Justice For All? - UNDP

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INTRODUCTION 011 PART 1 As a national institution, the Indonesian Public Prosecution Service is headquartered in Jakarta at the Attorney-General’s Office (Kejaksaan Agung). The Attorney-General is a political appointee who serves at the pleasure of the President, assisted by a Vice -Attorney-General and a number of Junior Attorneys-General who are drawn from the ranks of senior career prosecutors. Representation in the regions is through a High Prosecutor’s Office located in the capital city of each province, and a District Prosecutor’s Office located in the capital city of each district or municipality (see Figure 3). 31 Where appropriate, District Prosecutors’ Branch Offices may be established by Decree of the Attorney-General. 32 FIGURE 3: HIERARCHY OF PROSECUTORS ATTORNEY GENERAL’S OFFICE KEJAKSAAN AGUNG HIGH PROSECUTOR’S OFFICE KEJAKSAAN TINGGI DISTRICT PROSECUTOR’S OFFICE KEJAKSAAN NEGERI DISTRICT PROSECUTOR’S BRANCH OFFICE CABANG KEJAKSAAN NEGERI Most prosecutions are conducted by prosecutors from a District Prosecutor’s Office, who receive their brief of evidence from the local District Police (POLRES) and appear in the local District Court. If an appeal is lodged in the provincial High Court, the prosecutor who initially handled the case will usually continue to do so. The High Prosecutor’s Office will primarily prosecute serious or sensitive cases arising within a province that have been investigated by the Provincial Police (POLDA), both at first instance in the District Court and on appeal in the High Court. District prosecutors also play a central role in the investigation and prosecution of corruption related cases, supervised by provincial prosecutors or the Attorney General’s Office if the monetary value of the case exceeds certain predetermined levels. 33 Monitoring and Oversight: The Prosecutorial Commission A Prosecutorial Commission has recently been established by Presidential Regulation to scrutinise the performance and behaviour of prosecutors and staff in the execution of their duties and their behaviour outside of their official duties. 34 The Commission can summon and question prosecutors and staff; request information from within the prosecution service and government agencies, and; receive reports from the public about the behaviour of prosecutors and related staff. 35 The Commission reports to and advises the Attorney-General for hisor her further action. 36 31 Article 6 Law No.16/2004 regarding the Public Prosecution Service. 32 Article 7 Law No.16/2004 regarding the Public Prosecution Service. 33 Corruption cases with a monetary value under Rp.100 million can be investigated upon the initiative of the District Prosecutor’s Office. Investigation of cases between Rp 100 million and Rp 1 billion must be approved and supervised by the Provincial Prosecutor’s Office, while investigation of cases valued at over Rp 1 billion must be approved and supervised by the Attorney General’s Office: Attorney General’s Circular SE-003/A/JA/05/2002 regarding Changes to the Control of Prosecutions for Special Criminal Matters. 34 Presidential Regulation No.18/2005 regarding the Prosecutorial Commission of the Republic of Indonesia, made pursuant to Article 38 of Law No.16/2004. 35 Article 11 Presidential Regulation No.18/2005 regarding the Prosecutorial Commission of the Republic of Indonesia. 36 Article 10(1)(d) Presidential Regulation No.18/2005 regarding the Prosecutorial Commission of the Republic of Indonesia. Justice For All? - An Assessment of Access to Justice in Five Provinces of Indonesia
012 PART 1 The Commission does not replace the existing 2.4 PRIVATE LAWYERS inaugurated on 16 March 2006. 40 internal oversight mechanisms of the Public Prosecution Service. 37 However, all internal investigations of a suspected violation of prosecution service regulations must be reported to the Commission, which may take control of the investigation if: it appears to be insincere or unduly protracted; the outcome of the investigation is considered inappropriate given the conduct in question, or; there is collusion in the implementation of the internal investigation. 38 Clearly, such a formulation leaves significant room for dispute as to precisely when the Prosecutorial Commission has authority to take over an investigation, and it remains to be seen how these provisions will function in practice; for example whether similar tensions will arise between the Attorney-General’s Office and the Prosecutorial Commission as have already arisen between the Supreme Court and the Judicial Commission (see 2.5 below). National Practicing Requirements The majority of the Indonesian legal profession is regulated by Law No.18/2003 regarding Advocates. 41 To be admitted to practice as an advocate, a candidate must hold an undergraduate law degree, be at least 25 years of age, have passed the professional exam set by the professional organisation regulating admission to practice, and have worked under supervision for two years at an advocate’s office. 42 The Law purports to authorise only advocates to provide legal services, 43 . which are defined as legal consultations, legal aid, legal representation or performing other legal acts on a client’s behalf. 44 A client is defined as a person who receives legal services, whether free or not. 45 These new requirements have significantly restricted the ability of legally trained but non-admitted practitioners working in legal aid institutes or universitybased The Prosecutorial Commission is comprised of seven members, selected by the President from a list of fourteen proposed by the Attorney-General, who have backgrounds as either former prosecutors, legal practitioners, legal academics or members of the community. 39 Commissioners serve a four year term (extendable for an additional four years) and can be removed only by the legal clinics (that is, non-advocates) to provide legal aid services to indigent clients. However, as will be explained in more detail in Part Two at 2.2 , their effect has been (or at least should have been) somewhat ameliorated by a recent decision of the Constitutional Court which struck down the prohibition against non-admitted practitioners providing legal services. President on the recommendation of the Commission. The first Commissioners were 37 ‘Besok, Komisi Kejaksaan Dilantik’ Kompas, 15 March 2006, (accessed 15 June 2006). http://www.kompas.com/utama/news/0603/15/063123_.htm 38 Article 12(2), Article 10(1)(a) and Article 10(1)(b) Presidential Regulation No.18/2005 regarding the Prosecutorial Commission of the Republic of Indonesia. 39 Article 4 and Article 18, Presidential Regulation No.18/2005 regarding the Prosecutorial Commission of the Republic of Indonesia. 40 ‘Besok, Komisi Kejaksaan Dilantik’ Kompas, 15 March 2006, http://www.kompas.com/utama/news/0603/15/063123_.htm (accessed 15 June 2006). 41 Notaries are regulated by Law No.30/2004 regarding Notary Services and Land Deeds Officers (authorised to make deeds regarding title to land) and operate under Government Regulation No.37/1998 regarding Regulation of Land Deeds Officers. 42 Article 1(7) Law No.18/2003 regarding Advocates. 43 Article 31 Law No.18/2003 regarding Advocates. At the time of writing an application to the Constitutional Court was being heard as to whether legal graduates undertaking non-litigious work as legal consultants fall within the definition of ‘advocate’ and are hence regulated by the Advocates Law, although a literal reading of the Law would appear to confirm that they do. For example, Article 32(1) provides that advocates, legal advisors, practicing lawyers and legal consultants already practicing before the passage of the Law are all automatically declared advocates, implying that legal consultants fall within the definition of ‘advocate’. However, in a separate decision, the Court struck down Article 31 as unconstitutional – see Part Two of the report at 2.2. 44 Article 1(2) Law No.18/2003 regarding Advocates. 45 Article 1(7) Law No.18/2003 regarding Advocates. INTRODUCTION Justice For All? - An Assessment of Access to Justice in Five Provinces of Indonesia
Page 1 and 2: PSPK-UGM Justice For All? An Assess
Page 3 and 4: Justice For All? - An Assessment of
Page 5 and 6: ii PREFACE Access to justice is a v
Page 7 and 8: iv ACKNOWLEDGEMENTS The Law Faculti
Page 9 and 10: vi ACKNOWLEDGEMENTS Justice For All
Page 11 and 12: viii EXECUTIVE SUMMARY the establis
Page 13 and 14: x EXECUTIVE SUMMARY not all of whic
Page 15 and 16: xii EXECUTIVE SUMMARY Prosecutors H
Page 17 and 18: xiv EXECUTIVE SUMMARY erence for th
Page 19 and 20: xvi Justice For All? - An Assessmen
Page 21 and 22: xviii TABLE OF CONTENTS 3. FACTORS
Page 23 and 24: xx TABLE OF CONTENTS 2. JUSTICE FRO
Page 25 and 26: xxii TABLE OF CONTENTS Justice For
Page 27 and 28: xxiv TABLE OF FIGURES Box 34: Viole
Page 29 and 30: xxvi TABLE OF FIGURES CHARTS Chart
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Page 33 and 34: GLOSSARY xxx Dinas Perikanan Dusun
Page 35 and 36: GLOSSARY xxxii Mahkamah Agung Mahka
Page 37 and 38: GLOSSARY xxxiv RT - Rukun Tetangga
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Page 41 and 42: 004 INTRODUCTION PART 1 prehensive,
Page 43 and 44: 006 INTRODUCTION PART 1 The Normati
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Page 47: 010 INTRODUCTION PART 1 Acara Pidan
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Page 71 and 72: INTRODUCTION 034 PART 1 of conflict
Page 73 and 74: INTRODUCTION 036 PART 1 Justice For
Page 75 and 76: 038 PART 2 Justice For All? - An As
Page 77 and 78: 040 FINDINGS PART 2 TABLE 3: A SELE
Page 79 and 80: 042 FINDINGS PART 2 1.3 KEY JUSTICE
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062 FINDINGS PART 2 as an advocate,
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064 FINDINGS PART 2 reaching its ta
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066 FINDINGS PART 2 rence for eithe
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068 FINDINGS PART 2 satisfaction wi
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070 FINDINGS PART 2 TABLE 6 : OVERA
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072 FINDINGS PART 2 mechanism is th
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074 FINDINGS PART 2 Southeast Sulaw
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076 FINDINGS PART 2 CHART 5: COMMUN
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078 FINDINGS PART 2 Of greater conc
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080 FINDINGS PART 2 TABLE 9: SOCIAL
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082 FINDINGS PART 2 and with limite
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084 FINDINGS PART 2 to citizen rati
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086 FINDINGS PART 2 because he had
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088 FINDINGS PART 2 is an open secr
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090 FINDINGS PART 2 carry out their
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092 FINDINGS PART 2 it was soon due
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094 FINDINGS PART 2 Low Salaries: T
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096 PART 2 shortage of official car
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098 FINDINGS PART 2 Divorce Cases M
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100 FINDINGS PART 2 Traditional hal
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102 FINDINGS PART 2 Submission to t
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104 FINDINGS PART 2 hardly be said
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106 FINDINGS PART 2 courts and in a
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108 FINDINGS PART 2 Justice For All
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110 PART 3 Justice For All? - An As
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112 CONCLUSIONS & RECOMMENDATIONS P
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124 ANNEX 1 Justice For All? - An A
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126 SURVEY DEMOGRAPHICS ANNEX 1 per
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128 BIBLIOGRAPHY BIBLIOGRAPHY Austr
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130 BIBLIOGRAPHY BIBLIOGRAPHY Coord
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132 BIBLIOGRAPHY BIBLIOGRAPHY Hukum
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134 BIBLIOGRAPHY BIBLIOGRAPHY Linds
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136 BIBLIOGRAPHY BIBLIOGRAPHY Stati
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138 BIBLIOGRAPHY BIBLIOGRAPHY World
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140 BIBLIOGRAPHY BIBLIOGRAPHY Chief
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142 WEST KALIMANTAN PROVINCIAL REPO
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186 MALUKU PROVINCIAL REPORT ANNEX
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234 NORTH MALUKU PROVINCIAL REPORT
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274 ANNEX 5 Justice For All? - An A
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276 CENTRAL SULAWESI PROVINCIAL REP
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296 ANNEX 5 4.2 PATTERNS OF USE IN
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318 SOUTHEAST SULAWESI PROVINCIAL R
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