Policy research on access to justice in Indonesia: a review of World Bank and UNDP reports.

• Author: Vel, Jacqueline A.C.
• Position: United Nations Development Program - Access to Justice in Indonesia

1. Introduction

   The access to justice activities discussed in this article took place in the context of Indonesia's democratization process. When in May 1998 the Suharto regime in Indonesia collapsed, a new political era emerged in which democratization, decentralization and human rights were considered central to legal change. During the 32 years of Suharto's authoritarian regime the population suffered many forms of social injustice. The core fundamental freedoms--of speech and political organization--were limited. As a result, the very few outlets for the exercise of political activity were in the form of show case elections which always resulted in the victory of the regime's own political party, Golkar. The modes of injustice also extended to the state appropriation of millions of hectares of land that had belonged to local populations for centuries. Weak or non-existent remedial mechanisms meant that labourers had no freedom and the means with which to organize themselves to agitate for redress. Given the profound effects of what was a highly restrictive political and social order, change was not only imperative, but also inevitable.

   Increasing demands for reform that had resulted in the 1998 regime change included constitutional reform to provide a legal framework for establishing a democratic state and its institutions, more authority to local and regional governments, checks and balances to enhance the accountability of the government, legal action against perpetrators of human rights violations and corruption in the past, and withdrawal of the military from politics and civil service (Crawford and Hermawan, 2002:205-12). Many international donors enthusiastically responded to the calls of the reform movement and subsequently provided funds for some of the key reform programs. With the financial support from donor agencies and multilateral partners, a door was opened that allowed these entities to extend their intervention in Indonesian state affairs by influencing and shaping policies some of which had an underlining western mindset. Elaborate legal reforms emerged in the aftermath of the 1998 regime change. For instance hundreds of new statutes and regulations were enacted and dozens of major new institutions have since been established. Some of these include a network of human rights courts, anti-corruption tribunals, a judicial service commission, antimonopoly commission as well as local and national ombudsman commissions. These reforms have been adopted within the frame of key constitutional amendments that include the adoption of a bill of rights aligned to the foundational ethos of the Universal Declaration of Human Rights (Lindsey 2006). The effort to shape a national strategy for access to justice was part of these reforms that aim at fostering people-oriented development and justice. However, building a legal system of laws, institutions and processes alone is not sufficient guarantee that these legal reforms will be beneficial to its users. Facilitating people's access to this justice system as well as to non-formal justice systems is required for realizing access to justice. Policy makers and jurists have mostly focused on the former, although there is increasing recognition of the latter as one of the components of the rule of law (Golub, S. 2003). In a broader sense, access to justice refers to the ability of seeking remedy for incidences of social injustices, and in a more narrow sense, it refers to access to the dispute resolution institutions of the judiciary. (3) The question worth exploring, then, is how might the existing barriers for access to justice that Indonesians experience--in particular the poor and disadvantaged--be overcome?

   In 2007, a joint program on the theme Building Demandfor Legal and Judicial Reform 20072010: Strengthening Access to Justice was initiated to address the institutional and normative limitations to access to justice in Indonesia. The initiate arose from collaboration between the World Bank's Social Development Unit in Jakarta, UNDP Indonesia, and the Van

   Vollenhoven Institute (VVI) of Leiden University in the Netherlands. The two international donor organizations had been engaged in programs on legal empowerment and access to justice for the poor before this joint initiative. The World Bank's Justice for the Poor Program had started in Indonesia in 2002, complementing efforts of the Government of Indonesia to draft and implement a comprehensive National Access to Justice Strategy, to be incorporated into Indonesia's National Medium-Term Development Plan (2010-2014). The main activities of the Justice for the Poor program are research and operational programs aimed at improving access to justice for communities, in particular the poor. (4)

   In 2004-2006, UNDP Indonesia conducted a joint assessment with the National Planning Board of Indonesia (BAPPENAS) on access to justice in the five Indonesian provinces of West Kalimantan, Maluku, North Maluku, Central Sulawesi and Southeast Sulawesi, which will be discussed below. After this assessment UNDP launched the project on Legal Empowerment and Assistance for the Disadvantaged (LEAD) in 2007. The Dutch Institutional Development and Capacity Building Trust Fund, meant for providing technical assistance and analytical services, financed the 'Building Demand' program (World Bank 2009:34). VVI participated in this joint program as academic partner aiming at a substantive and independent contribution to the efforts to improve access to justice for the poor in Indonesia. The program's activities

   combine research, analytical and operational work to assist the Government of Indonesia to (i) produce a comprehensive National Strategy on Access to Justice; (ii) execute the strategy through national level government projects such as the National Community Empowerment Program, and (iii) make a significant contribution to capacity building for civil society, local governments and universities on order to support the short-term goal of enhanced access to justice and the long-term goal of building public demand for systemic and sustainable reform in the justice sector (World Bank, UNDP and VVI 2007).

   An additional challenge for VVI in this program was to respond to concerns from some scholars that much rule of law promotion work, including programs to strengthen access to justice, utilised unclear conceptual approaches (Carothers, 2006; Esman, 2004). Moreover, some critics have noted that due to the political pressure and rapid expansion of such programs they were mostly not grounded in the understanding and appreciation of the sociopolitical dimension of law, legal institutions and processes, or, in short, the support for rule of law suffered from a lack of thorough research (Lev, 2000).

   Since 2000, both UNDP Indonesia and the World Bank Social Development Unit in Jakarta have produced a series of reports on access to justice, including the results of an impressive number of ethnographic case studies in Indonesia. When the 'Building Demand' program started, VVI researchers could benefit from these reports, using the conclusions as hypothesis for other situations and recommendations as input for their research agenda. Following up on that initial reading, this article discusses six World Bank reports and one UNDP study exploring their methodology and assumptions. The reports raise many issues for discussion that can be traced back to the ideological background of the institutions involved in the collaboration. Those issues concern (a) the way of thinking about development, (b) the interpretation of access to justice as a human right or, in a more instrumental way, as a precondition for 'inclusive liberalism', and (c) the tension between human rights or poverty reduction as primary focus of access to justice interventions.

   Following this introduction, this article is organised in three subsequent parts. Part two examines the ideological contexts and research traditions of the partners involved in the 'Building Demand' program. The assumption here is that the ideological persuasion of donor agencies is often reflected in their methodological and philosophical approaches to access to justice. The question that emerges from this is the extent to which their ideological persuasions influenced the conception, scope and methodology of research areas. The third and by far the largest part of this article explores the 2007 UNDP/BAPPENAS access to justice study in respect of five selected Indonesian provinces as well as six World Bank reports on the Justice for the Poor Program. The article then concludes with a reflection on the present and future direction of research on access to justice. It is worth noting however, that the review of reports in this article is not intended as an evaluation of the activities of the access to justice initiatives of the World Bank and UNDP in Indonesia, but rather a way of exploring how these institutions together with VVI researchers could constructively collaborate, using their strengths to improve the knowledge on which interventions and policy for improving access to justice are conceived.

2. Ideological Grounding of Reform Programs

   Access to justice research and interventions do not necessarily stand as isolated activities but are embedded in larger programs. For VVI, that larger program was a long-standing tradition of research centering on the complexities of the Indonesian legal system, with its layered structure that reflects the inheritances of successive regimes and the reality of legal pluralism. In the first part of the 20th century, Professor Cornelis van Vollenhoven founded the Leiden school of adatrecht (customary law). In the early twentieth century debates within the Dutch political circles on ways to govern the Indonesian colony, van Vollenhoven campaigned against the expansion of Western Law in The Dutch East Indies (Fasseur 1992:251-2). He opposed proposed...