Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-9, 2016 ISSN: 2454-1362, http://www.onlinejournal.in

The Effectiveness of Tulungagung Regional Regulation Number 25 of 2012 on Legal Aid for the Poor

Tri Astuti Handayani Faculty of Law Bojonegoro University

Abstract : The purpose of this study was to determine complexity of the procedures for obtaining legal aid the effectiveness of Tulungagung Regency regional to the poor, causing many poor people who until now Regulation of No. 25 of 2012 on Legal Aid for the exposed to legal issues but never get legal aid [1]. Poor. It aims to look at the factors behind the issue Provision and application of legal aid for the poor in of the regulation area Tulungagung Regency No. 25 Tulungagung Regency, hampered due to the absence of 2012 as well as the effectiveness of Tulungagung of regional regulations regulate it. Provincial Regency Regulation No. 25 of 2012. This study uses Regulation on legal aid is required for the legal aid empirical-normative approach. Source data used are provider, the recipient of legal aid, the authority set primary data and secondary data as well as data up, manage and regulate the legal aid (governing analysis using descriptive qualitative analysis. It can body), as well as financing. Although the be concluded that the forms of regulation on the government has allocated a budget for legal aid provision of legal aid Local Ordinance Tulungagung services for the poor but the access to justice for the No. 25 of 2012 on Legal Aid for the Poor, Regional people has not been met [2][3]. Regulation of Province No. 9 of 2012 on Have misunderstandings about the legal aid in Legal Aid for the Poor and Law Number 16 Year . That the legal aid budget was allocated to 2011 on Legal Aid. Consideration rights legislative officials lodged criminal cases. The true is the legal initiatives by the Tulungagung is a First, a concern aid intended for the poor across the country. In of the board members and Second, wisdom in practice, the poor or termed as the poor, it is still overcome issuing of Regional East Java Province difficult to get access to justice. Such access is the No. 9 of 2012. However, the provisions of Regulation road traversed by the public as justice seekers to seek No. 25 of 2012, was not able to apply for their redress in and out of court. The government should miraculous barriers ie, First, not been determined by advocate or advocate or organization itself always the decree, Second, differences in the system of aware that legal aid can be a means to protect and grants with the provisions of decree No. 3 of 2014 on ensure the implementation of the rights of society as procedures Budgeting, Execution, Administration, a seeker of justice [4]. Therefore, the right to legal and Reporting grants and Social assistance, and assistance by the government or advocate or Third, differences in governance systems legal aid advocate organization itself, is expected to pave the funds by Government Regulation No. 42 Year 2013 way for wide-open access to justice for people on Conditions and Procedures for Granting Legal seeking justice. Aid and Legal Aid Fund distribution. Generally, the poor do not discount enough knowledge of their rights in the existing system. Keywords: Legal Aid, Suspect, Defendant, Therefore, the provision of legal aid for the poor, but Criminal, Incapable and Poor. aims to be the poor know their rights, can also help poor people to fight for their rights. If the poor have to have a sufficient understanding of legal aid, it is 1. Introduction expected they will not feel 'lost before the war' when Challenge in the implementation of legal aid for facing legal problems [5]. the poor in Tulungagung Regency today is how to In the explanation of the general provisions of distribute effective services for citizens, especially paragraph 1 Tulungagung Regency Regulation No. the poor in Tulungagung Regency. In Indonesia there 25 of 2012 explained that basically in Tulungagung are several issues that become problems on non- Regency there is no regional regulations specifically fulfillment of the right to legal assistance, among ensure the implementation of citizens' constitutional them is the weakness of the country's commitment to rights, so that with the establishment of the the right to legal aid, have not consolidate the Provincial Regulation on Legal Aid for the Poor will institutions that provide legal aid services and the be the basis for local governments to implement the

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Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-9, 2016 ISSN: 2454-1362, http://www.onlinejournal.in constitutional rights of citizens in legal aid, Observational studies can be done with the test, particularly for poor people or groups of people [6]. questionnaire, recording images and sound During this time, the provision of legal assistance recordings [10]. In this case I asked for a response that do not yet touch many people or groups of poor directly to the residents in Tamanan Villgae people, so they are difficult to access justice because Tulungagung Regency about the effectiveness of it is hampered by their inability to realize their Tulungagung Regency Regulation No. 25 of 2012. constitutional rights. An arrangement regarding the c. Library Studies provision of legal aid to the poor in the Regulation is This method uses research and data collection a guarantee of the constitutional rights of a person or through the study of literature, that is used is group of poor people in Tulungagung regency. "material that has to do with the title, in which the From the description above, the purpose of this ingredients that I got through books, legislation, study; 1) determine what factors are behind the articles, and so forth". publication of Tulungagung Regency Regulation No. In this study, “a descriptive analysis of 25 of 2012 on Legal Aid for the Poor; 2) determine qualitative data is defined as a troubleshooting the effectiveness of Tulungagung Regency procedure investigated by describing or depicting the Regulation No. 25 of 2012 on Legal Aid for the state of the object or subject of research at the Poor. present time based on the facts of the data which appear". From the data obtained then connected with 2. Method each other to obtain the solution that an event is well understood. This research is a normative-empirical legal research (applied normative law). This research was 3. Result and Discussion conducted in Tulungagung Regency which covers A. Background factors the issuance Tulungagung the Legal Department of Regional Secretariat, Regency Regulation No. 25 of 2012 Committee A (Legal and Governance Board) Program providing legal assistance for the Regional Representative, and the Central Bureau of underprivileged is necessary and the expected Statistics. increase in the intensity of enforcement or legal This thesis uses data sources are primary data and assistance from year to year. Directions discretion of secondary data [7] [8] as follows: legal aid program for the people can not afford it, a. Primary data, is data and information obtained besides empowering presence and similarity laws for directly from government agencies in the whole society; it also aims to raise awareness and Tulungagung Regency. In this case the writer compliance with the laws of society, through the use make a direct research in several government of the rights provided by the state in terms of agencies in Tulungagung Regency, which are part defending the legal interests before the Court. Legal of the legal office of the Regional Secretariat of assistance is believed to give equality and guarantee Tulungagung Regency, Commission A (Legal against the entire society in the protection before the and Administration) Regional Representatives law from unlawful behavior. Legal aid is a Council of Tulungagung Regency, and the refinement of social security and into a system that Central Bureau of Statistics Tulungagung complements the protection of human rights. The Regency. principle of equality before the law should be b. Secondary data, the data received and obtained interpreted in a dynamic and should not be from the materials library. "The material is in the interpreted statically. This may imply that every form of all the publicity about the law which is human rights should be offset by an equal treatment not an official document". in order to form a protection is not able to be broken In the data collection process, do classify and due to various reasons such as social structure, and collect data in accordance with the type of data economic status. Right to legal assistance available collected, as follows: to everyone, especially the people can not afford for a. Interview him to get justice. Guaranteeing these rights "Interview is often also referred to an oral contained in international and national legal interview or questionnaire is a dialogue conducted by standards for the fulfillment of basic rights that have the interviewer to obtain information from been universally recognized. interviewees" [9], ie with Esty Purwantik, SH. MH. The right to legal aid is one of the most important as Head of Legal Assistance and Cooperation rights possessed by every citizen (access of legal Tulungagung Regency and Drs. H. Mashud as council). Because in any proceedings, especially Chairman of Commission A (Legal and criminal law, in general, any person designated as Administration) Regional Representatives Council of suspects in a criminal case, it may be able to defend Tulungagung Regency. itself in a process of law, in the examination of the b. Observation law against him. Thus it is not possible for a suspect in a criminal offense to defend against himself in a

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Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-9, 2016 ISSN: 2454-1362, http://www.onlinejournal.in legal process checks himself while he was a suspect follow-up of the Law on Legal Aid above. in a criminal charge against him that. Therefore the Tulungagung regency council members have the suspect / accused have the right and must be interpretation that the rise of the East Java Provincial accompanied by legal counsel. Legal aid is a right for Regulation due to the provisions of article 19 every citizen who is undergoing legal problems, in paragraph 1 and paragraph 2 of the Legal Aid Act. It particular criminal case. These rights are the most will serve as the basis of the same by the legislators precious rights for the suspect or the accused in a that Tulungagung Regency capable and able to make criminal case. The existence of legal aid was a provision in the legislation governing the intended to provide protection for the suspect who is implementation of the budget allocation of legal aid undergoing legal process, to prevent coercion, to the poor in the budget revenue and expenditure. So violation of rights, and the arbitrariness that may for the sake of it, so that the existence of legal aid for arise during the process of the case investigation, and the poor actually materialize, and done well it is provide defense for suspects, both examination levels necessary to Provincial Regulations as the law must investigations or in the examination at the trial level. be obeyed by citizens. Provincial Regulation on Society is not entirely able to access legal aid. To Legal Aid for the Poor is essentially a political obtain legal aid in a case, usually people use the decision effective utilization can be conducted in services of an advocate, which of course there will be several cities in Tulungagung regency. costs. The advocates services can only be used by Given the various problems that commonly occur at people in the group were able to pay for services the top, then the initiative of members of the board of advocate is expensive. That is not reached by the the Commission A DPRD Tulungagung Regency poor, so that legal services are only accessible to the along with the aspirations of society at a public rich. hearing, then in phase plenary session discussed by Before the enactment of Tulungagung Regency councilors as the initiator of a new law to discuss Regulation No. 25 of 2012, the product of this law is with the executive in terms this is a joint regent local the right of initiative of members of the board, in this government unit's legal department. After many long case the Commission A (part of law and process, then right on December 28, 2012 Regent of governance). Here are the background factors Tulungagung Regency assign Tulungagung Regency issuance of the regulation: Regulation No. 25 of 2012 on Legal Aid for the Poor 1. Concern of legislators Tulungagung Regency and then enacted by the Regional Secretary on The issuance of the regulation is a form of February 25, 2013. Thus, based on the processes and manifestation of concern and is a legal breakthrough procedures in the preparation a legislation, a draft that both members of the council as a representative regulation on the Legal Aid legally valid as Regional of the people to the poor. Because, basically, board Regulation after the enactment stage. members felt that the regulation is to be applied as a form of certainty and legal protection for the poor B. Effectiveness of Tulungagung Regency that obviously has not been there legislation that is Regulation No. 25 of 2012. able to accommodate the constitutional right of every In accordance with the procedures and phases citizen of the poor in Tulungagung Regency. As may be the passing of a legislation is through one of obvious with these rules, every poor as evidenced by the procedures that the promulgation, it is visible in a certificate is not capable of Village / Village shall the District Regulation No. 25 of 2012 on Legal Aid be given legal assistance free of charge to have for the Poor who validly enacted by Tulungagung access to justice, expediency and legal certainty. In Regency Regional Secretary on February 25, 2013 . addition the processes of preparation of legal aid for Thus, with the publication of these regulations, then the poor were originally inseparable from moral this becomes a creative breakthrough of an area to values, cultural, political, and legal philosophy. protect the right of every community in this case is Legal aid for the poor has a strategic position. for the poor. However, the current implementations of the rights In connection with the enactment of local of the poor to obtain legal aid have not shown regulations on the Legal Aid, in practice it still can significant progress since the general legal aid can not be implemented degan well because there are not be reached by the poor. It certainly raises some obstacles or barriers, so that the regulation of concerns as well question why legal aid can not be the area can not accommodate the entire accepted as a whole by the poor. The suffering of the constitutional rights of the poor. These obstacles poor when faced with legal problems seems like a include: common legal culture in Indonesia. 1. Absence of the decree regulating the implementation of the regional regulation, 2. The emergence of the East Java Provincial meaning that the decree is the extension in the Regulation No. 9 of 2012 hierarchy of law as the basis of technical After the enactment of Law No. 16 of 2011, the implementation and application of a regional East Java Provincial Regulation was issued as a regulation. The cause of the not issuing the

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Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-9, 2016 ISSN: 2454-1362, http://www.onlinejournal.in

decree on Bantan Law for poor people is not distribution can not be part of the implementation because there are still some problems which of the Regulation on Legal Aid area in hinder, among them the lack of clarity and the Tulungagung Regency. This happens because in overlapping process of distribution of funds for the midst of the process of drafting the decree on legal assistance from local government to Legal the distribution of legal aid funds to barriers with Aid is a partner in the provision of legal aid only the Government Regulation (PP) mentioned the poor who are facing lawsuits. above. Basically PP appeared three months after 2. The difference in the management principle of the enactment of regulations area Legal Aid, grants set out in the Regulation of Legal Aid area which means technical manual process of with a decree of Grants, meaning that the system drafting local regulation in the district / city does of financial management, especially in this case not wait first the PP, it happens because the is about the distribution of grant funds stipulated government of Tulungagung Regency has its own in the decree Tulungagung Regency No. 3 of concept in handle any of the above rules who 2014 on Procedures How Budgeting, Execution, most need to be followed up, so that the district administration, and Reporting Grants and Social government to follow up with their base ie the assistance, where in declaring that in chapter 1 issuance of the area of East Java Province verse 17 explains that, Grant is the provision of Regulation No. 9 of 2012 on Legal Aid for the money / goods or services from the local Poor. Over time with the PP above then comes government to the government or other regional the fundamental difference from the existing governments, a regional company, communities arrangements in Regulation area Tulungagung and civil society organizations, which have with the PP, the difference in principle is about specifically allocation, is not mandatory and not the distribution of funds legal aid stipulated in the binding, and does not continuously aiming to PP different from the rules in the Regulation of support the implementation of the Local Legal Aid in Tulungagung Regency , Described Government affairs. In the concept of grants set in the law Legal Aid that is meant to fund the cost out in regulation regents stated that the concept of of legal aid is provided annually by the Local grants in the form of financial assistance by the Government Budget (APBD) to finance the government of Tulungagung Regency must be implementation of legal aid to the poor. Then, if operated for one year and must be discharged, within 1 (one) year budget no poor people who and if the funds are left over it can not be apply for legal aid to legal aid giver, the grant restored, meaning that these funds can not be put must be returned by legal aid giver by way of back in District government, because they depositing funds to the Regional Treasury. The actually draft the grant in Regulation regents or provisions are fundamentally different from the local regulations Legal Aid must be zero in provisions stipulated in Government Regulation operational. It happened because at first the grant No. 42 of 2013, explained in article 27 paragraph process is done for the Regent has been appointed (1) and paragraph 28 (1): as a provider organizations the term is by name (1) Litigation Legal Assistance Fund by address, meaning the names of the recipients disbursement is done after completing the Case and users of these funds are clear and act as Legal Aid at every stage of the proceedings and executor. In the provisions of Article 24 of the Legal Aid Providers submit a report Regulation Tulungagung regency on Legal Aid accompanied by supporting evidence. (2) explained that: If within one (1) year budget no Distribution of non-litigation legal aid fund poor people who apply for legal aid to the Giver performed after Legal Aid completed at least 1 of legal assistance, the grants referred to in (one) activity in litigation activity packages as Article 22 must be returned by legal aid giver by referred to in Article 23 paragraph way of depositing funds to the Regional (3), and submit a report accompanied by Treasury. In the provisions of the above supporting evidence. regulations is contrary to the principle of grants Under these provisions meant that it should have in Tulungagung Regecy explaining that grant legal aid fund distribution process implemented self- funds are used in accordance with the action plan managed means aid disbursement process is carried outlined in the initial proposal filings submitted out at each stage of the case is completed. Obviously to the Regent, then when the grant was no poor in principle it is contrary to the provisions in the law applicants before then according to the principles Legal Aid Tulungagung Regency explaining that of Rule regent Grant that these funds can not be funds legal assistance is done by grants early in returned in principle contrary to the provisions in accordance with the proposal of a legal aid the Regulations on Legal Aid area. organization accredited appointed by Regents as 3. The emergence of Government Regulation No. implementing partners for local regulation of legal 42 Year 2013 on Conditions and Procedures for aid for the poor. Therefore, with various barriers and Granting Legal Aid and Legal Aid Fund obstacles to the implementation of regional

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Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-9, 2016 ISSN: 2454-1362, http://www.onlinejournal.in regulations Legal Aid Number 25 Year 2012 on top, [3] Dirdjosisworo Soedjono, Pengantar Ilmu Hukum, then from the Government of Tulungagung Regency, Rajawali Pers, Jakarta, 1983 in this case is the legal part of the Regional Secretariat will carry out a review together with the [4] Masriani Yulies Tiena, Pengantar Hukum Indonesia, legal part of East Java province about changes in Sinar Grafika, Jakarta, 2004. regulations exist in the area in August 2015, to be [5] Thalhah, M., Demokrasi dan Negara Hukum, Total adjusted by Government Regulation No. 42 of 2013 Media, Yogyakarta, 2008. and the provisions of other legislation that do not overlap in implementation and enforcement. [6] Wahjono Padmo, Indonesia Negara Berdasarkan Atas . Hukum, Ghalia Indonesia, Jakarta, 1982.

4. Conclusion [7] Ashshofa Burhan, Metode Penelitian Hukum, Rineka Cipta, Jakarta, 2007 Based on the discussion of the overall study entitled Effectiveness Tulungagung Regency [8]Ariekunto Suharsimi, Prosedur Penelitian Suatu Regulation No. 25 of 2012 on Legal Aid for the Pendekatan Praktik, edisi revisi VI, Rineka Cipta, Jakarta, Poor, we can conclude several things: 2006. a) Factors underlying the issue of the regulation area Tulungagung Regency No. 25 of 2012 is due to [9] Mahmud Marzuki, Peter, Penelitian Hukum, Kencana, the first, it is the shape and form of concern of Jakarta, 2009.

legislators Tulungagung and second, the issuance [10] Pranjoto W., Eddy, Modul Khusus Sistematika & of the area of East Java Province Regulation No. Uraian Menulis Karya Ilmiah Bidang Hukum, Pustaka 9 of 2012. Akhlak, , 2011. b) Tulungagung Regency Regulation No. 25 of 2012

can not be implemented, because the decree as the implementation regulation yet, there are different provisions in the area of financial . management systems set out in the decree of Tulungagung Regency No. 3 of 2014 on Procedures Budgeting, Execution, . Administration, and Reporting Grants and Social assistance with the provisions of Regulation No. 25 Year 2012 area, which is about the distribution

of legal aid funds. In this case the principle of regulation of the area is a grant, but if the funds are no poor people, the funds must be returned, so it is against the provisions in Regulation regent of grants that states that the grant was used according to the activities and can not be returned to area and the issuance of Government Regulation No. 42 of 2013 explains that the

provision for legal aid fund distribution is done by means of self-managed system of legal aid funds given at the stage of the process a case is resolved. This is contrary to the provisions in Regulation No. 25 of 2012 area which explains that legal aid funds provided to legal aid, by melting earlier in accordance with the legal aid activity planning proposal submitted to the Regent.

5. References

[1]Solihin Wardan Anang, Peduli Kemiskinan, PT Remaja Rosdakarya, Bandung, 2009.

[2] Asshiddiqie Jimly, Perihal Undang-Undang, Sinar Grafika, Jakarta, 2011.

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