though the system is flawed.

All actions and decisions should also be taken at local
levels, with assistance and information.

External actors, in this case other countries, need to be
involved as international pressure often succeeded in pushing for
resolution of legal cases, such as the cases of gang rape in
Pakistan recently.

"In terms of international pressure, it has to be understood
that Asia has diverse value systems. Sometimes punishment for
past wrongdoings is not necessary because apology is enough. This
has to be introduced," said Thai-based Malaysian activist
Stothard.

However, there is still a reluctance to be open and honest in
regional discourse.

"We have also fallen into the trap of raising ourselves in
default. Like 'Oh, at least our situation in Malaysia is better
than Indonesia', for instance," Stothard said.

A country with less access to justice, she added, can access
it from other countries with a more established legal system,
such as Singapore.

"It is possible. It's the moral obligation of these countries
(with more established legal systems). Government to government
work must also encourage access to justice that will also boost
investment," Stothard said.