Legal aid at the crossroads as YLBHI remains in limbo
Legal aid at the crossroads as YLBHI remains in limbo
Frans H. Winarta, Member of the Board of Trustees, Indonesian
Legal Aid Foundation (YLBHI), Jakarta
The financial plight of the Indonesian Legal Aid Foundation
(YLBHI) has been the subject of considerable discussion in the
press in recent months. The concern is justified given the
leading role this organization played in the struggle for human
rights during the New Order regime.
The operational funding that reached over Rp 500 million per
month for the 14 LBH branches throughout Indonesia was stopped by
donor agencies Novib, Triple Eleven and Sida on the grounds that
an organization like YLBHI was no longer needed in this new
reform era.
The modus operandi of LBH has been to concentrate on
strengthening and encouraging the formation of civil society
through the issues of human rights and civic education for the
community and for the poor who lack any knowledge of their legal
rights.
At a time when the state is not as strong or as repressive as
during the New Order regime, YLBHI has had to switch course and
return to its original mission of providing legal aid for the
poor.
As long as poverty still exists, there is always a need for
legal aid. If a country as advanced as the United States has
around 3,500 legal aid organizations spread across 50 states,
then Indonesia that has still yet to fully recover from the
multi-dimensional crisis that struck the country in 1997
definitely needs legal aid for its tens of millions of poor and
unemployed citizens.
The right to legal representation and to an adequate defense
is an essential part of the principle of equality before the law
that is constantly enunciated by our leaders, government
officials and the community in general. It is a principle that is
easy to articulate, but extremely difficult to implement.
Access to legal counsel is a fundamental human right
regardless of whether one is rich or poor. Access to justice for
the common people actually increases productivity and social
cohesion because it reduces their sense of helplessness and
augments their sense of ownership in the system. This makes
social upheaval and destructive tendencies less likely.
A country that considers itself democratic should make
provision in its state budget for legal aid in order to ensure
equality before the law and access to justice. Legal aid funding
can also be obtained from private funding sources like
businesspeople, legal professional organizations, advocates and
others sympathetic to the defense of the poor. This is something
that has yet to be done in Indonesia.
Legal aid funding has been obtained from overseas sources
despite the fact that businesspeople and the legal profession
have a responsibility to fund legal aid bodies that give the poor
access to justice. Since foreign aid was cut off, YLBHI has been
in its most severe financial crisis since its founding in 1970.
But this parlous financial state can actually become an
important test for the organization and the community to see
whether legal aid can be obtained and supported from the
community's own resources.
Legal aid is the responsibility of the state and the
community. Therefore, the financial difficulties currently being
experienced by YLBHI require a common endeavor to overcome them.
Earlier on LBH did receive public funding under the
administration of former Jakarta Governor Ali Sadikin in the
1970s. But this assistance was cut off after Ali Sadikin ended
his term. It has recently been rumored that the Jakarta
Administration of Sutiyoso also wishes to help YLBHI by urging
powerful businesspeople to contribute long term aid to YLBHI so
that the renowned organization can continue its mission of
assisting the city's poor. These permanent funds will be
deposited in a bank and the interest used to meet the operational
costs of YLBHI.
The success or otherwise of getting this kind of funding from
the business community will depend very much on the businessmen's
awareness and the approach adopted by the Jakarta administration.
The board and management of YLBHI must convince the business
community that legal aid is necessary to achieve a just and
prosperous society.
In any part of the world, the rich cannot simply ignore the
plight of the poor and economically deprived. Striking contrasts
between rich and poor will always invite social tension. If the
poor in our community at least achieve some sense of satisfaction
through legal aid in dealing with legal problems, this should
encourage greater public order and respect for the law. The
existence of a large dissatisfied poor population who feel
cheated will always create conditions that are ripe for social
upheaval and violence.
Arthur von Briesen stated in his book Unequal Justice:
"Legal Aid is vital because it keeps the poor satisfied,
because it establishes and protects their rights; it produces
better working men and better working women, better house
servants; it antagonizes the tendency toward communism; it is the
best argument against the socialist who cries that the poor have
no rights which the rich are bound to respect".
It is based on this paradigm that it is hoped the business
community will contribute funding so that the legal aid movement
can continue to provide services for those less fortunate. This
is particularly important given the continuing high levels of
poverty in Indonesia. It is true that aid from a conglomerate
could be potentially problematic if YLBHI later has a case
against one of its own donors.
But the workers and urban poor who do not have access to legal
aid and representation are more dangerous than workers and the
urban poor who do have access to legal aid. At least, legal
disputes will have a chance of remaining within legal corridors
and not descending into anarchy.
Such permanent funds will be nonbinding so that the
independence of YLBHI can be guaranteed. Von Briesen considered
legal aid as a potent force against communism and against
socialists who claim that the rights of the working class are
trampled on by the rich.
In other words, legal aid is about a fair distribution of the
right to justice. If the rich can be defended by tough and
experienced advocates with high charges, then the rights of the
poor to a proper legal defense by a public defender acting pro
bono publico (for the public good) must also be guaranteed.
If such a balance can be achieved, then we can begin to move
toward the principle of justice for all. It is hardly surprising
that Governor Sutiyoso has taken note of this problem given the
heterogeneous nature of Jakarta's population and the great
imbalance in distribution of wealth.
It is hoped that this article might touch the heart of
powerful businesspeople to set aside a small part of their wealth
for perpetuity funding for YLBHI so that this organization can
continue its mission of defending the poor as part of our joint
public responsibility. There are hundreds of workers and
activists of YLBHI now asking: Quo Vadis, YLBHI?