Accessibility of Judicial Proceedings (ID0145)

Brief Description of the Commitment

As a response to the various reforms and adaptations made to the judicial process, it is necessary to look at the implementation and evaluate the extent to which the existing processes are in accordance with the needs and conditions of justice seekers and are accountable, including for vulnerable groups.

Problem Definition

1. What problem does the commitment aim to address? To ensure that the judicial process takes place in a fair and inclusive manner for victims, law enforcement officials have issued various regulations such as Supreme Court Regulation (“PERMA”) 3/2017 regarding Guidelines for Women Facing Judicial Procedures, PERMA 5/2019 regarding the Guidelines for Trying Marriage Dispensation Cases, Guidelines for the Prosecutor's Office 1/2021 regarding Access to Justice for Women and Children in Criminal Cases, up to Perkap 3/2008 regarding the Establishment of Special Service Rooms and Procedures for Examining Witnesses and/or Victims of Crime. However, the implementation of these existing policies has not been comprehensively assessed to see the extent they can support the provision of access to justice in the judicial process, especially for vulnerable groups such as women and disabled persons. The community and law enforcement officers have also encountered various obstacles during the judicial process—especially when Covid-19 entered Indonesia. To overcome obstacles to the judicial process during Covid-19, the government, law enforcement officials and legal aid providers as well as other support service providers adapted by establishing online channels that can be accessed and used by people who need and are dealing with the law. However, these online channels have not been comprehensively assessed to see the extent this adaptation can support the provision of access to justice in the judicial process, especially for vulnerable groups such as women and disabled persons.

2. What are the causes of the problem? When dealing with the law, justice seekers can encounter various obstacles. The results from the Access to Justice Index in Indonesia for 2019 also show that 10.8% of people do not know how to access legal dispute resolution mechanisms. Various other obstacles take the form of practices of violence, discrimination, re-victimization or bribery in the legal process by officials, and the inaccessibility of the legal process, leading to citizens not receiving justice from the legal proceedings. Furthermore, the Access to Justice Index in Indonesia for 2019 also shows that 18% of people were still asked for bribes outside of legal proceedings, 3% of people were subject to physical violence, and 18% experienced verbal/psychological threats during legal proceedings from officials in formal mechanisms. Even for vulnerable groups, access to justice through the legal process is increasingly hampered, such as persons with disabilities not receiving proper accommodation to access the legal process, women receiving minimal assistance during the legal process, up to the tendency of law enforcer officials to ignore the conditions and needs of children in legal proceedings. Barriers are encountered not only in the legal process but also in accessing legal institutions to obtain the justice needed by justice seekers. Therefore, it is necessary to review the implementation of the existing judicial process and ensure guarantees of protection in the judicial process, including for vulnerable persons.

Commitment Description

1. What has been done so far to solve the problem? During the period of the 2020-2022 OGI National Action Plan (RAN OGI), IJRS conducted research relating to the Assessment of Adequate Accommodation Needs for Persons with Disabilities during Legal Proceedings with the Attorney General’s Office (Kejaksaan Agung). This assessment can be used as a reference for carrying out the commitment proposed in this period, namely in drafting a technical regulation regarding adequate accommodation for persons with disabilities. In 2022, IJRS has also conducted initial research related to fulfilling the rights of women victims of violence in legal proceedings by carrying out an indexation of court decisions. This research can be used as a reference for monitoring and evaluating policies relating to the implementation of the judicial process.

2. What solution are you proposing? To minimize the obstacles faced by justice seekers and vulnerable groups who are facing legal procedures, it is necessary to ensure that existing policies relating to the provision of fair trials are well-implemented. To assess the progress that has been made, research needs to be done in order to monitor and evaluate the aforementioned policy implementation. Through this commitment, the research results obtained can be used as a reference, so that improvements and strengthening of policy implementations to ensure fair trials for justice seekers and vulnerable groups can be more evidence-based. By doing this, recommendations and steps for reform can be more targeted and based on the people’s needs. The presence of studies and legal certainty for accessibility and accountability of judicial proceedings can increase the access to the justice people need at every stage of a judicial proceeding. 3. What results do we want to achieve by implementing this commitment? A technical regulation regarding the provision of adequate accommodation for disabled persons can be a starting point in encouraging evidence-based policies. Additionally, it is hoped that the monitoring and evaluation carried out through this commitment can result in findings regarding women faced with judicial proceedings, the implementation of adaptations & digitalization efforts in the judicial process for vulnerable groups, as well as the accountability and transparency of law enforcer officials in the judicial process. These can become a reference for improving policies regarding judicial proceedings in Indonesia.

Commitment Analysis

1. How will the commitment promote transparency? N/A

2. How will the commitment help foster accountability? Guaranteeing the fulfillment of the rights of justice seekers and vulnerable groups opens the opportunity for the establishment of a mechanism for monitoring and evaluating the performance of institutions. Through the establishment of monitoring instruments for the implementation of a number of regulations that accommodate the rights of justice seekers and vulnerable groups, the judiciary can be held accountable as an institution.

3. How will the commitment improve citizen participation in defining, implementing, and monitoring solutions? The review and reform of legal aid policies for vulnerable groups involving civil society in the process is an implementation of participatory and inclusive principles. A legal process that is accessible and capable of fulfilling the legal rights of all members of society seeking justice, including vulnerable groups, is an effort to achieve the principles of participation and inclusion.

Commitment Planning (Milestones | Expected Outputs | Expected Completion Date)

Technical regulation regarding the provision of proper accommodation for disabled persons facing judicial proceedings | 1. Technical regulation regarding the provision of proper accommodation for disabled persons facing judicial proceedings with inputs from civil society 2. Report from training of law enforcement officials at the Attorney General’s Office as mandated by the technical regulation | 1. June 2023 2. December 2024

Monitoring and evaluation of law enforcers handling women facing judicial proceedings in judiciary institutions | 1. Tools for monitoring and evaluation of law enforcers handling women facing judicial proceedings in judiciary institutions 2. Report regarding results of monitoring and evaluation of law enforcers handling women facing judicial proceedings in judiciary institutions | 1. December 2023 2. December 2024

Evaluation of the implementation of digitizing judicial proceedings for vulnerable persons | 1. Research results on the implementation of digitizing judicial proceedings for vulnerable persons by law enforcement officials 2. Report regarding follow up results by law enforcement officials based on research results recommendations | 1. June 2023 2. December 2024

Action Plan Review

Commitment 11. Accessibility and accountability of judicial proceedings

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Modest

Supreme Court (MA), Attorney General’s Office (AGO), National Police (Polri), Indonesia Judicial Research Society (IJRS), Indonesia Legal Aid Association (PBHI), Women’s Association for Justice Legal Aid (LBH APIK)

For a complete description of the commitment, see Commitment 11 in Indonesia’s 2022–2024 action plan: https://www.opengovpartnership.org/wp-content/uploads/2023/01/Indonesia_Action-Plan_2023-2024_EN.pdf.

Context and objectives

This commitment is aimed at improving access to justice and was proposed by civil society groups—the Indonesia Judicial Research Society (IJRS), Indonesia Legal Aid Association (PBHI), and Women’s Association for Justice Legal Aid (LBH APIK)—in line with government priorities. Building on the 2020 Government Regulation on Adequate Accommodation for Persons with Disabilities in Judicial Proceedings, ^[32] this commitment entails introducing an implementation guidance in the Attorney General’s Office, [33] which was already issued in June 2023 during the initial implementation phase. [34] It builds on the previous action plan which developed this guidance, as well as issuing a similar circular letter in the Supreme Court and regulation for correctional institutions guideline. The commitment also plans to pilot a process for monitoring and evaluating how women are treated in the legal system. It also aims to evaluate the digitization of judicial proceedings for vulnerable persons, which is part of a long-term strategy. [35] These efforts could enhance civic participation in order to ensure an inclusive judicial process for persons with disabilities.

In the status quo, there is insufficient accommodation in the legal system which limits access to justice for the most vulnerable populations. A recent legal study shows that persons with disabilities (be it as victims, perpetrators, or witnesses) face discrimination in the judicial system. Police, lawyers, and judges are not sufficiently aware of the needs of persons with disabilities and often do not offer necessary accommodation. Physical barriers impede access to police stations, court houses, lawyers’ offices, and healthcare facilities for forensic evidence. Many persons with disabilities are also not aware of their rights. [36] The 2019 Access to Justice Index also found that, when faced with legal problems, women are somewhat less likely than men to resolve their issues through informal or formal mechanisms. More than one-third of women report they avoid taking legal action out of fear that it would complicate their problems. In discrimination and gender-based violence cases, 46% of victims are not able to take action. [37]

Potential for results: Modest

IJRS expected the Attorney General’s Office guidance could improve the treatment for persons with disabilities in the judicial system by providing guidance and raising awareness on adequate accommodation among prosecutors, lawyers, and legal counsel. [38] OGI adds that this effort is grounded in a productive working relationship between the Attorney General’s Office and IJRS. [39] However, according to the Center for Inclusion and Disability Advocacy Movement (SIGAB), in the absence of a regulation, the guidance may not be a sufficient legal basis to secure necessary financial resources to make adequate accommodations, such as installation of physical accessibility features and hiring relevant expert support. The Supreme Court has faced similar budgetary challenges since issuing its own guidance (in the form of a circular letter) under the previous action plan. As such, the results of this commitment will depend on sufficient budget allocation and institutional support to concretely improve accessibility accommodation within the Attorney General’s Office.

The commitment’s other milestones plan for research to establish baseline and identify obstacles to women and vulnerable populations’ access to judicial proceedings. However, the commitment does not include milestones to implement reform in response to research findings during the implementation period. Planned monitoring and evaluation of how law enforcers treat women in the judicial system will pilot a process that could be replicated by CSOs or other judicial institutions following the implementation period. The commitment does not offer specific information on how the monitoring and evaluation will be conducted, including whether it will be a collaborative process or whether the report will be publicly available. IJRS envisions that beyond the commitment, this could pave the way for adopting evidence-based regulations or developing necessary guidelines. For instance, if the monitoring and evaluation finds that law enforcers’ level of awareness of women’s issues is a major problem, policymakers could develop a solution focused on capacity building or training rather than issuing more regulations. [40] Finally, research on judicial proceedings’ digitization for vulnerable persons would offer a baseline assessment. Beyond this commitment’s planned milestones, this could contribute to the long-term digitization strategy. For each of these efforts, open government results will depend on uptake of research findings.

Despite limitations, this commitment lends momentum to an important effort to provide sufficient accommodation for persons with disabilities in judicial processes with strong government and civil society support. In the long term, investing in accessible justice institutions can allow all Indonesians to better defend their rights, demand equal access to public services, and protect their ability to participate in democratic processes.

Opportunities, challenges, and recommendations during implementation

The Attorney General’s Office has shown strong engagement in collaborating with CSOs and participating in the open government process. [41] The government’s ability to provide sufficient resources for this commitment’s implementation will likely depend on how milestones align with their work plans. Some officials at relevant institutions were not aware of the open government process, which could impact their support for implementation. [42] The IRM notes that fewer access to justice CSOs are engaged in this commitment compared to the previous action plan. Among those engaged, LBH APIK focuses on addressing gender-based violence. However, none of the CSOs involved specialize on advocating for persons with disabilities. With coordination across workstreams related to access to justice initiatives on disabilities and gender, the commitment could also generate support for the intersecting needs of these communities.

For strong implementation, the IRM recommends the following:

· Strengthen engagement in commitment implementation through CSO and OGI targeted communication efforts directed at relevant judicial institutions, including the National Police. The Attorney General’s Office and other implementers can proactively offer opportunities for participation to CSOs specializing in disability advocacy.

· Allocate sufficient budget to implement the Attorney General Office’s guideline or issue relevant regulations that provide sufficient legal basis to do so. Train judicial officers and lawyers on the guideline. If regulations are to be issued, develop these in consultation with representatives of the disabled community.

· Develop the study on digitizing the judicial process as a policy brief that provides short-term, medium-term, and long-term strategies for implementation, as well as highlights the different context and challenges of each judiciary institution. This could be done by, for instance, conducting a needs assessment for each of these institutions. [43]

· Deliver a systemic approach to the monitoring and evaluation of how law enforcers treat women in the judicial system based on the pilot project results.