Achmad Shiva’ul Haq Asjach
Scholar ID, Sinta ID, Scopus ID, WoS ID
A rule of law
state does not merely position law as an instrument for regulating power, but
also as a means to realize justice and protect citizens’ rights. One concrete
form of state protection of citizens’ rights is the provision of access to
justice, including legal aid for indigent communities. In the Indonesian
context, this is realized through Law No. 16 of 2011 on Legal Aid, which
regulates the state’s obligation to provide free legal assistance to
economically disadvantaged individuals. However, the existence of this law has
generated debate, as some groups argue that the state should not finance legal
aid for the poor and consider this provision to be contrary to the 1945
Constitution of the Republic of Indonesia.
In my view, Law
No. 16 of 2011 is in fact a concrete manifestation of the principle of the rule
of law and does not conflict with the 1945 Constitution. On the contrary, this
law represents a constitutional mandate that is consistent with modern theories
of the rule of law, particularly the concepts of the democratic rule of law and
the welfare state. In a rule of law system, every citizen must have equal
standing before the law. This principle cannot be realized if only individuals
with financial capacity are able to access legal services and obtain legal
representation in court.
A.V. Dicey
explains that one of the fundamental elements of the rule of law is equality
before the law, meaning that all citizens must receive equal treatment without
discrimination (Dicey, 1959). In practice, economically disadvantaged
individuals often face financial barriers in obtaining legal counsel or legal
assistance, resulting in an unequal position when dealing with judicial
processes. Therefore, state-funded legal aid is an effort to create equal
access to law and justice.
In addition, the
rechtsstaat theory also places the protection of human rights as an
essential element of the rule of law. Friedrich Julius Stahl emphasized that a
rule of law state must guarantee the fundamental rights of citizens, including
the right to legal protection (Asshiddiqie, 2010). The right to legal aid is
essentially part of human rights, as every individual is entitled to legal
defense when facing legal issues. Without legal aid, impoverished individuals
risk losing their rights due to legal ignorance and economic limitations.
From the
perspective of the welfare state, the state is not only tasked with maintaining
security and order but is also obliged to actively ensure social welfare and
justice for society. This concept has developed on the basis that modern states
bear responsibility for reducing social inequality and protecting vulnerable
groups. Legal aid is one form of public service that must be provided by the
state to ensure that all citizens have equal access to the justice system (MD,
2011).
When related to
the 1945 Constitution of the Republic of Indonesia, the provision of legal aid
has a very strong constitutional foundation. Article 1 paragraph (3) of the
1945 Constitution states that Indonesia is a state based on the rule of law.
Consequently, the state is obliged to guarantee legal protection for all
citizens without discrimination. In addition, Article 27 paragraph (1) of the
1945 Constitution affirms that “All citizens shall have equal standing before
the law and government and shall uphold the law and the government without
exception.” This provision indicates that the state must ensure equal access to
law, including for economically disadvantaged communities.
Furthermore,
Article 28D paragraph (1) of the 1945 Constitution states that every person has
the right to recognition, guarantees, protection, and fair legal certainty. The
right to legal aid is part of such protection and legal certainty. Therefore,
if the state fails to provide legal aid for indigent persons, the principle of
equality before the law will remain merely a formal concept without real
implementation.
Groups opposing
state-funded legal aid generally argue that legal aid is the personal
responsibility of each citizen and that state funding would burden the public
budget. However, in my view, such a perspective is too narrow when seen from
the standpoint of a modern rule of law state. A rule of law state is not only
oriented toward formal legality but must also ensure substantive justice. In
reality, economically disadvantaged individuals are often in a weaker position
when dealing with law enforcement officials as well as parties with greater
economic and political power. Therefore, the state must be present to ensure
balance and justice in legal processes.
In addition,
state funding for legal aid should not be viewed as a form of budgetary waste,
but rather as an investment in the enforcement of justice and the protection of
human rights. A legal system that is accessible only to the wealthy will create
public distrust toward the law and judicial institutions. In the long term,
such a condition may undermine the legitimacy of the rule of law and democracy.
Nevertheless, I
also argue that the implementation of legal aid must be strictly supervised to
prevent budget misuse and mere formalistic practices. The state must ensure
that legal aid is genuinely provided to those in need and implemented by legal
aid organizations that are professional, independent, and have integrity.
Transparency and accountability in the management of legal aid funds are also
essential to ensure that the objectives of the rule of law can be optimally
achieved.
Thus, based on
theories of the rule of law, the existence of Law No. 16 of 2011 on Legal Aid
is in fact an implementation of the principles of a democratic rule of law and
a welfare state in accordance with the 1945 Constitution. The state has a
constitutional obligation to guarantee equality before the law and access to
justice for all citizens, including economically disadvantaged groups.
Therefore, state-funded legal aid is not a deviation from the constitution, but
rather a concrete manifestation of the state’s responsibility to protect
citizens’ rights and uphold social justice.
References
Asshiddiqie, J.
(2010). Constitution and constitutionalism in Indonesia. Jakarta: Sinar
Grafika.
Dicey, A. V.
(1959). Introduction to the study of the law of the constitution.
London: Macmillan.
MD, M. M.
(2011). Building legal politics, enforcing the constitution. Jakarta:
Rajawali Pers.
Marzuki, P. M.
(2017). Introduction to legal studies. Jakarta: Kencana.
Soekanto, S.
(2014). Fundamentals of legal sociology. Jakarta: Rajawali Pers.
Thaib, D.
(2011). Theory and constitutional law. Jakarta: Rajawali Pers.
Post a Comment