Mon, 29 Dec 2003

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?