Dr. ir. Jacqueline A.C. Vel,
Van Vollenhoven Institute for Law, Governance and Development
Faculty of Law, Leiden University, the Netherlands.
This special issue of LDG on ‘Access to Justice in Indonesia’ aims to present the results of a socio-legal research programme in Indonesia and to demonstrate how findings in a national programme contribute to current international debates on this theme. The papers in the issue range from critical review of policy-oriented access to justice research and developing a methodology for empirical studies of the process of justice seeking, to case studies in which the theme appears in concrete real life problems of Indonesian citizens. The cases deal with topics as diverse as child alimony in Islamic courts, customary law and protection of local people against land grabbing by plantation companies, grievances against a gold mining company, protecting rights of female international labour migrants and strategies of dismissed labourers to obtain their own type of justice.
In the earliest access to justice literature,the concept of access to justice referred to access to (state) courts through legal aid in Western countries. With an increasing diversification of mechanisms of redress, the access to justice concept has been progressively broadened to include other forms of ‘justice’ as well. Such other forms include mediation and aspects of customary or religious legal systems.
Obviously, in the case of Indonesia, where next to state law religious and customary law are important and socially accepted, a wide definition of access to justice gains preference, if the intention is to capture more than just a small slice of the entire range of mechanisms used to address citizens’ grievances. An example of such a definition is the one proposed by UNDP: “‘Access to Justice is the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards’ (UNDP 2005). It refers explicitly to ‘informal institutions’, and instead of limiting the concept to rights’ vindication or dispute resolution it includes the more general term ‘remedy’ while the substance of justice is defined in reference to human rights. This definition and UNDP’s analytical framework for access to justice is discussed in the first paper by Vel, and further elaborated in the article by Bedner and Vel. They propose a definition of access to justice that stresses the justice seeking process as well as the final situation that is aimed at:
Access to justice exists if: people, notably poor and disadvantaged, who are suffering from injustices, have the ability to make their grievances be listened to, and to obtain proper treatment of their grievances by state or non-state institutions, leading to redress of those injustices, on the basis of rules or principles of state law, religious law or customary law, in accordance with the rule of law.
The articles in this special issue are the result of research for the Access to Justice in Indonesia programme of the Van Vollenhoven Institute for Law, Governance and Development (VVI) in Leiden and Jakarta. This programme is part of a joint programme Building Demand for Legal and Judicial Reform 2007-2010: Strengthening Access to Justice that started in 2008. That programme is a collaboration between the United National Development Programme (UNDP’s Legal Empowerment and Assistance for the Disadvantaged (LEAD)), the World Bank (Justice for the Poor) and the Indonesian National Development Planning Agency (Bappenas), funded by the Royal Netherlands Embassy in Jakarta. The key objective of that programme is to assist the Government of Indonesia in developing a national (policy) strategy that aims at strengthening Indonesia as a ‘state ruled by law’ (negara hukum) and, concurrently, advance a ‘ law-oriented society’ (masyarakat hukum). Improving access to justice is one of the crucial avenues towards achieving that goal.
The first paper by Jacqueline Vel mirrors the start of the collaboration. The leading question for this paper is how academic research can contribute to improving access to justice. VVI’s research started with reading the reports of the a considerable number of ethnographic and policy-oriented studies that researchers of the Social Development Unit of the World Bank and UNDP in Indonesia had produced recently. Vel’s paper reviews these policy oriented studies in search of their characteristics regarding methodology and assumptions. The review inspired the VVI researchers in developing the Rolax framework for studying how justice seekers seek remedy through the legal repertoire, and resulted in many issues for the academic research agenda on access to justice for the poor.
The second paper by Adriaan Bedner and Jacqueline Vel presents a methodological framework for empirical research on the process of seeking access to justice, the so-called Rolax framework. It addresses the scholarly critique that support for the rule of law, including strengthening access to justice suffers from unclear concepts and a lack of thorough research (Lev, D; 2000; Carothers T., 2006; Esman, M.J. 2004). The paper is in three parts. The first part discusses several definitions of access to justice and ends in the process definition that is wide enough to cover the legal complexity of the real situations in which Indonesian citizens seek solutions for the injustices they experience. The second part translates this process definition to the Rolax framework for research. The third part adds a ‘rule of law analysis’. Whenever that title is mentioned, it usually gives rise to heated debates on what the definition of rule of law is or should be. The article explains that instead of proposing one definition of the rule of law, we used the elements of definitions of the concept as found in literature for constructing an analytical framework for assessing the quality of legal systems. The rule of law analysis can thus be applied to assess how the available legal repertoire – legislation, procedures, institutions - in a concrete situation of particular justice seekers confirms to or deviates from standards of good quality. Applying the methodology described in this paper turned out to be very helpful for remaining focused on the realities and problems of the justice seekers.
The next papers are based on empirical studies that show the result of socio-legal research on a sub-theme of access to justice. The VVI programme identified four general themes: land, environment, gender and labour. Additionally, it focused on three parts of the legal process: lawmaking, implementation of law, and dispute settlement. However, the empirical research displayed a wealth of surprises that could not always be captured by this well organized matrix of themes and foci, and the solid methodology.
Van Huis started his research, under the theme of gender, on access to justice for disadvantaged women with the hypothesis that “divorced women need access to the appropriate court to obtain alimony for themselves and their children to escape from poverty’. He conducted his research in a predominantly Muslim area in West Java, where divorce occurs frequently. The appropriate court in that case was the Islamic Court, but survey results indicated that only fourteen percent of the divorce cases were brought to court, with the bulk of cases arranged informally outside the court. Moreover, alimony did not appear as a big issue for most women, and even if it was included in a court decision it was usually not enforced nor executed. Van Huis thus argues that policy or research categories of access to justice issues should never be taken for granted and be specified for each cultural and economic context. Only then efforts to increase access to justice will be linked to injustices as they exist in practice and be targeted at the bottlenecks the justice seekers experience.
Laure D’Hondt obtained a similar finding in a completely different situation. Her research addressed the theme ‘ environment’, and she conducted field research on the problems surrounding gold mining in the North Moluccas in eastern Indonesia. She found that the umbrella problem contained a wide variety of perspectives, stories, arguments, and proposed remedies. For example, national environmental NGOs defined the injustice related to gold mining as trespassing on the legal prohibition on mining in protected forest land, whereas local migrants objected to the discriminatory employment policy of the gold mine company as the main injustice and others concentrated on the unjust distribution of what they saw as compensation payments. Here again, the choice of problem or the focus on a particular injustice determines what type of remedy people seek. External intervention for improving access to justice should take these variations into account.
The study on land disputes by Jacqueline Vel and Stepanus Makambombu was conducted in Sumba, one of the poorest areas of Indonesia. In spite of that fact, it was not easy to distinguish who were actually the poorest or disadvantaged people within that area. The paper argues how such distinctions can be made, using the concept of forms of capital that captures the many dimensions of being disadvantaged. This is important for both research and policy that wants to concentrate on ‘justice for the poor’. The paper comprises a rule of law analysis of the local legal system pertaining to land, that consists mostly of customary law. The paper shows how access to justice for the poor is very limited in such a hierarchical society. It also cautions against optimistic policies that support alternative dispute resolution mechanisms, because those alternatives to state law might be discriminatory. Instead, the poorest of the poor might be better served with well-implemented state protection of their access to land and access to public services.
The last two papers of this special issue focus on the theme of labour. One option for escaping poverty is seeking employment in other areas. Devi Novirianti conducted research on international labour migration, and more specifically on remedies for the problems that female migrant workers from Cianjur in West Java experience. Acting collectively, and supported by an NGO they tried to urge their district legislators to make a regional regulation that would increase protection of their rights. However, the political and economic interests in this industry eventually blocked the process. This case study thus suggests that bottlenecks in achieving access to justice are not always located in a lack of legal awareness or creativity in legal drafting, but can also be caused by political and economic power imbalances. In such a situation improving access to justice for the poor requires powerful political means.
The last paper documents a case of success. Factory workers who were dismissed because they organized labour protest found their own strategy to obtain an effective forum of redress. Instead of trying to get access to the Industrial Relations Court, which is the legal institution in Indonesia dealing with labour conflicts, they opted to follow a criminal law procedure. The reason for doing so was that they knew the court was not very effective and that labour legislation that on paper effectively protects the rights of labourers was never implemented or enforced. After seeking required legal information on the internet, and knowing they could rely on union support, they filed a criminal case against the factory’s General Manager. The court sentenced the General Manager to several years of imprisonment. Although the labourers did not retrieve their jobs, they achieved justice (or revenge). The case also had a positive spin off, because it created an important precedent for other cases of violation of the labour laws.
The collection of papers presented in this special issue will hopefully stimulate further research in Indonesia and elsewhere to extend critical engagement with the improvement of access to justice for poor and disadvantaged people.
On behalf of all the authors of this special issue, I would like to express my special thanks to Abdul Paliwala, Chikosa Silungwe and Fauzia Shariff for their great collaboration in this publication. We also thank Abou Jeng, Raza Saeed and Helen Kijo-Bisimba of the journal’s student editorial group for their efforts in language editing and Paul Trimmer for design and online production.