Supreme Court
Supreme Court Regulation No. 4 Year 2014 Strengthens Diversion in Children in the Criminal Justice System
The enactment of Law No. 11 Year 2012 on Child Criminal Justice is a significant milestone for the protection of children’s rights in Indonesia. It is part of Indonesia’s commitment to fulfill the country’s international obligation in implementing the Convention on the Rights of the Child (CRC). One important feature from the Law is on the adoption of the diversion system for juvenile offenders. In Article 40 (3) point b of CRC, it stipulates that whenever possible, children should have the opportunity to other alternatives beside judicial proceedings (diversion).
In the Indonesian legal system, the adoption of the diversion system is clearly stipulated in Article 6 to 15, where the child is put into a mediation process between offenders, the victims’ representatives, and social service officers. The diversion is further strengthened with the enactment of Supreme Court Regulation No. 4 Year 2014 on Guidelines of the Diversion System Implementation in the Child Criminal Justice System. The Supreme Court regulation enactment welcomes additions in the operational implementation of the diversion system. One notable feature can be seen in Article 3 of the Supreme Court Regulation. The article abolishes the adulthood by marriage concept.
This is a well-established concept accepted in the legal perception, where a child can assume adult rights and responsibilities whenever they have enter marriage, despite their age (under 18). Thus, a child (under 18) who is already married is considered as an adult. As a result, they are treated as adult offenders.
However, the Supreme Court Regulation could potentially become dormant. The involvement of the Child Penitentiary Officers (Balai Pemasyarakatan/BAPAS) is strategically important in overseeing the implementation on the result of the process. Unfortunately, such a problem is raised because the BAPAS is not part of the court structure, but rather is part of the Ministry of Human Rights and Law structure. Thus, further communication is needed between the court and the ministry to discuss technical aspects in the overseeing process in order to make the implementation of the diversion system runs smoothly. (GAT)
House of Representatives
The Surrounding Discussion on the Bill on Advocates
It’s been one year since the House of Representatives Plenary Session on 12 July 2013 approved the Bill on Advocates as a House of Representatives initiative proposal. However, up until the end of the 2009-2014 House of Representatives tenure, discussions are still left unfinished. Based on the Problem Inventory List of the Bill on Advocates, there are still as many as 132 numbers of problems that have not reached an agreement. That being said, the time for discussions is running out fast. This current House’s session, which started on 15 August 2014 and will end on 30 September 2014, is the last session for the 2009-2014 periods; roughly 33 days remain. Would this be enough time to run discussions on the bill; and would it suffice? Would it compromise the quality of the bill?
Time is a minimum precondition to discuss a bill to ensure the quality. The period 33 days left is not enough to resolve the many materials in the Bill on Advocates. If forced, it will effect on the second precondition, which would mean problems need to be addressed in the bill will go unresolved. Should this be the case, then what at stake is not only the bill material, but also the sustainability of the organization and profession of advocates. Furthermore, it could cause damaging effects on the justice system; a gamble that’s truly not worth the risk.
The material within the Bill on Advocates is quite complex and cannot be taken lightly. This can be seen from the arguments that arose from the on-going discussions from the bill. Topics that emerged from the discussions range from the definition of Advocate itself, already a hot topic since the enactment of Law No. 18 Year 2003 on Advocates, the existence and arrangement of foreign advocates in Indonesia, advocates professional education which encouraged to be run by advocate organizations and also the topic of bar organization. The bill on Advocates would regulate on the establishment of the National Bar Association (Dewan Advokat Nasional/DAN), who shall encompass bar association (multibar). However, this has been rejected by the Indonesian Advocates Association (Perhimpunan Advokat Indonesia/Peradi), whereas on the other hand, a large number of senior advocates are supporting the concept. The mentioned issues, in our opinion, are challenges that are extremely difficult to overcome with only 33 working days available. (MSG)
House of Representatives
The Opening of Session I of the House of Representatives
The opening of Session I of the 2009-2014 House of Representatives period was done in line with the Presidential Speech regarding the financial memorandum of the 2015 National Budget. The session, which started on 15 August 2014 and will end on 30 September 2014, will be the last House’s session for the 2009-2014 period. Besides being viewed as a transitional phase, this momentum should also be directed towards conducting evaluations towards the performance of the House. The purpose is no other than to ensure that this representative institution will perform on a higher level in upcoming periods. In his speech, one matter that was highlighted by House Speaker, Marzuki Alie, was that the suboptimal legislative function. He admitted that the achievements in legislation were still subpar. Even though the House has made several breakthrough achievements, such as enacting Legislation Day since 2010, the legislation target still has not been reached. He added that the suboptimal performance of the House and Government is seen as one of the causes.
What was conveyed by Marzuki Alie can be confirmed by the legislation performance records of the House, issued annually by PSHK since 2003. For the 2009-2014 period, quantitatively speaking, the legislation target was not met. For Laws of substantial matter, in 2010, the House and Government only managed to complete 8 out of 70 Bills. The following year, in 2011, 19 out of 93 Bills were completed. Then in 2012, the number of Bills achieved completion was only at 10 out of 69. 2013 only saw 12 out of 70 Bills completed.
The above illustrates y does not yet left unanswered questions regarding the quality of the produced Laws. Supposedly the efforts in finding a solution towards the problem should not only be by enacting Legislation Day, but also by comprehensively reorganizing the legislative system. The starting point should be from a selective preparation stage in listing the Bills to be discussed; followed by an effective and participative discussion stage. Consequently, a proportional division of labor between the members and staff of the House will follow suit. In the end, the synergy between the House and Government will be largely determine the result; since the upcoming House and Government have a stack of piled up homework regarding this issue. (MSG)
Legal Policy
Government Regulation on Reproductive Health and the Debates on Abortion Legalization
A contentious issue regarding women’s reproductive rights rose after the government issued Government Regulation No. 61 Year 2014 on Reproductive Health. This regulation describes in detail the specific conditions that allow the act of abortion. Previously, Law No. 36 Year 2009 on Health states that the prohibition of abortion is excluded on the basis of the emergency medical indications and the cause of pregnancy due to rape.
According to the record of the Centre for Reproductive Rights, pregnancy due to rape is used as a reason of legalize abortion from 1996 by several countries that previously strictly prohibited abortion, including Albania, Burkina Faso, and South Africa. Abortion on rape indications is intended to save rape victims from worsening
psychological condition. Although not presenting statistical data, the Minister for Women Empowerment and Child Protection, Linda Amalia Sari, said that she received many reports of rape victims who suffered psychological trauma, as they were not ready to have children. Linda maintains that legal arrangement on abortion in the government regulation is one of the government’s solutions on rape cases.
On the other hand, the Chairman of the Indonesian Doctors Association, Zaenal Abidin, believes that the legalization of abortion needs to be reviewed. Zaenal argues that the provisions regarding abortion legalization are contrary to the ‘Hippocratic oath’ as well as to the Criminal Code, particularly regarding the crime against life. Conversely, the Minister of Health, Nafsiah Mboi, asserts that in principle, abortion is still prohibited. However, the ban can be excluded on the basis of medical emergency indications and pregnancy due to rape. Regarding the abortion on rape indications, Article 34 of the Government Regulation specifies that a pregnancy caused by rape must be proven by a medical certificate as well as expert explanation from the psychologist and police investigator. Regardless of the pros and cons of abortion legalization, the new government regulation has been in effect since the promulgation on 21 July 2014. (RA)
Legal Policy
Legal Aid Improvement Not Just About Budgeting Issue
On 15 August 2014, Indonesian President, Susilo Bambang Yudhoyono, delivered a routine state speech during the session together with the House of Representatives and House of Regional Representatives.
The President’s state speech mentioned quite a number of things in regard to legal reform in Indonesia. In addition to addressing the issue on legal mafias and corruption eradication, the President also emphasized the importance of legal aid for the Indonesian people. The President specifically expressed the need to increase budgeting towards legal aid, in order to ease the access of legal aid for the whole society.
The supporting position of the President towards the efforts of improving legal aid should be appreciated. The statement in his speech is also a form of implementation of the state’s commitments regulated in Law No. 16 Year 2011 on Legal Aid. Certainly, improving legal aid is not just about the nominal significance, but also the high political commitment towards the implementation of optimal legal aid.
In addition to the appreciation given, there were other important notes needed to be considered during the speech on legal aid. The speech was given in accordance to the Indonesian Independence Day was the last speech from Susilo Bambang Yudhoyono’s . His remarks on the topic to increase legal aid budget should be seen as an expectation, not a commitment going to be implemented by the government. The appeal stated by Susilo Bambang Yudhoyono still has uncertainty and it all, depends on the upcoming government. In addition to this, challenges while implementing legal aid is not only concerning budget, but also the complicated mechanisms to obtain the legal aid itself. This causes administrative difficulties to implement the legal aid; which hasn’t yet gone through the process to provide the legal aid itself. Other fundamental challenge is the unavailability to provide legal aid to remote areas of Indonesia. Legal aid providers are still only positioned in large cities, which add the difficulties for people in remote areas to obtain it.
With many other issues besides the lack of budgeting in the implementation of legal aid, the current administration should conduct a thorough evaluation.
The result should be handed over to the upcoming administration to be followed. As part of transparency duty to the public; the result should be publicized and accessible to all legal aid stakeholders. (FN)