Existence of Paralegals in Providing Legal Aid in Indonesia

Rima Vien P. H.

, Siany Indria L.

, Atik Catur B.

Civic Education, Sebelas Maret University, Surakarta, Central Java, Indonesia

Sosiology and Antropology Education, Sebelas Maret University, Surakarta, Central Java, Indonesia

Keywords: paralegals, legal aid

Abstract: Right to Justice (Access to Justice) is the constitutional right of every Indonesian citizen as mandated and

guaranteed in Article 27 (1) of the 1945 Constitution. The manifestation of the right to justice is, among

others, through legal aid to the poor and marginal. Legal aid in accordance with Law No. 16 of 2011

concerning Legal Aid formulates the role of paralegals, but the law does not regulate the definition and

duties of paralegals in providing legal aid. This study aims to discuss the existence of paralegals in the

provision of legal aid in Indonesia. This research is theoretical with a type of library research based on

literature and combined with bibliographic research that focuses on ideas contained in the theory. Result of

this research showed that the existence of paralegals in the provision of legal aid in Indonesia continues to

experience ups and downs. To be able to carry out its role in providing legal aid paralegals do need an

identity status and symbol recognized primary by the competent authority. But dilemma might occurs at the

level of government policy regarding the definition and position of paralegals in the legal system in

Indonesia; whether paralegals should be declared as a legal profession that has a place as a legal aid actor

recognized by the state like other private professions. Although the benefits that come from formal

recognition by the state can be accepted, this will eliminate independence and paralegals will enter the

administrative and bureaucratic trap; there is standardized training, certification and membership given or

removed by institutions that have authority based on government regulations.

1 INTRODUCTION

Right to Justice is the constitutional right of every

Indonesian citizen as mandated and guaranteed in

Article 27 (1) of the 1945 Constitution and the

manifestation of the right to justice is, among others,

through legal aid to the poor and marginal. The

provision of legal aid based on principle of equality

before the law.

The poor and marginalized need to get legal aid

because when they are dealing with the law, they

often face various obstacles to accessing justice. To

help the obstacles faced by the poor and

marginalized in accessing justice, the role of

intermediaries in this case paralegals who provide

assistance, support and service to the poor and

marginalized are very important. Especially in

Indonesia, when trained lawyers are very expensive,

paralegals are an important “tool” to improve access

of the poor to justice. Therefore the existence of

paralegals is needed in providing legal aid to the

poor and marginalized. But in practice, the

involvement of paralegals as stipulated in the law

on legal aid often faced problems. For example,

there are not a few judges and other law enforcers

who reject paralegals when providing legal aid to

accompany the judicial process and proceeding in a

trial.

Lack of recognition of paralegals in providing

legal aid severaly impedes the achievement of access

to justice, especially for the poor and marginalized.

Thia paper will elaborate the dynamic of existence

of paralegals in providing legal aid in Indonesia.

2 THE PROBLEM

How is the existence of paralegals in providing legal

aid in Indonesia ? Based on the formulation of the

problem this study aims to discuss the existence of

paralegals in the provision of legal aid in Indonesia.

P. H., R., L., S. and B., A.

Existence of Paralegals in Providing Legal Aid in Indonesia.

DOI: 10.5220/0009022800002297

In Proceedings of the Borneo International Conference on Education and Social Sciences (BICESS 2018), pages 477-481

ISBN: 978-989-758-470-1

477

3 METHOD

This research is theoretical with type of library

research based on literature or based on library

focusing on reading and analysis of the primary and

secondary materials and combined with

bibliographic research that focuses on ideas

contained in the theory. This research used a

statutory approach (statue approach) and concept

approach.

The legislative approach is carried out the

examine various laws and regulations ranging from

the constitution to various legislative regulations

governing legal aid and paralegals. While the

concept approach is carried out to explore various

related concepts in this case legal aid and paralegals.

4 LEGAL AID

Mauro Cappelletti said that legal aid had actually

been carried out in Western societies since Roman

times, when legal aid was in the moral field.

After

the outbreak of the French Revolution, legal aid the

began to become part of legal activities or yuridik

activities, which began to emphasize the equal rights

of citizens to defend their interests in court

proceedings, and until the biginning of the 20

century this legal aid was considers more as a job of

providing services in the legal field without a

reward.

The concept of legal aid appears to be closely

related to the fulfillment of access to justice,

especially for the poor and marginalized. In fact, it is

expressly stated that the concept of legal aid is one of

the newest alternatives raised in an effort to protect

the weak from the pressures imposed by the strong

(to hold back the strong from oppressing the weak).

Library based, focusing on reading and analysis of the

primary and secondary materilas. See Jhony Ibrahim.

2006. Teori dan Metodologi Penelitian Hukum Normatif,

Malang : Bayu Media Publishing, page. 46.

Abdulkadir Muhammad. 2004. Hukum dan Penelitian

Hukum.Bandung : PT.Citra Adiyta Bakti, page. 113.

Sr Mauro Cappelletti, Earl Johnson Jr dan James Gord

Ley, 1976, Towards Equal Justice, A Comparative Study

of Legal Aid in Modern Societies, Dobbes Ferry, New

York, page.6.

Bambang Sunggono dan Aries Harianto, 2009, Bantuan

Hukum dan Hak Asasi Manusia, Mandar Maju : Bandung,

pege.11.

Reginald Heber Smith in Akmal Adicahya

define legal aid (legal aid work) as a comprehensive

term that intends to describe all procedural reform

efforts carried out either by public bodies or private

entities whose purpose is to help the poor and the

marginalized get the assistence they need, especially

in dealing with legal issues.

In Indonesian context, there are at least three

categories of concepts of legal aid. First, the

concept of traditional legal aid that describes legal

aid as legal service to the poor and marginalized

given individually, the ingredients are only certain

individulas. Legal aid bades on this concept is very

procedural, normative and only looks at the legal

issues experienced by the poor and marginalized as a

legal problem. Second, the concept of constitutional

legal aid is more active and views the poor and

marginalized as not individuals but groups. The

purpose of the implementation of contitutional law

assistance is an effort to raise awarness of the rights

of the poor and marginalized as legal subjects and

the teaching of the velue og human rights. Third, the

concept of structural legal aid whose scope is far

wider than the two previous concepts. Stuctural legal

aid sees all activities need to be carried out to the

extent that they can create conditions for the

realization of a law that is able to change unequal

structures to a more just structure.

Based on the description above, legal aid can be

understood as all efforts made to fulfill the rights of

the poor and marginalized with various activities,

even the aid providers can be anyone as long as it

can change the lame structure that ensnares the poor

and marginal.

5 PARALEGAL

According Black’s Law Dictionary in Mulyana W.

Kusuma, paralegal is “a person with legal skills, but

who is not an attorney, and who works under the

supervision of a lawyer or no is otherwise authorized

by law to use those legal skills. Based on this

understanding, the so-called paralegal is someone

who has legal skills but is not a legal counselor

(professional) and works under the guidance of an

Akmal Adicahya, 2017, Pengakuan Terhadap Pihak Non-

Advokat Dalam Pemberian Bantuan Hukum (Politik

Hukum Bantuan Hukum Dalam Peraturaan Perundang-

Undangan di Indonesia), Jurnal Hukum dan Peradilan,

Vo. 6 No. 3.

BICESS 2018 - Borneo International Conference On Education And Social

478

advocate or who is judged to have the legal capacity

to use his or her skills.

D.J. Ravindran formulates the definition of

paralegal as follows: “a person who has basic

knowledge of law, both formal and formal law and

the motives, attitudes and skills to: implement

educational programs so that disadvantaged people

are aware of their rights; facilitate the formation of

popular organizations so that they can prosecute

and fight for their rights; assist in mediation and

reconciliation in the event of a dispute; conducting

preliminary investigations into cases that occurred

before being handled by lawyers; assist lawyers in

making statements (lawsuits / pleadings), collecting

necessary evidence and other information relevant

to the case at hand”.

Meanwhile, the definition of paralegal among

perpetrators of Legal Empowerment for example

used by Stephen Golub, “paralegals are laypersons,

often drawn from the group they serve, who receive

specialized legal training and who provide various

forms of legal education, advice, and assistance to

the disadvantaged”.

Vivek Maru provides a

formula that is not much different based on his

experience developing paralegal program in Sierra

Lion. It offers the definition of paralegal as,

‘laypeople with basic training in law and formal

government who assist poor and otherwise

disempowered communities to remedy breaches of

fundamental rights and freedom’.

It can be concluded that a paralegal is someone

who specifically helps the community (the poor and

the marginal), who because of special skills and

have legal knowledge (basic) and able to provide

services, legal education, guidance to the

community. The term paralegal describes a person

who has received special training in the field of legal

knowledge and skills to provide information and

assistance to resolve legal issues. Paralegals are a

name that emerges as a reaction to the powerlessness

Mulyana W. Kusumah, at all, (ed), 1991, Paradigma dan

Akses Masyarakat Terhadap Keadilan. Yayasan LBH

Indonesia, Jakarta, page. 27.

Ravrindan, D.J. 1989. Buku Penuntun untuk Pelatihan

Paralegal. Yayasan Lembaga Bantuan Hukum

Indonesia.page.1.

Golub, Stephen. 2006. “A House Without a Foundation,

“ dalam Thomas Carothers (ed), Promoting the Rule of

Law Abroad in Search of Knowledge, Washington, DC:

Carnegie Endowment for International Peace, page.171.

Vivek Maru. 2006. “Between Law and Society :

Paralegals and the Provision of Justice Service in Sierra

Laone and Worldwide”, The Yale Journal of International

Law, vol 31.page.29.

of law and the legal profession to understand,

capture and fulfill various social needs (community

rights).

6 RESULTS AND DISCUSS

Law Number 16 of 2011 concerning Legal Aid

raises the term paralegal as a legal aid provider. In

Article 9a of Law Number 11 of 2011 stated that

“Providers of lefal aid have the right to recruit

recruiters, paralegals....”. Furthermore, Article 10d

regulates the obligation of the Legal Provider to

provide education and legal aid training for

paralegals who have been recriutsd by Legal

Providers. These provisions form the basis of

juridical legitimacy for the existence of paralegals as

legal aid providers. Unfortunately this law does not

specify what authority these legal aid providers

have, especially in terms of providing legal aid. This

law only gives general authority as stated in Article

9b and c of Law Number 11 of 2011.

It was only in Government Regulation Number

42 of 2013 concerning the Terms and Procedures for

Giving Legal Aid and Distribution of Legal Aid

Funds, there are details of the authority to provide

legal aid as what can be done by lawyers, paralegals,

lecturers, and the law students. Referring to Article

13 of the government regulation, the provision of

legal legal aid in litigation is carried out by an

advocate who is a legal aid provider. However, if the

number of lawyers is inadequate, paralegals,

lectures, nd law faculty students can also provide

legal aid by attaching written evidence as assistance

from lawyers. Because it is mentioned in the same

article, it can be interptreted that “legal aid” referred

to in paragraph 3 is litigation legal aid as stated in

paragraph 1 below :

Article 13 Government Regulation Number 42 of

2013

1) Litigation of Legal Aid is carried out by the

Advocate status as administrator of Legal Aid

Providerand/or Advocate recruited by the Legal Aid

Provider.

2) In the case of the number of Advocate collected

in the contribution of Aid Provider The Law is not

adequate with the large number of Legal Aid

Recipients, Legal Aid Providers can recriut

paralegals, lecturers and students faculty of law.

3) In providing legal aid, paralegals, lecturers, and

law faculty students as referred to in paragraph (2)

must attach written evidence of assistance from

Advocates as well referred to in paragraph (1).

Existence of Paralegals in Providing Legal Aid in Indonesia

479

4) Law faculty students as referred to in paragraph

(2) must have pass the course law and paralegal

training courses.

Meanwhile, Article 16 explains that non-

litigation legal aid can be carried out by lawyers,

lecturers, paralegals, and law students. In contrast to

litigation law assiatence, the implementation of non-

litigation legal aid does not require lecturers,

paralegals, and law faculty students to show written

statements on mentoring from lawyers. From the

formulation of the article it can be concluded that in

fact the non-advocate legal aid provider in this

context especially by paralegals can convene before

the trial or carry out litigation remedies if the

number of lawyers gathered in the legal aid

organization is not adequate.

On January 26, 2018 the Minister of Law and

Human Rights promulgated the Minister of Law and

Human Rights Regulation (Permenkumham)

Number 1 of 2018 concerning Paralegals in Giving

Legal Aid. This Ministerial Regulation is a

derivative of Law Number 16 of 2011 concerning

Legal Aid. Menkumham’s regulation aims to achive

access to justice for everyone, especially the poor or

incapable in order to obtain guarantees in fulfilling

their rights to legal aid. One of the considerations

issued by Permenkumham is the ratio of the

population with the number of lawyers still very

unequal especially in remote areas of Indonesia.

Therefore, it has an impact on the difficulty of

people’s access to justice.

In addition to the imbalance of these ratios, other

factors that are taken into consideration by the

Ministry of Law and Human Rights, there are still

minimal advocates who carry out legal aid for free

(pro bono) whice is mandated by Law Number 18 of

2003 concerning Advocates.

But in April 6, 2018 a number af Advocates

registered a judicial review to the Supreme Court

(MA). Requests for judicial review that the Supreme

Court declare the Minister of Law ang Human

Rights regarding Paralegals null and avoid. At least

deciding Article 4, Article 7 paragraph 1, Article 11

Based on data from the National Law Development

Agency (BPHN), thenumber of advocates in Indonesia is

1,117. While the number of paralegals was 1,018 and 310

Legal Aid Organizations (Organisasi Bantuan

Hukum/OBH), in 2013-2015. While in the 2016-2018

period there was an increase, a number of 2,070 lawyers

and 2,130 paralegals, as wellas 405 OBH. From the data it

can be seen that there is an imbalance between the number

of OBH, lawyer and paralegals compared to the total

population of Indonesia in 81,253 villages.

and Article 12 of the Minister of Law and Humaan

Rights contradicts the Advocate Law. Finally, the

Suprame Court issued a Supreme Court Decision

Number 22 P/HUM/2018 of 2018 concerning the

case for a petition for judicial review of

Permenkumham 1/2018, and stated that Arcicle 11

and Article 12 of Permenkumham 1/2018

concerning paralegals in the provision of legal aid

contradicted legislation -higher invitation, namely

Law Number 18 of 2003 concerning Advocates.

Thus, paralegals cannot provide legal aid in

litigation.

This decision is certainly a step backward effors

to expand legal aid services and the principle of

access to justice. This is based on the fact that there

is a need to increase human resources that provide

legal aid services. Up to now there are at least 405

Legal Aid Organization (Organisasi Bantuan

Hukum/OBH) which provide service to 28,005,410

poor people. With this amount, one of OBH must

serve 67,000 poor people. Furthermore, the 405

Legal Aid Organization (Organisasi Bantuan

Hukum/OBH) are spread in 127 Regencies and

Cities. Even though there are at least 516 regencies

and cities recorded throughout Indonesia. That is,

there are still 389 Regencies and Cities that are not

covered by Legal Aid Organization (Organisasi

Bantuan Hukum/OBH).

In addition, the National Legal Development

Agency (BPHN) as the executor of providing legal

aid by the state also has limited budgets to be

allocated to 405 Legal Aid Organization (Organisasi

Bantuan Hukum/OBH) throughout Indonesia. As a

result, the handling of cases by Legal Aid

Organization (Organisasi Bantuan Hukum/OBH)

was limited by the quota set by he National Legal

Development Agency (BPHN) so that it could not

serve all requests for legal aid .

7 CONCLUSION

The existence and contribution of paralegals as one

of the legal aid actors for the poor and marginalized

is very much needed considering the ratio of the

availability of Legal Aid Organization (Organisasi

Bantuan Hukum/OBH) to the number of the poor

people and their distribution in the regions shows a

great need in the availability of legal aid services.

However, the existence of paralegals in the

provision of legal aid has not been fully recognized

and legally protected.

To optimize paralegals in providing legal aid, the

following are suggested :

BICESS 2018 - Borneo International Conference On Education And Social

480

1. Updating the Legal Aid Act concering the

definition of paralegals, the scope of paralegals, and

legal protection for paralegals in work.

2. The Ministry of Law and Human Rights tevises

the Minister of Law and Human Rights Regulation

No. 1 of 2018 in order to keep providing public

access to legal aid by paralegals by clarifying the

definition, function and scope of work while still

considering the Suprame Court Decision Number 22

P/HUM/2018 related to paralegals.

3. Advocates and advocate organizations affirm their

commitment to providing free legal aid (pro bono) to

the poor and marginalized as mandated in the

Advocate Law and Goverment Regulations.

4. The goverment ensure good standards for the

quality of legal aid services carried out by paralegals

while still coordinating with lawyers who are

members of legal aid organizations.

REFERENCES

Abdulkadir Muhammad, 2004, Hukum dan Penelitian

hukum. Bandung : PT.Citra Adiyta Bakti.

Akmal Adicahya, 2017, Pengakuan Terhadap Pihak Non-

Advokat Dalam Pemberian Bantuan Hukum (Politik

Hukum Bantuan Hukum Dalam Peraturaan

Perundang-Undangan di Indonesia), Jurnal Hukum

dan Peradilan, Vo. 6 No. 3.

Bambang Sunggono dan Aries Harianto, 2009, Bantuan

Hukum dan Hak Asasi Manusia, Bandung : Mandar

Maju.

Golub, Stephen., 2006. “A House Without a Foundation, “

dalam Thomas Carothers (ed), Promoting the Rule of

Law Abroad in Search of Knowledge, Washington,

DC: Carnegie Endowment for International Peace.

Jhony Ibrahim, 2006, Teori dan Metodologi Penelitian

Hukum Normatif, Malang : Bayu Media Publishing.

Mulyana W. Kusumah, at all, (ed), 1991, Paradigma dan

Akses Masyarakat Terhadap Keadilan, Jakarta :

Yayasan LBH Indonesia.

Ravrindan, D.J, 1989, Buku Penuntun untuk Pelatihan

Paralegal, Yayasan Lembaga Bantuan Hukum

Indonesia.

Sr Mauro Cappelletti, Earl Johnson Jr dan James Gord

Ley, 1976, Towards Equal Justice, A Comparative

Study of Legal Aid in Modern Societies, Dobbes Ferry,

New York

Vivek Maru, 2006, “Between Law and Society :

Paralegals and the Provision of Justice Service in

Sierra Laone and Worldwide”, The Yale Journal of

International Law, vol 31.

Legislation

The Indonesian 1945 Constitution (After Amandments).

Law No 18 of 2003 concerning Advocates.

Law No 16 of 2011 concerning Legal Aid.

Government Regulation Number 42 of 2013 concerning

the Terms and Procedures for Giving Legal Aid and

Distribution of Legal Aid Funds.

The Minister of Law and Human Rights Regulation

(Permenkumham) Number 1 of 2018 concerning

Paralegals in Giving Legal Aid.

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