PRO BONO - Right to Legal Aid

The right to legal counsel refers to the right of a person, in this case a criminal suspect/defendant, to be assisted by a lawyer in their defense, even if they cannot afford to pay for one. In international legal terminology, the term The Right to Legal Assistance is also known. It is a very important right, so that all other rights relevant to the implementation of a fair trial become useless if the right to legal assistance is not respected. International law related to human rights also considers the right to legal assistance to be a fundamental right that cannot be revoked or removed.

Fulfillment of Human Rights

The human rights paradigm refers to the principle of presumption of innocence for suspects or defendants in the judicial process. Fulfillment of this fundamental right means that the state must progressively use all its resources to guarantee the right to legal assistance. The state's responsibility as required by the constitution is very clear, namely that equality before the law and the right to be defended by a lawyer are human rights guaranteed in the context of social justice in the legal sphere, especially for underprivileged groups. The interpretation of Article 34 of the 1945 Constitution confirms the previous article, namely Article 28 D paragraph (1) of the 1945 Constitution, which states that every person has the right to recognition, guarantee, protection and legal certainty as well as equal treatment under the law.

It should be noted that the recognition of the rights of suspects or defendants has been formulated in the Universal Declaration of Human Rights, which is in line with the International Covenant on Civil and Political Rights, in which Articles 16 and 26 guarantee the right of everyone to legal protection and freedom from all forms of discrimination. At the same time, UN General Assembly Resolution 2200 A (XXI) dated December 16, 1966 requires guarantees to be given to a person in the investigation of a criminal offense, at least with regard to:

1. The nature and reasons for the charges, given promptly and in detail in a language they understand;

2. Sufficient time to prepare their defense and contact a lawyer;

3. Examination without delay;

4. Defense with legal assistance in every case, even without payment if they do not have sufficient funds to pay.

5. Examination of witnesses;

6. Free assistance from an interpreter;

7. Prohibition from being compelled to testify against oneself or to confess guilt.

Therefore, special efforts are needed in the legal field to help underprivileged groups obtain legal aid. In a broader context, Adnan Buyung Nasution defines legal aid in three interrelated aspects, namely:

1. The formulation of legal regulations;

2. The supervision of mechanisms for compliance with these regulations;

3. Public education to ensure that these regulations are understood.

Right to Legal Aid


Article 1 (1) of Law No. 16 of 2011 on Legal Aid states that Legal Aid is a legal service provided by Legal Aid Providers free of charge to Legal Aid Recipients. Legal aid recipients are defined as poor individuals or groups of individuals who are unable to fulfill their basic rights in a proper and independent manner and who are facing legal problems. The legal aid referred to includes: exercising power of attorney, accompanying, representing, defending, and/or performing other legal actions for the legal interests of legal aid recipients, all of which aim to:

1. Guaranteeing and fulfilling the rights of legal aid recipients to obtain access to justice;

2. Realizing the constitutional rights of all citizens in accordance with the principle of equality before the law;

3. Guaranteeing the certainty of legal aid provision that is carried out evenly throughout the territory of the Republic of Indonesia;

4. Realizing an effective, efficient, and accountable judiciary.

Legal issues that are eligible for legal aid are determined in a limited manner, namely: (i) criminal law issues; (ii) civil law; and (iii) administrative law, both litigation and non-litigation. The provision of litigation legal aid consists of: (a) assistance and/or representation starting from the investigation, examination and prosecution stages, to court hearings, and (b) assistance and/or representation in administrative courts. Meanwhile, the provision of non-litigation legal aid includes: legal consultation, case investigation, mediation, negotiation, assistance outside of court, and document drafting.

Legal aid is provided from the preliminary investigation stage through to the court hearing (Articles 54-56 of the Criminal Procedure Code), in order to ensure equal justice for all, including: (i) defense; (ii) representation both outside and inside the court; (iii) education; (iv) research; and (v) dissemination of ideas or concepts (Bambang Purnomo, 1993).

Supreme Court Circular Letter (SEMA) No. 10 of 2010 concerning Guidelines for the Provision of Legal Aid states in Article 25 that legal aid services provided by Legal Aid Posts can take the form of providing information, consultation and advice, as well as providing a free legal counsel to defend the interests of suspects/defendants in cases where the defendant is unable to afford their own legal counsel.

In this case, recipients of legal aid are entitled to: (i) Receive legal aid until their legal issues are resolved and/or their cases have permanent legal force, as long as the recipients of legal aid do not revoke their power of attorney; (ii) Receive legal aid in accordance with legal aid standards and/or the Advocate Code of Ethics; (iii) Receive information and documents related to the provision of legal aid in accordance with the provisions of laws and regulations. In addition, recipients of legal aid also have the obligation to: (i) Submit evidence, information, and/or case details truthfully to the provider of legal aid. (ii) Assist in the smooth provision of legal aid.

Criteria for Parties Eligible for Legal Aid

Article 27 of SEMA No. 10 of 2010 stipulates that those eligible for services from Legal Aid Posts are individuals who cannot afford legal counsel, particularly women and children, as well as persons with disabilities, in accordance with applicable laws and regulations.

Furthermore, Article 5 paragraphs (1) and (2) of the Legal Aid Law stipulate the qualifications of parties entitled to receive legal aid, namely poor individuals and groups of poor people. This law defines poor people as those who cannot fulfill their basic rights properly and independently. The basic rights referred to include the right to food, clothing, health services, education services, employment and business, and housing. Meanwhile, unable to meet their needs adequately and independently means unable to meet their daily needs, both for themselves and for others under their care, such as children, spouses, and others.

"Pro Bono" Legal Aid

Alongside the right to legal aid, people are certainly more familiar with the term pro bono, which literally means for the sake of goodness (Latin) or for the public interest, and is defined by The Law Dictionary: "A latin term meaning for the public good. It is the provision of services that are free to safeguard public interest."

Article 22 paragraph (1) of Law Number 18 of 2003 concerning Advocates emphasizes this, stating that advocates are obliged to provide free legal assistance to those seeking justice who are unable to pay, with the same attention as when handling paid cases (Article 4 letter f of the Advocate Professional Code of Ethics).

The requirements and procedures for providing free legal aid as referred to in the Advocate Law are further regulated by Government Regulation No. 83 of 2008. Article 2 of this Government Regulation reiterates the obligation of advocates to provide free legal aid to those seeking justice; this includes legal actions for the benefit of those seeking justice at every level of the judicial process, and also applies to the provision of legal services outside of court (Article 3).

The main concepts contained in Pro Bono are:

1. Broad range of legal work, meaning that Pro Bono does not only represent clients in the judicial system, but throughout the entire process from start to finish;

2. Voluntary, meaning that lawyers voluntarily choose the cases they will work on based on their reasons, abilities, and considerations (conscience);

3. Free of Charge, meaning that lawyers do not charge clients for the services they provide. However, it is still possible to cover other important needs, such as paying for expert witnesses. This must be discussed with the client and is not mandatory.

4. Underrepresented and Vulnerable, meaning that pro bono services are prioritized for communities that face socio-cultural barriers (underrepresented and vulnerable), such as indigenous peoples, people with disabilities, those who are financially disadvantaged, and marginalized groups.

In Indonesia, non-profit organizations that generally accept pro bono cases are Legal Aid Institutions (LBH). One of them is YLBH Ruang Pustaka Keadilan, which was initiated and supported by the Prayudi & Partners Law Firm.