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The Indonesian

National Ombudsman Commission


(2000-2007)

Editor:
Prof. DR. C.F.G. Sunaryati Hartono, SH

National Ombudsman Commission


INDONESIA
2007
Table of Content

Introduction

Ombudsman: To Oversee Public Administration and to Combat


Corruptive Practices
by Antonius Sujata 3

Preparing a Parliamentary Ombudsman: The Indonesian Experience


by Antanius Sujata and RM Surachman, SH APU 117

The Complaint Handling Procedure of the National Ombudsman


Commission
by Patnuaji A. Indrarta 27

The Indonesian National Ombudsman Commission as Protector


of Citizen's Right and Human Rights in General
by Prof. DR. C.F.G. Sunaryati Hartono, SH 33
The Indonesian National Ombudsman Commission (2000-2007)

Introduction

As one of the great steps towards democratization and bureaucratic


reform, former President Abdurachman Wahid established the Indone-
sian National Ombudsman Commission by Presidential Decree No. 44 of
the year 2000, on the following considerations:
a) That empowerment of the citizens and their participation to-
wards a clean, honest and transparent government, free from
corruptive practice shall be secured;
b) That the empowerment of the citizen's oversight over the
implementation of state's organs and apparatus is part of the
democratization process, and shall be upheld in order to mini-
mize and prevent the abuse of power and authority by state's
officials;
c) That the state, as part of its duty to provide justice and ~ros
perity to the people, shall secure the proper exercise of the
need for public service, including attending the proper ser-
vices of the judiciary to the public;
dl In the meantime a Bill on the Indonesian Ombudsman Institu-
tion shall be prepared which shall consider the aspirations of
society in order to provide a more complete and effective
regulation on Ombudsmanship for Indonesia.

The President of the Republic of Indonesia thereby established an


independent oversight commission under the name of the National Om-
budsman Commission (art. 1 Presidential Decree). Furthermore the
same article of Presidential Decree No. 44 of the year 2000 provides
that the NOC shall:
a. Oversee the activities of the state's organs; and
b. Secure the rights of the citizens

Whilst article 2 indicates, that:


"The INOC is an independent oversight institution based on the Pan-
casila (Five Principle of the State) having the authority to request clari-
fications from state officials/organs and monitor or investigate the com-
plaints of the citizens on the performance of the state officials, includ-
ing on the (misconduct and performance) of the judiciary, in particular
those related to the public service they have to prOVide".

More specifically according to article 3 the Ombudsman has as its


objectives
a. To promote the conditions which are conducive to the eradi-
The Indonesian National Ombudsman Commission (2000-2007)

cation of corruptive, collusion and nepotism.


b. To improve the protection of the rights of the citizens in or-
der that they may obtain or enjoy better public service, jus-
tice and prosperity.

Article 4 of the above mentioned Presidential Decree has given 4


(four) tasks, i.e.:
1. To promote the public awareness (tasks, objectives and au-
thority) of the Ombudsman;
2. To improve coordination and cooperation with governmental
institutions, universities, NGO's, experts, practitioners, pro-
fessional organizations and society at large;
3. Follow up the complaints or information given by the public
concerning mishaps, maladministration and/or abuses of
power of government officials in the execution of their duty
and in providing their services to the public;
4. Preparing the National Ombudsman Bill.

This booklet is meant to provide the reader a bird's eye of the ac


tivities of the Indonesian National Ombudsman Commission since it was
first installed by former President Abdurrachman Wahid on the 20 th of
March 2000 until today.

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The indonesian National Ombudsman Commission (2000-2007)

OMBUDSMAN: TO OVERSEE PUBLIC


ADMINISTRATION AND TO COMBAT CORRUPTIVE
PRACTICES
By Antonius Sujata

Introduction

One of important dates that the speaker will never forget is 20


March 2000. On that day in the newspapers, mostly printed here in the
Indonesian Capital, you might read that the President in his Palace in-
augurated the eight CommissionerslNational Ombudsmen. And yet most
Indonesian people until then, even up to now, is seeking the answer of
what the "ombudsman" is. .
With the Offices of the National Ombudsman in Tajikistan and Azer-
baijan there are now 111 Ombudsman Institutions in the World. They
were created a year or two after the Ombudsman Office in Bangkok was
established in April 2000.
In some countries, like in Canada, India, Italy, and the United
States, there is no National Ombudsman at all. Indonesia follows those
countries that established Local Ombudsmen side by side with the Na-
tional Ombudsman like in Argentina, Australia, Pakistan and United
Kingdom. In line with the new autonomous local governments, all the
local ombudsmen in Indonesia will be autonomous and independent. In
other words, the local offices are not under the leadership of the Na-
tional Ombudsman. According to Gottehrer, the Past President of USOA
(United States Ombudsman Association), altogether there are now 130
National and Local Ombudsman Institutions in the world_
The Swedish word of ombuds means "legal representative". The
word and function of "ombudsman" has been very popular there. Hence,
the trade unions, political parties, public as well as private corporations
have their own ombudsman. However, the most independent ombuds-
man in Sweden is the parliamentary ombudsman called justitieombuds-
man (the ombudsman of justice), or "JO".
The authority of JO is to oversee the application of law by the pub-
lic service, military, and judiciary. Whenever there is diversion of law
or apparently there is abuse of power, the JO will investigate it and
give the recommendation and even it may prosecute the particular bu-
reaucrat, military officer and judge who has allegedly violated the law
or abused of authority. Accordingly, those who think they have been
the victims of maladministration may lodge complain to the JO.
The JO is a parliamentary ombudsman since he sends special as well

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The Indonesian National Ombudsman Commission (2000-2007)

as annual reports to the Swedish Parliament (Riksdag) that elected him.


Most ombudsmen in the world are parliamentary ombudsmen, or in the
United States: legislative ombudsmen. The variants of it are found in
some countries, where the ombudsmen are appointed by the Head of
State (the King, the Queen or the President). Still, they are responsible
to and send the reports to the Parliament. For example, the Queen ap-
points the Parliamentary Commissioner, or the English Ombudsman, on
the advice of the Prime Minister after consulting the leaders of the op-
position parties.
As mentioned earlier, most ombudsmen are parliamentary ombuds-
men. There are, however, ombudsmen elected by the Head of State and
they send the report to the Head of State, not to the Parliament.
Hence, they are executive ombudsmen. Ombudsmen of the Republic of
Korea, Pakistan, Indonesia and Tunisia belong to this group. One of the
variants is the French Ombudsman, or Ie mMiateur de la Republique
that is appointed by the Cabinet. Also he sends report to the Head of
state. Without having full independence, still the executive ombudsmen
play significant role in protecting rights of the public and in improving
the rigid application of regulations and practices.
To be true, in the beginning, the development of Ombudsman insti-
tutes was very slow. Not until 1920 that the Ombudsman Office of
Finland was established as the second Ombudsman in the world. This
event was more than 100 years after the birth of the Swedish Ombuds-
man Office in Stockholm in 1809. The history recorded that even in
1970s there were about only 10 National Ombudsmen on the planet of
Earth. New Zealand is the first English speaking country outside Europe
to establish a National Ombudsman in 1962. It was oriented to the Dan-
ish Parliamentary Ombudsman, a variant of Classic Ombudsman estab-
lished in Copenhagen in 1955. At last, in 1980s the ombudsman concept
has spread widely almost to half of the globe.

The Law Reform in Indonesia

The recent reformation movement in Indonesia reaffirmed that the


independence of the judiciary must be fully guaranteed not only in
rules, but also in real life. At the same time, the courts must be
strengthened by the promotion and recruitment of impartial judges.
Those efforts are conditio sine qua non to the recovery of the present
crises of Indonesian economy and to the realisation of good governance.
In light of the current situations in Indonesia, "Komisi Ombudsman
Nasional", or the National Ombudsman Commission was established. The
inception of the Commission was based on the Presidential Decree Num-
ber 44 of the Year 2000. At present, at the Office, there are only 5 Com-
missioners/Ombudsmen, since two of the Commissioners resigned in

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The indonesian National Ombudsman Commission (2000-2007)

2000 and another one last year. One of them is Professor Bagir Manan
who was later elected by the Parliament as the Chief Justice of Indone'
sia. A new Commissioner/Ombudsperson was just appointed this month.
She is a retired Justice (Deputy Chairman of the Appellate Court of Ja-
karta Special Province).
In concreto, the establishment of the Commission was one of the
commitments of the Indonesian Government to reform the laws and
institutions in pursuing a better and clean administration and to en-
hance the realisation of good governance. In other words, the establish-
ment of the Commission is to prevent those authorities in pUblic sector
to abuse their power; to assist those authorities in performing their jobs
efficiently and fairly; to compel those authorities for maintaining the
accountability.
For those purposes the Commission was given the mandates:
(1) to accommodate the social participation in conditioning the
realisation of clean and uncomplicated bureaucracies, .good
public service, professional and efficient justice administra-
tion as well as fair and impartial trial by independent judici-
ary;
(2) to promote the protection of individuals in getting the public
service, justice and welfare and in defending his rights
against illegal actions or omissions and irregular practices re-
sulting from abuse of power, corrupt practises, collusion,
nepotism, undue delay, deviation and improper discretion;
(3) to enhance the supervision of the government institutions and
agencies including the judiciary by sending clarifications, que-
ries, and recommendations to those target groups (reported
institutions and agencies), followed by uninterrupted moni-
toring of their compliance to the recommendations;
(4) to prepare the transforming of the present Commission into
the more effective, autonomous, and independent National
Ombudsman of Indonesia by drafting the Bill of the National
Ombudsman of the Republic of Indonesia to be submitted ex-
peditiously to the Indonesian Parliament (OPR).

In short, the immediate objective of the Commission is inter alia to


pursue the realisation of the clean and effective bureaucracies in pro-
viding good services to the public as well as the realisation of the credi-
ble and professional law enforcement agencies including the account-
able and independent judiciary based on the rule of law.
The long-run objective of the Commission is inter alia to pursue the
realisation of good governance in the context of the civil democracy
that respect human rights and fundamental freedoms and maintain
equal opportunity and justice for all.

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The Indonesian National Ombudsman Commission (2000-2007)

The Commissioners/Ombudsmen are always aware that the exis-


tence of the Ombudsman Commission will be recognised by almost-if
not by all- segments of the Indonesian People. The Commissioners/
Ombudsmen try to carry out the mandates seriously and sincerely to the
best of their efforts just for the interest of those who feel they have
been victimised by maladministration, or defective administration in the
form of, inter alia, abuse of power, abuse of discretion, arbitrariness,
undue delay, inappropriateness, procedural deviation, injustice, and
unfair as well as not impartial adjudication.
For two and half year the Commission has been existed and the let-
ters of grievance logged by the complainants -from 22 March 2000 to 20
September 2002- has reached not less than 2503 letters. The greater
part of which (36 %) is about the courts of all kinds (except the martial
courts) and tiers. This year - from 1 January 2002 to 20 September
2002- the Commission received 268 letters of grievance. Still, the
greater parts of them are about the courts (38 %). It reflects none other
than how the Judiciary in Indonesia has failed to perform its duties in
providing justice far all. In short, the malpractices conducted by the
courts have reached the point of intolerable.
Therefore, the Commission has to race the time and to serve people
with better performance to maintain the right momentum and to gain
the public trust. Otherwise, the people will soon be disappointed be-
cause they do not receive their expectations.
To be true, in the later months, the letters of grievance lodged to
the Commission have somewhat decreased. This does not mean that the
Commission become one of unpopular offices in Indonesia. It seems now
the public are aware what the real remit of the Commission in defend-
ing his interest is.
In the meantime, very recently every two weeks the Commission
arrange interactive dialogues or outreach in the television to which the
relevant Public Authorities or Justices are invited. As a result, it is ap-
parently that the letters of grievance lodged to the Commission have
substantially increased. To anticipate the latest situation, the Commis-
sion decided to recruit more Assistants Ombudsman/Investigators very
soon.

To reform the Judiciary in Indonesia

The Commission is of the opinion that good governance is not only


for the part of the Executive Branch of Government, but also for the
whole state admihistration. In the whole political system of Indonesian
Government, beside the Executive Branch i.e. the President and his
cabinet ministers, there are also the Legislative Branch of Government
and the Judiciary. It is of great importance, that the essential meaning

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The Indonesian Nationa( Ombudsman Commission (2000-2007)

of law reform in the context of Indonesia is the reform of the law en-
forcement and the courts.
In the administration of justice, the judges play key roles in applying
and interpreting laws to the end that people see that justice has been
done. Particularly, in the administration of criminal justice, the judges
review the result of investigation integrated in the dockets prepared by
the law epforcement agencies. One way to reform the law enforcement
is the participation of the people to monitor the work of those respec-
tive agencies, with the aim of guaranteeing that the government be-
come more responsible and independent
To reform the judiciary means to place the right administrative per-
sonnel as well as the right judges on the right places, and also to make
all the judgements and the rulings of the courts are more transparent
and accountable to the interest parties and people.
Except from the review remedies such as appeals and retrials, in the
legal framework of Indonesia, until some years ago a judge was im!J1une
from any critics, any sanctions, and any prosecutions for their judge-
ments and rulings.
This untouchable system based on the "principle of independence of
judiciary" and "legal certainty". Unfortunately, the unfair and not impar-
tial judges misused those principles as the shields and weapons for their
selfdefence when someone criticised, attacked, or accused them.
There should be a system or solution to review those judicial malprac
tices and also there should be an institution vested with the authority to
monitor, to evaluate, and to take measures against those prejudiced
judges.
The Commission therefore suggested that the reform of Judiciary be
the top priority. With reference to the Indonesian present situation,
equity and substantial truth are of the more significance then the for-
mal norms.

Further steps and measures

Like any Ombudsman Offices in other countries, the National Om-


budsman Commission of Indonesia do not intend to compete or to op-
pose 0 priori the bureaucracies, government agencies, and courts. On
the contrary, the Commission want to help them to have a better image
as the very right and good servants of the people. In other words, the
Commission want to bridge the people and the public authorities.
It is worth of notice, that recently there is a harsh critique on a jU-
dicial corruption in Indonesia by a foreign author. By referring to
McLean, Professor Susan Rose-Ackerman points out, that "In Jakarta,
Indonesia, 'justice' belongs to the high bidder."
Accordingly, the priority targets of the Commission for the first year

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The Indonesian National Ombudsman Commission (2000-2007)

are the performance of the administration of criminal justice in Jakarta


and the neighbouring towns. Yet, the Commission received letters of
grievance encompassing other matters from quite remote areas of Indo-
nesia, such as from Borneo, Celebes, Sumatra, and West Papua. Even
though we are determined to our priority scheme, all letters are proc-
essed without delay and without discrimination.
It is interesting enough, that accidentally the first letter of griev-
ance is about a forge judgement of the Supreme Court lodged by a re-
tired Military Medical Doctor. Blown up in the press, it instantly got very
wide public support. The case then was transferred to the Police for
further enquires, since the power of the Commission to conduct investi-
gation is very limited. Unfortunately, for one or another reason, the
Police has been very reluctant to process the case. At least, the Com-
mission has successfully blown the whistle and confirmed its existence.
The unfair judges in Indonesia apparently are now aware, that the
"'independence of judiciary principle" is not good excuse anymore when
they are accused of selling their judgements and rulings. They are
aware now that there is a new zealous watchdog in Indonesia dubbed as
"'the National Ombudsman Commission"'.
Moreover, anyone who thinks that he has the victim of malfeasance
or injustice now without doubt and without fear may any time to lodge
complaint to the Ombudsman Commission.
On the other hand, the Commission has been careful in carrying out
its supervision to the courts. Otherwise, the Commission may be re-
garded as the violator of the "'independence of judiciary principle". Like
in most countries, the present constitution and law of Indonesia bearing
the stipulations to the effect that no one may intervene or influence the
courts. However, the Commission has repeatedly warned the courts
that, as long as it is a matter of procedure, not a matter of substantive
case, the Commission will always monitor the relevant case for the in-
terest of complainants with the recommendations that every public
hearing by an impartial tribunal has to be fair and impartial.
As Sir Brian Elwood, the Chief Ombudsman of New Zealand cum the
President of 101 (International Ombudsman Institute) points out, "'the
Ombudsman could provide an effective method of ensuring openness
and accountability in the regard to the performance of judicial func-
tions; and if the principle that no one should beyond review" there is no
reasons why the judiciary should be "exempt from the concept of open-
ness and accountability." In this context, Sir Brian Elwood also reminded
that the first Ombudsman Institution in Sweden is a justitieombudsman,
which has the authority to scrutinize the courts and even to prosecute
judges.

International Recognition

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The Indonesian National Ombudsman Commission (2000-2007)

Soon after the establishment of the National Ombudsman Commis-


sion, some Commissioners visited the Ombudsman Offices in Australia,
Austria, Belgium, Denmark, England, France, Finland, Germany, Repub-
lic of Ireland, The Netherlands, New Zealand, Norway, Spain, Sweden,
Swiss, and United Kingdom and also the European Ombudsman Office in
Strasbourg and its branch in Brussels.
Moreover, the Ombudsman Commission actively participated in the
following International as well as Regional Workshops, Seminars, and
Conferences on Ombudsmanship:
1. The 1'h Conference of the International Ombudsman Institute
(101) in Durban, South Africa (30 October - 2 November 2000).
2. The 5th Conference of the Asian Ombudsman Association (AOA)
in Manila, the Philippines. (17-20 July 2000)
3. The 6th Conference of the Asian Ombudsman Association (AOA)
in Tok~o, Japan (18-21 June 2001)
4. The 7t Conference of the Asian Ombudsman Association '(AOA)
in Beijing, Peoples" Republic of China (21-242002)

This week, one of the Commissioners/Ombudsmen is in Illinois to


participate in the 23'd Conference of the United States Ombudsman As-
sociation (USOA) in Chicago (1-4 October 2002). And next month, the
Speaker will participate in the 20th Australasian and Pacific Ombudsman
Conference in Sydey, Australia (5-6 November 2002).
Further, the Ombudsman Commission successfully organized Na-
tional Seminars in Jakarta (3-5 July 2000) and in Surabaya (6 July 2000).
The objective of the seminars was to introduce the new Commission
with its vision, mission, and mandates. Apparently, those seminars had
international colours, since in addition to some positive responses re-
vealed by many segments of the Indonesian public, the Ombudsman
Commission received international recognition too. This has happened
since four of the speakers were the prominent figures of the interna-
tional ombudsmanship from the 101 (International Ombudsman Insti-
tute), the Netherlands, Sweden, and Australia.
In addition to the aforementioned activities, in February 2002 UNDP
transferred the financial aid from the members of the "Partnerships for
Good Governance Reform in Indonesia" to fund several small projects of
the Ombudsman Commission. One of the projects is the preparing of the
establishment and the development of local ombudsmen in the context
of enhancing the good governance by autonomous local governments in
Indonesia. It must be noted, that those local ombudsme will be autono-
mous and not the part of or under the control of the Ombudsman Com-
mission in Jakarta. They are independent, since nobody may intervene
or influence their functions and authorities.

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The Indonesian National Ombudsman Commission (2000-2007)

Likewise, the Australian Government (AusAidj in May 2002 funded


the project of Investigation Training for the Indonesian Ombudsmen, the
Assistants, and some Oficials from the Central as well as Provincial Gov-
ernment.
Meanwhile, the Asian Foundation continues granting financial aid for
the third work year of the Ombudsman Commission. Due to the lack of
financial resources, the development of human resources has been fac-
ing many hampers. Therefore, the role of the Asia Foundation as one of
the patrons of the Ombudsman Commission is of great significance. This
year the Asia Foundation also funded 9 of the 12 projects proposed.

To Oversee Customs Service and Taxation Office

Few months ago, IMF suggested that the Custom Ombudsman and
the Taxation Ombudsman be established independently in Indonesia.
In Indonesia, the Custom Service and the Taxation Office is respec-
tively under the leadership of the Director General of Custom Service
and the Director General of Taxation. The Department of Finance is the
mother-organization of both agencies. Hence, The Minister of Finance is
the Boss of the both Directors General.
The idea of creating an independent Custom Ombudsman and Taxa-
tion Ombudsman as suggested by IMF is a good idea, since it is in line
with the commitment of the present Government to pursue good gov-
ernance in Indonesia.
However, the Ombudsman Commission is of the view that such Cus-
tom Ombudsman and Taxation Ombudsman will be not very efficient
and it will amount to a big waste. To be true, as mentioned earlier, ac-
cording to the Presidential Decree on the Ombudsman Commission, the
scrutiny of maladministration, or defect administration of all bureauc-
racies, government institutions, and other public institutions including
the judiciary is the jurisdiction or the authority of the Ombudsman Com-
mission. Needless to say, that both the Indonesian Custom Service and
the Indonesian Taxation Office are government institutions. Hence, the
Ombudsman Commission is the right institution for the victims of malad-
ministration dealing with both agencies to lodge their complaints or
grievances. In other words, the establishing of the Custom Ombudsman
and Taxation Ombudsman will be duplicating the system.
After several meetings and discussions, the Directorate General of
Custom Service approached the Ombudsman Commission with a proposal
to make a joint co-operation in processing or handling the complaints
received by the Custom Service or by the Ombudsman Commission. The
two institutions agreed that a Memory of Understanding should be made
encompassing the allegation of maladministration and the violations of
Custom Code of Conduct or Professional Standard.

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The Indonesian National Ombudsman Commission (20002007)

Later both sides are ready to prepare the MoU, under which the Om-
budsman Commission and Minister of Finance jointly make guidelines of
complaint handling. The Sections under both of Directorates General
that has long existed and empowered to make an audit and investigation
on complaints to each agency must be strengthened and effectuated. In
other words, those Units must be reorganized and transformed into in-
ternal but independent complaint handling units.
Moreover, it is contemplated, that segments of general public might
have wide access both to the Ombudsman Commission and that Units.
Besides, it i the policy of the Ombudsman Commission that it will use
wide discretion to transfer most, of the complaints received to the Cus-
tom Service Complaint handling unit or to the Taxation Office handling
unit for the audit and or the investigation. On the other hand, the Om-
budsman ommission will have the power to take over any complaint be-
ing processed by the units, provided the particular complaint is deemed
not free from conflict of interest or unfairness or partiality. In addition,
the Ombudsman Commission will have the power to review "judgn'ients"
of the Units, if complainant is not satisfied with the conclusions and
recommendations of his complaint. In other words, the Ombudsman
Commission will be the last resort (ultimum remedium) for the com-
plainants.
One should notice, however, in Indonesia there is an Inspector Gen-
eral at each Government Department including the Department of Fi-
nance. Unlike in the United States, the Inspectors General in Indonesia
are not Independent Supervising Officials. They are under their Govern-
ment Minister and do not have the authority to send their reports di-
rectly to the President or to the Parliament. As a result, the Minister of
each Department practically may intervene any audit results, investiga-
tion results, or inspection results of his Inspector General. Hence, it has
been anticipated the relation between the Internal Complaint Handling
Unit of the Custom Service as well as of the Taxation Ombudsman with
the Inspector General of the Department of Finance. In other words,
und.er the umbrella of the Ombudsman Commission, those Units will be
more independent and impartial then the Inspectors of the Inspector-
ates General. As we have seen, in Indonesia the Inspector General of
Department of Finance may be intervened by his Boss: the Minister of
Finance.
All in all, those principles and procedural works are formulated un-
der the MoU between the Ombudsman Commission and the Department
of Finance. Then on 9 September 2002, the Chief Commissioner!
Ombudsman and the Minister of Finance signed jointly this MoU.

Ombudsman Commission and the corruptive practices

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The Indonesian National Ombudsman Commission (2000-2007)

Another milestone in the history and journey of the Ombudsman


Commission is 9 November 2001. On that date the Indonesian super leg-
islative assembly, or the People's Consultative Assembly (MPR), issued
the Resolution Number VlllfMPRf2001 concerning the recommendation
on the policy of the nation Le. indonesia must be free from corruption,
collusion, and nepotism, or KKN (Korupsi, Kolusi, Nepotisme). The rec-
ommendation includes a mandate to prepare an Ombudsman Act.
Before the People's Consultative Assembly issUed that Resolution, in
addition to the Presidential Decree No. 44 of Year 2000, there was no
other legal basis for the Ombudsman Commission.
The significant meaning of that Resolution encompasses three essen-
tials matters, namely:
First, it is a recognition as well as strong desire that the Ombudsman
is an important pillar in fighting against corruptive practices. Second,
the existence of the Ombudsman CornmiSsion needs legal basis. Third,
"Ombudsman" as the title of the institution is recognised and accepted.
Now, let you hear a littlejoke about the corruptive practices in in-
donesia. It is said that "to steal something worth of less than one mil-
lion, you will be promptly detained for investigation; to corrupt public
finance in the amount of billions, you will be questioned without being
detained; to corrupt public finance in the amount of billions and bil-
lions, you will be acqUitted by court, since it is a matter of policies not
of crimes."
That joke reflects none other than how worst the corruptive prac-
tice, or KKN in this country is. Indeed, it has become endemic for many
decades, To be true, corruptive practices, for the majority of Indone-
sian civil servants, public authorities, politicians, and judges as well
justices have become their way of life.
For that reason, some suggest that in the future the National Om-
budsman of Indonesia must be vested with extended big power to com-
bat corruptive practices, like the Ombudsman Offices in the Philippines,
Vanuatu, Ghana, Namibia, Sudan, Uganda, and Zambia. In other words,
those offices have shifted from'the position of the "Magistrature of Influ-
ence" into the "Magistrature of Sanctions".
The National Ombudsman Commission, however, never contem-
plated of having such wider power, because Lord Acton says "power
tends to corrupt, absolute power corrupts absolutely". The National Om-
budsman will stick to the present mandates, to oversee maladministra-
tion, public service, and injustice. This does not mean, that the corrup-
tive practices are beyond the Commissioners' concern. Any way, the
speaker is now one of the members of the Commission of the Establish-
ment of the Anti-Corruption Agency. This fact has. guaranteed that the
corruptive practices have been one of the concerns of the Ombudsman
Commission.

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The Indonesian National Ombudsman Commission (2000-2007)

What is more, the Ombudsman Commission believe, that maladmin-


istration and malfeasance may lead to corruptive practices, or KKN.
Thus, when, in the course of investigation, the Ombudsman Commission
finds any indicators leading to corruptive practices, the findings will be
transferred to other Agencies having the jurisdiction to investigate such
cases.
In one of the public hearings arranged by the Parliament recently,
some MPs suggested that the future Ombudsman be integrated into the
future AntiCorruption Agency. The Ombudsman Commission rejected
this suggestion with the argument that the integration will jeopardise
the independence and impartiality of Ombudsman Institution. The Na-
tional Ombudsman also explained that in some countries, the anti-
corruption division or unit is under the leadership of the National Om-
budsman.
As Gottehrer, an American expert, reveals, there are about 60 uni-
versal principles of ombudsmanship. The most important of those Winci-
ples are independent, impartial, fair, credible, and confidential. Unlike
court judgement, however, Ombudsman recommendation is not legally
binding and yet the interest group or the institutions reported generally
want to comply with the Ombudsman recommendations. The motive
behind their attitude is they know, that to comply with the recommen-
dations will increase the image of their institution, will effectuate their
performance, and will save them from any allegations or bias.
Unfortunately, the responses and the compliances of the targets
group to the enquiries and recommendations of the Ombudsman Com-
mission are under our expectations. The present situation, however, is
far better than the earlier situation. All the Commissioners/Ombudsmen
believe that in the future the responses and compliances will reach the
zenith.

Concluding Remarks

The National Ombudsman Commission at present is just


a"Magistrature of Influence" and established based on the Presidential
Decree. Yet the Commission has proved as an independent watchdog
and has become the bridge between the citizens and the authorities or
between the victims of defective administration and the bureaucracies
or between the interest parties and the courts. In the beginning, the
responses of the authorities, bureaucracies, and courts to the queries
and recommendations of the Commission were rather slow and tanta-
mount to undue delay.
At the same time, both the Ombudsman and the judiciary are inde-
pendent institutions and yet in Indonesia both institutions should com-
pliment each other. In other words, the National Ombudsman Commis-

13
The Indonesian National Ombudsman Commission (20002007)

sion "has a role in the struggle to obtain justice and must find ways to
contribute to minimize the excesses of the judiciary."
Accordingly, the author would like to emphasise the conclusion of
the report of Panel C at the 5'h Asian Ombudsman Association Confer-
ence in Manila, the Philippines, stating that:

The Ombudsman and the judiciary can work hand~inhand toward


the promotion of transparency and accountability without infringing on
each other's independence. Therefore, each country must adopt its own
system of check and balance between the judiciary and the Ombudsman
to ensure that justice is effectively dispensed, and that indeed, no one
is above the law.

In this context, it is also good to quote some paragraphs of the


"Ljublana Conclusions" made at the end of the Ombudsman Seminar in
Ljublana, Slovenia (1213 November 2000):
The powers of the ombudsman in relation to the judicial branch of
power may only be such that they do not jeopardise the independence
of judges and their impartiality in making judicial decisions. The inter-
vention, where permitted by law, of the ombudsman in an individual
matter being dealt with by a court must respect complete independence
of the court from any kind of outside influence in the adjudicative func
tions of the court, but may address procedural aspects of the admini-
stration of individual cases. We appreciate that in some countries, om-
budsmen have the possibility to present courts with their opinions in the
role of "amicus curiae". (Point 4).
In cases where the law does not provide any special powers to om-
budsmen in relation to the courts, ombudsmen may nevertheless, under
their general powers, express views concerning the functioning of the
judicial system. (Point 5)
Meanwhile, the mandate of drafting the Bill on the National Om-
budsman Commission is already fulfilled. It contemplates inter alia the
establishment of a more effective, autonomous, and independent Par-
liamentary Ombudsman, in which the Chief Ombudsman and his Senior
Deputy are elected by Parliament like their counterparts existed in Den-
mark, New Zealand, and Ireland. In addition, there will be independent
local ombudsmen in the future after the local governments in Indonesia
get a wider autonomy.
The draft of the Bill has been submitted to the President of the Re-
public, the Ministry of Justice, and the Legislature. The Special Commit-
tee on Legislation of the Parliament (DPR) is now reviewing it. The Com-
mittee then will introduce the revised draft as the Bill On Indonesian
Ombudsman to the Plenary Session of the Parliament.
In the future, it needs to be taken into account if the National Om-
budsman is just simply a monitoring institution or a kind of institution

14
The Indonesian National Ombudsman Commission (2000-2007)

vested with the investigation power and subpoena power like those ex-
isted in Austria, the Netherlands, Spain, and Sweden or a kind of institu-
tion having the mandate to do mediation between the complainants and
the authorities like the one existed in France known as MMiateur de (0
Republique and those existed in some Francophone countries.
All the Commissioners/Ombudsmen believe that in not distant future
a more effective, autonomous, and independent Parliamentary Ombuds
man of Indonesia established by an act like its counterparts in other
countries of the world will be a reality.

15
-
The Indonesian National Ombudsman Commission (2000-2007)

16
The Indonesian National Ombudsman Commission (2000-2007)

PREPARING A PARLIAMENTARY OMBUDSMAN:


THE INDONESIAN EXPERIENCE*
By Antonius Sujata H
and RM Surachman'"

To be sure, the ombudsman system is one of the pillars of de


mocracy respecting and promoting the rule of law. One cannot
find any precedent in the modern history of civil democracy
about the abolishing of a National Ombudsman 1
Still, an independent supervision and controlling institution
known as the Ombudsman Office is a novelty for Indonesia.
On the contrary, there is always an Inspector General of a Min
istry in Indonesia. He is the Top Official of the Inspectorate Gen
eral. His authority is to oversee and inspect all divisions of the Min
istry. All complaints regarding the conduct and behavior cif the
public servants in the Ministry will be under his scrutiny. Yet, the
Inspectors General are under the leadership of their Ministers.
Hence, they have to report annually to their Ministers. In other
words, they are not independent.
Additionally, like in many countries of the world, in Indonesia
there is an Auditor General, which is more independent in oversee
ing public institutions or state administration. However, its juris
diction is limited to the financial affairs only.
Meanwhile, the DPR (Dewan Perwakilan Rakyat), ar the Indane
sian Parliament now is not a rubber stamp of the Government like
it was in the era of the past regime. It has been the symptom today
that the Indonesian Legislature dominantly controls the Executive
Branch of Government.
And yet, in the present era of reformation in Indonesia an in-
dependent agency empowered to scrutinize the public admini-
stration is needed in pursuing the good governance based on the
rule of law and equity with respecting the human rights.
The National Ombudsman Commission was established under Presi

Paper submitted to the 6th Asian Ombudsman Conference inTokyo, Japan (18
21 June 2001) .
.. Chief Ombudsman; Commissioner of the National Commission of Human Rights
(19992000); Deputy Attorney General (199899); Visiting Expert of UNAFEI, To
kyo, Japan (1897); Member of AOA (Asian Ombudsman Association) .
Deputy Ombudsman; Research Professor eqv, Member of WLP (World Asso
ciation of Law ProfessorsWashington DC, USA); WJA (World Jurist Association)
National President for Indonesia.

17
The Indonesian National Ombudsman Commission (2000-2007)

dential Decree Number 44 Year 2000. The leadership of this Commission


is granted to Chief Ombudsman Antonius Sujata. The Commission, which
consists of eight ombudsmen including the Chief Ombudsman, was inau-
gurated on 20 March 2000 in the palace of the President.

The Mandates

As a matter of fact, the establishment of the Commission is one of


the commitments of the Indonesian Government to reform the laws and
institutions in pursuing a better and clean administration. For that pur
pose, the Commission was given the mandates: 2
1. To accommodate the social participation in conditioning the
realisation of clean and simple bureaucracies, good public ser
vice, professional and efficient justice administration as well
as fair and impartial trial by independent judiciary.
2. To promote the protection of individuals in securing public
service, justice and welfare and in defending his rights against
illegal actions and irregular practices resulting from abuse of
power, corruption, collusion, discrimination, undue delay,
deviation and improper discretion.
3. To effectuate the supervision of the government institutions
and agencies including the judiciary by sending clarifications,
queries, and recommendations to those target groups
(reported institutions), followed by uninterrupted monitoring
of their compliance with the recommendations.
4. To prepare the transforming of the Commission into a more
effective, autonomous, and independent Parliamentary Om-
budsman by drafting the Bill on the National Ombudsman to
be expeditiously submitted to the Legislature within six (6)
months.

The Commission is of the opinion that good governance is for the


whole state administration. The whole system of state administration
consists of the executive, the legislature, and the judiciary. As a result,
in the context of Indonesia, the essential meaning of law reform is the re-
form of the law enforcement and the judiciary"
To reform the law enforcement means to make those who enforce the
law respect due process of law and human rights; maintain fairness and
firmness; resist temptation of lucrative bribes and illegal facilities.
To reform the judiciary means to place the right administrative per-
sonnel as well as the judges on the right places and to make all court
judgments as well as rulings transparent and controllable by the interest
parties.
It has been known to the public in Indonesia, that the judges who are

18
The Indonesian National Ombudsman Commission (20002007)

not fair and not impartial manipulate the principle of independence of


judiciary. Besides, the judges are immune from any critic, sanction, and
prosecution or litigation for their judgments and rulings.
The Commission accordingly is given the mandate to monitor, to
evaluate, and to take measures against those unfair judges. And in the
first year of its operation the overseeing of the performance of the crimi-
nal justice administration became the priority targets.
Accidentally, the first letter of grievance is about a forge judgment of
the Supreme Court lodged by a retired Military Medical Doctor. Blown up
in press, it instantly got very wide public support. 4
Apparently, the unfair judges in indonesia are now aware, that they
are not untouchable any more, since there is a new zealous watcher
called "The National Ombudsman Commission".
in the meantime, the mandate of drafting the Bill on the National
Ombudsman is already accomplished. Professor Sunaryati Hartono, the
Deputy Chief Ombudsman composed the first draft. Then based on this
great work, Professor Bagir Manan, former Ombudsman redesign~d and
improved the draft. The Commission called it Draft II. Ombudsman
Surachman combined the both drafts and after several reviews by the
Commission through discussions and through several seminars, Draft VII
became the final draft of the Commission.
in March 2001 the Commission sent Draft VII to the Department of
Justice and Human Rights for review. After the review the Department
of Justice and Human Rights will send the final draft as a Bill to the in-
donesian Parliament.
The final draft contemplates inter alia the establishment of a
mare effective, autonomous, independent National Ombudsman. it will
be elected by the Parliament like those exist in New Zealand, Denmark
and the Republic of Ireland.
As previously mentioned, the draft of the Bill has been discussed
many times. For example, in a two-day international seminar (3-4 July
2000) in Jakarta the draft was discussed in the present of two foreign
Chief Ombudsmen and two former Ombudsmen. They are Dr. Claes Ek-
lundh from Sweden, Sir Brian Elwood from New Zealand and concurrently
the President of 101, Dr. Marten Oosting from the Netherlands, and
Hon. John Td. Wood from Australia.
Also the draft has been discussed in several national seminars held in
Jakarta, Surabaya, Banjarmasin, and Macassar. There were some partici-
pants who opposed to the existence of the future National Ombudsman,
though. They argued, that there had been many agencies in indonesia
having the power to oversee the public administration.They were of the
opinion that the National Ombudsman would become another ineffective
supervising and controlling institution. They suggested that the present
supervising agencies be effectuated and restructured.

19
3 77

The Indonesian National Ombudsman Commission (2000-2007)

Most of the audience supported the establishment of a Parliamentary


Ombudsman in Indonesia anyway after they have known the missions,
characteristics and the success of the ombudsmanship in the history of
modern civil democracy.
All in all, the draft has been reviewed for several times for there
have been many inputs and suggestions after the Commission made com
parative study tour in Australia and New Zealand; the Philippines and
South Africa; Austria, Belgium, France, Germany, lreland, the Nether-
lands, Spain; and the United Kingdom; the Nordic Countries: Denmark,
Finland, Norway and Sweden; and in Strasbourg, the venue of the first
supranational Ombudsman Office i.e. the European Ombudsman.
Let the audience know the procedural activities of the Commission
mandated under the Presidential Decree Nr. 44 Year 2000. When the Com-
mission discovers any kind of maladministration, it will ask clarification
from target group (related institution and agency). Next, it will give
recommendation to the target group with the notice that the case is be-
ing monitored. Even if on the surface it is legal or not in contradiction
with law and regulations, the Commission will do the same. In short, it
is possible for the Commission to dispose the case based on equity. The
Commission categorizes a maladministration as any action done actively
or passively by any government institution or agency in the form of un-
due delayed, inappropriate, arbitrary, deviate decisions or actions or ap-
parently it is a result of faulty procedure, abuse of discretion and abuse
of power, or it is in contradiction with law and regulations.

The Draft and the Constitutional Provisions'

In the 5th Asian Ombudsman Conference held in Manila, the Philip-


pines last year (16-21 July), Mr. Dean M. Gottehrer'suggested that Mr.
Antonius Sujata, the Chief of Indonesian delegation, subscribe to OMB_
GOV@usombudsman.org. Mr. Gottehrer was enthusiastic to learn that the
Commission is drafting the Bill regarding the National Ombudsman of Indo-
nesia and promised to read Presidential Decree and the Draft of the Bill.
Also it was revealed that he had read 130 acts regarding Ombudsman
around the world, and found out that 54 constitutions of the world have
basic provisions on the Ombudsman. We must add to the list of Mr. Got-
tehrer, however, the Constitution of Thailand. Recently, in 1997 it ac-
commodated the basic provisions on the Ombudsman Institution.
The Commission then received Mr. Gottehrer's paper: "Ombudsman
Legislative Resource Document".The International Ombudsman Institute
(101), Faculty of Law, University of Alberta in Edmonton, Alberta, Canada
published it as Paper 1165. According to that great work, there are four
constitutional principles and fifty-nine principles on the ombudsmanship
As mentioned earlier, Draft l and Draft 11 were combined following a

20
The Indonesian National Ombudsman Commission (20002007)

checklist made out of the findings and the inputs from the comparative
study opservation in mostly European countries. It was surprised, that
even the checklist is shorter it is similar to the international and univer
sal principles of ombudsmanship.
In the meantime, there is no mandate under the Presidential De
cree, that in addition to prepare the draft of the Bill, the Commission has
to make efforts of getting the MPR (The People"s Consultative Body)' to
insert some basic provisions regarding the National Ombudsman of Indo-
nesia into the 1945 Constitution. And yet, the Commission is contemplat-
ing that in not distant future there are basic provisions regarding the exis-
tence of the Ombudsman Institution under the constitution.
"J Now let us focus on Draft Vll of the Bill on the National Ombudsman of
Indonesia and the constitutional provisions of many countries. The Com-
mission satisfied that the final draft generally reflects the following con
stitutional provisions:'
The purpose of establishment stating that the Ombudsman is
a "legislative body's representative", or an "officer of the leg-
islative branch of government." The purpose is to ""ensure that
injustice is not committed by the public administration against
the individual, that public administration has the highest stan-
dards of competence, efficiency and justice in the administra-
tion of laws and that human rights are protected and pro-
moted"" (Constitutionol Principle 1)
The jurisdiction of the legislative body in prescribing the
functions, duties, and authorities of the Ombudsman under
an organic act, or basic law.' (Constitutional Principle 2)
The conditions for the removal of Ombudsman based on in-
teratia incapability of permanent physical as well as perma-
nent mental illness or misconduct. (Constitutional Principle 3)
The independence of the Ombudsman. This means in discharg-
ing his functions, duties, and authorities, the Ombudsman shall
not subject to the direction or control of any other person or
authority." (Constitutional Principle 4)

The Commission must wait, however, the time when the MPR amend
the 1945 Constitution and give rooms for some basic provisions on the
Ombudsman in Indonesia.

The Draft vis-ii-vis the Gottehrer principles 10

The Commission has named those international and universal princi-


ples of the ombudsmanship as the "Gotehrrer principles", or "G-
principles".
let us check the principles from close-up angles. Apparently, Draft

21
The Indonesian National Ombudsman Commission (2000-2007)

VII reflects most of Gottehrer principles:


The reasons of the establishment and the purpose of the Na-
tional Ombudsman of Indonesia.This is G-principle 1. (See
Chapter Two of Draft VI I.)
The qualifications to be Ombudsman, or G-principle 6. (See
Chopter Seven.)
To be impartial and independent the Ombudsman may not hold
any incompatible position, such as a political party member or
a judicial officer. This is G-principle 7. (See Chapter Seven.)
Tenure of the office and the eligibility to be re-elected as seen
under G-principle 8. (See Chapters Seven and Eight.)
The removal of the Ombudsman based on the incapability,
such as permanent physic as well as permanent mental illness
and misconduct, or G-principle 12. (See Chapter Seven.)
The Ombudsman shall refrain from investigation or examina-
tion of cases in which he has an interest in it. The purpose of
this G-principle 14 is to ovoid the conflict of interest. (See
Chapter Eight.)
The authorities of the Ombudsman, or G-principle 18 must be
detailed in the Acts. (See ChapterThree.)
Ex-officio investigation, or the authority to initiate the inves-
tigation without complaints.This is G-principle 20. (See Chap-
ters Three and Five)
Who may lodge grievances or reports is G-principle 22. (See
Chapter Four.)
The jurisdictions of the Ombudsman and the categories of pub-
lic agencies and institutions should be described, or G-principle
23. (See ChapterThree).
The categories of grievance and reports. (G-principle 24). Also
under this principle is the discretion of the Ombudsman not to
investigate or to examine the grievances or reports. (See Chap-
ters One, Two and Five.) Note also the statute of limitation_
(See Chapter Four.)
The G-principle 25 dealing with the obligation of the Ombuds-
man to keep the grievance and report confidential. (See Chap-
ter Five.)
The procedure rules starting from the grievances received
through the cases prosesing and disposal in the from of dis-
coveries, conclusions, and recommendations.This is G-
principle 26. (See Chapter Five.)
The access to any public or confidential records is G-principle
34. (See Chapters Five.)
The power to enter the public premises.This is G-principle

22
37. (See Chapter Five.)
The power "to summon, to subpoena, to compel production
of any records and the presence of any person to give lesti-
mony under oath" in the process of investigation, or G-
principle 38. (See Chapter Five.)
The authority to give recommendation to any government
institutions or legislature on the amendment of law, or G-
principle 45. (See ChapterThree.)
The G-principle 48 dealing with the immunity. Since the
commission is being sued in the District Court of South Jakarta
it is worth being quoted completely here: "The Ombudsman
and persons acting under the Ombudsman's direction or au
thority are immune from civil and criminal proceedings for
any act performed in good faith under this act. Ombudsman
reports and proceeding are privileged" (See Chapter Eight.)

However, there are some more Gottehrer-principles which are not


accommodated yet under the Bill Draft, viz.:
The numeration or salary received by the Ombudsman may
not be diminished and it should be equal to that received by
the highest government officials such as justices and cabinet
ministers. This is G-principle 10.
It is mandatory for the Ombudsman and the staff to take an
oath or pledge before he assumes his office or they assume
their positions, or G-principle 11 and G-principle 15 respec-
tively.
The authority to delegate his power and responsibility to a
staff, or G-principle 16.
There will be no cost or charge for anyone who lodges the
grievance or report. This is G-principle 27.
It is an offence to interfere with works of the Ombudsman, or
G-principle 50.
Anyone who complaints or reports should be protected from
retaliation, or G-principle 53.
The G-principle 59, or the last principle, dealing with the
guarantee that the Office of Ombudsman shall have sufficient
budget and funds.
The Commission will try to insert those provisions jnto the final
dca" "dO' review, before the Ministry of Justice and Human
Rights send it as a Bill to the Parliament.

Closing remarks

23
The Indonesian National Ombudsman Commission (2000-2007)

The mandate of drafting the Bill on the National Ombudsman has


been fulfilled. The final draft reflects the contemplation to establish a
Parliamentary Ombudsman. The Chief Ombudsman will be elected by
Parliament to guarantee its accountability and its independence. Since
then on the National Ombudsman start to send the report incidentally
and annually to the Parliament and yet no one or no institution, even
the Indonesian Legislature, may intervene its performance.
Moreover, the future National Ombudsman will continue to supervise
and monitor judiciary without tampering the principle of independent judi-
ciary. Hopefully, there will be no more judges to take refuge in the haven
of that fundamental principle when they were accused of manipulating
their judgments or rulings.
In other words, the National Ombudsman of Indonesia will not just
simply a monitoring institution, but a kind of institution vested with the
investigation power and subpoena power like ihose exist in Australia,
Austria, Denmark, Finland, Ireland, the Netherlands, Norway, the Philip-
pines, Spain, Sweden, Thailand, the United Kingdom and New Zealand.
Also it is not impossible that the National Ombudsman of Indonesia will
also be a kind of institution having the mandate to do mediation between
the complainants and the authorities like the ones exist in France and in
some francophone countries of Africa known as Mediateur.
To sum up, a more effective, independent, and impartial National
Ombudsman will be established by act in Indonesia like its counterparts in
many countries of the world.

NOTES

1 Cf. Emite Francis Short, "The Development and Future of the Ombudsman
Concept in Africa". Paper submitted to the 7 th International Ombudsrnan
institute Conference, Durban, South Africa: 30 October-2 November 2000.
2 For the words of law, see Articles 3 and 4 of Presidential Decree Number 44
Year 2000.
} Antonius Sujata, "The Effectiveness of the National Ombudsman Commission"
in Reformosi Do(am Penegakon Hukum (Jakarta: Penerbit Jambatan, 2000),
p.299300.
, See Annual Report of the National Ombudsman Commission (21 March-31
December 2000.)
5 See RM surachman, "Draft of the Bill Regarding The National Ombudsman of
Indonesia;" paper submitted to the Ombudsman Seminar organized by the
University of Airlangga (surabaya, September 2000) and RM surachman,
"Naskah Rancangan Undang-Undang Tentang Ombudsman Nasionallndonesia;"
bi-lingual paper submitted to the Ombudsman Seminar organized by the Uni-
versity of Lambung Mangkurat (Banjarmasin, October 2000.)
b Mr. Dean M. Gottehrer is former regional director of the Anchorage Office of
the State of Alaska Ombudsman, past president of the United States Ombuds
man Association and former chairman of the Ombudsman Leadership Forum

24
The Indonesian National Ombudsman Commission (2000-2007)

in the United States.


7 Majelis Permusyawaratan Rakyat (MPR), or the People's Consultative Body is
the Supreme Legislative Body in Indonesia. It has the power to amend the
Constitution and to "impeach" the President of the Republic among others.
MPR convenes at least once in five year. About two third of its members are
concurrently members of the Parliament (DPR) having the power to legislate
and amend acts, to promulgate (to endorse) the proposal of the national
budget, and to oversee the Executive Branch of Government.
See Gottehrer, "Ombudsman Legislative Resource Document" (Edmonton,
Canada: The International Ombudsman Institute, 1998.)
However, every "basic laws" in Indonesia function more as the policy decla-
ration than as statutory schemes; see Eddy Damian and Robert N. Hornick,
Indonesia's Formal Legal System, An Introduction (8andung: Alumni, 1976),
p.ll.
10 See supra n.5.

25
The fndonesian National Ombudsman Commission (2000.2007)

26
The Indonesian National Ombudsman Commission (20002007)

The Complaint Handling Procedure of the


National Ombudsman Commission
Patnuaji A. Indrarto, 55.'

Introduction

It is generally been known that the Ombudsman institution's main


business is managing the complaints from the public, and after its thor-
ough investigation, follow it up to the agencies being complained of.
Because one of the parameters for the effectiveness of the Ombudsman
performances is being valued by the actions taken to manage the com-
plainant's expectations vis-a-vis with the responses from the agencies
being complained of.
After more than seven years of experience dealing with public's
complaints, we realized that the standard for complaint handling proce-
dure is most important to make improvement for Ombudsman's per-
formance in term of giving the public services. This Standard Opera-
tional Procedures, in general, should consider the aspects of user-
friendliness, timeframe, accuracy of actions being taken, human re-
source's capacity, amount of complaints being received in a specific
period of time (such as annually, etc.), and also the administrative cul-
ture (i.e. in Indonesia, for some cases, written documents is more valu-
able and legitimate rather than informal documents).
In the early years of the establishment of the National Ombudsman
Commission (NOC), some people criticized the NOC saying that the NOC
was merely a correspondence institution. That occurred because in the
past NOC only had a simple complaint handling procedure. We sent
clarification letters or even recommendation letters by mail and replied
the response letters from agencies being complained of several times
until the response met with the complainant's expectations. But mostly,
in the past these could take a long time, even years, since the letters
had been sent by mail. In some cases, the agencies did not give all the
information we needed. For some reasons, the informal inquiries could
not be implemented since mostly the agencies do not have a public
complaint division, which can be contact persons to meet the NOC's
inquiries.
Therefore we realized that the old complaint handling procedure
should be revised. Considering the public, which gave the trust to NOC

.. Assistant Ombudsman, Information and Communication Section, Indonesian


National Ombudsman Commission.

27
The Indonesian National Ombudsman Commission (2000-2007)

to deliver their complaints to the agencies, we thought that they


needed more assurance when they could get the best results from their
complaints. On the other side, if the NOC did not have the standard
timeframe to handle the complaints, it would have lots of backlogs, and
surely it would be difficult to monitor whether the complaints within
few years ago should still be handled, or not.
That is why since a few years ago, the NOC started to design a new
Standard Operational Procedure for public complaint handling. After
considering all the aspects mentioned above, we tried to find a suitable
complaint handling procedure for current conditions. Then, after having
discussed all elements in the NOC, the Standard Operational Procedure
had been tried out since September 2006 until December 2006. The new
complaint handling procedure has officially been implemented since
early January 2007, and is still being monitored and evaluated periodi-
cally.

The improvements of complaint handling procedure

There are few differences between the new complaint handling pro-
cedure and the old one. First, we tried to determine the timeframe to
follow up complaints. In the past we did not have standard time to fin-
ish every step in our complaint handling workflow. But now we have a
picture for how long the complaints can be stated as finished_ A com-
mon complaint should be finished in around 20 days. For a special com-
plaint the expectation is around 60 days, depending on the difficulty
levels. Those timeframes can be flexible and also depends on whether
NOC needs to spend time to do more investigation or not_ The benefits
of the timeframe implementation are that we can measure our perform-
ance to the public and also give the assurance to complainants when
they can expect any result from their complaints.
Second, we decided to split the Assistant Ombudsmen (Investigators)
into two divisions, namely the Clarification and Recommendation divi-
sion, and the Monitoring division. The reason behind this decision was
because in the past Assistant Ombudsmen were supposed to do lots of
things (i.e. from preliminary investigation until monitoring the progress
of the complaints). With these two divisions, we expect that the Assis-
tant's works can be more focused and the quality of their work can be
improved as well.
Next, we found that the numbering system for complaint registra-
tion and letters also needed revision. This new numbering system has
accommodated the new elements, which we needed, such as the year
of complaint being received, also Deputy Ombudsmen's code and the
Assistant Ombudsman's code who handle the complaints.

28
The Indonesian National Ombudsman Commission (2000-2007)

To support this new complaint handling procedure, we already tried


to develop a very simple database application, which accommodate all
the main things needed to run the procedure.

Conclusion

At present, this procedure still needs to be evaluated. The success


of this procedure depends on many factors. At least in internal evalua-
tion we found that the human resource capacity, the quality of the out-
puts including the recommendations, and also the supporting tools are
very important and need to be improved. The agencies' willingness to
respond to NOC's clarifications and to follow up our recommendation
letters, is also important.
Above all, we realized that there is not one fixed procedure for pub-
lic complaint handling which can be implemented for a very long time.
On the contrary, time and again this complaint handling proceduie will
have to be revised, time and again, at least every year. Because as we
experienced, the complaint handling procedure is influenced by many
factors, both internal and external. It surely is a dynamic process.

29
w
o

NOC's Complaint Handling Workflow

Administration Clarification Recommendation


3 days

Jdays zltays

I Complainant Registration t+ Admlnistratlve


Sele<:tlon

Archives
H
I
Substance
Selection

! 2 days
I
I
I
Members
meeting I
4 days
3 days I Membersl I
2 days Not our I Assistants I
jurisdiction
I ", 5 days I

7 days

I

.
Clarification

Document
I
I Mediationl
Conciliation -
s ucceed

Investigation
I

- - - - - - - I- - - - - - - - - _.
failed

2 days
I
- - - - - - - - --
7 days
I 7 days

Monitoring

I Agencies Chief I Recommendation I


A I
3 days

5 days
NOC's Monitoring Workflow
Persuasive
Approach
Upper
Level
No
No

2x months
Any re- Any re 4
Any reo No Report to
Recommendation Agencies sponses? sponses? sponses? President and!
or Parliament
2 days lxl
Yes
month Yes

Yes 10
days

Yes
Final Recommen- Agree?
Chief Complainant
dation*

Final Recommendation is the constraint


from the First Recommendation
The Indonesian National Ombudsman Commission (2000-2007)

32
The Indonesian National Ombudsman Commission (2000-2007)

The Indonesian National Ombudsman Commission


as Protector of Citizen's Rights and Human Rights
in General
Prof. DR. C.F.G. Sunaryati Hartono, SH'

Seven years of the NOC's Existence

On the 20'h of March 2000 the President installed the Chief Ombuds
man, Mr. Antonius Sujata, SH, MH (a retired Deputy Attorney General),
the Deputy Ombudsman, Prof. DR. CFG. Sunaryati Hartono, SH
(Professor of Law, retired former Head of the Law Development Agency
of the Department of Justice) and 4 (four) Commissioners, Le. Mr. RM.
Surachman, APU (Senior researcher and high official of the Attorney
General's Office), Drs. Teten Masduki (Prominent Member of the'lndo-
nesian Corruption Watch, NGO), Mr. Masdar Farid Mas'udi, MA
(chairman of the Nahdathul Ulama, socio-religious organization) and
Mrs. Ir. Sri Urip (retired Unilever CEO at Jakarta). In 2001 Mrs. Sri Urip
retired, and Mrs. Erna Sofwan Sjukrie, SH (retired Chief Justice of the
High Court in Bali) replaced Mrs. Sri Urip.
Hence up to the present the INOC already exists for 7 (seven) years,
into its 8'h years, which we call one "windu".
Indeed, the draft for the Ombudsman Bill was ready for debate in
2001, but due to political events the bill, which came to be introduced
by Parliament, started to be discussed 6 (six) years later, Le. on Febru-
ary 2007, so that the debates are now still going on.
Therefore, although much to our disappointment we are not yet
able to present our new Ombudsman Act at this 10'h Conference of the
Asian Ombudsman Institution, there is reason to believe that this year
(2007) the Indonesian Ombudsman will become more akin to a Parlia-
mentary Ombudsman, enforcing many of its features as an Executive
Ombudsman, and having wider responsibilities throughout the country.
Although we had to wait for more than seven years for a statutory
basis, nevertheless the waiting time provided us with the opportunity
and unique experience to improve our operating procedure, our mindset
and professional expertise as an Ombudsman, compared to our previous
experience in the judiciary, the bureaucracy, university, business or
Attorney General's Office .

.. Deputy/Vice Chairman Indonesian National Ombudsman Commission, Profes-


sor of Legal Development Economic Law and Comparative Law "Parahyangan"
Catholic University, retired Head, Law Development Agency, Department of
Justice, Jakarta

33
The Indonesian National Ombudsman Commission (2000-2007)

This learning-by-doing process combined with the "hands on" train-


ing experiences we obtained in other Ombudsman Offices in many coun-
tries allover the world like Sweden, the Netherlands, New Zealand,
Australia, Thailand, Denmark, etc., and the international communica-
tions and exchange of minds with other prominent Ombudsmen during
international conferences, such as this Asian Ombudsman Conference,
indeed offered us plenty of opportunities to improve ourselves, and to
see how different the profession of an Ombudsman is, compared to the
more familiar professions in the search for justice and/or law enforce-
ment, like the profession of practicing lawyers, the police, attorneys
and the like.
Indeed, we have discovered, that whilst the mind and heart of an
Ombudsman should be much alike to those of a judge when investigat-
ing the complaints in order to be objective, calmly balancing the inter-
ests of both/all parties, diligent, etc, nevertheless when facing govern-
ment officials, police officers or judges, the Ombudsman in his/her rec-
ommendations tends to become the lawyer in defense of the citi-
zen's/complainant's interest, thereby however always considering the
law and the interest and reqUirements for good governance.
Therefore we can see that at the end of the 20 th century, a very
new important profession and institution was born for the good and just
governance of the state in the 21" Century, with its new world culture
and many new demands, asking for new solutions and ways of thinking
and doing things.

The tNOC and the Third Millenium Goals

The INOC for instance, also sees its role in the context of the Third
Millennium Goals with its accent of achieving justice and prosperity for
the weak and the poor. In this light the task of the state organs does
not merely consist of implementing the law as such (legalistically), and
protecting the rights of the individual as it was understood in the 19 th
century, but the formulation and interpretation should be done and ex-
ercised in such a way, that the poor should not get poorer and the weak
shall not get weaker, because of the strict implementation of the law,
which often is made by and in favor of the rich and strong.
Because, somehow we all know that even in democratic states the
law is always made through a political process, whereby the strong par-
ties (which usually are also the wealthiest political parties) are best
represented in Parliament.
It therefore often depends upon the judge or government official to
interpret the law in such a way, in order that the law indeed will result
in a just, equally balanced and fair society, giving equal opportunity to
the rich and the poor as well to improve their standard of living.

34
The Indonesian National Ombudsman Commission (2000-2007)

Here now I see the role and function of the Ombudsman, compared
to that of our police, prosecutors and even judges, who are apt to auto-
matically or verbally apply the law, without one moment considering,
whether the literal application of the letter of the law will actually re-
sult in more suffering for the weak and poor, or not. Whereas the Om-
budsman always has to consider whether the application of the law in
governmental decisions was appropriate just, balances and fair, or not.
Perhaps we therefore can say, that part of the Ombudsman's task is
to become the conscience' of those in power to create as well as to ap-
ply the law in such a way that the law does not become a tool for peo-
ple's oppression, but really becomes an instrument towards a just and
prosperous society.

The Ombudsman and systemic bureaucratic reform towards good


governance

Since 2003 the NOC felt the need to recruit more ombudsmen and
their assistants for its regional offices in the 33 provinces and local om-
budsman offices in the municipalities (including cities) allover the
country. The need for regional and local ombudsman offices was voiced
by the public and by the government itself, namely by the Office of the
Coordinating Minister in Charge of Bureaucratic Reform (Kantor Menteri
Pemberdayaan dan Pendayagunaan Aparat Pemerintah).
This is due to:
1. The size of the Republic of Indonesia (1.922.570 km') which
consists of 17.000 islands and has a population of around
230 million; and
2. The recognition that the bureaucratic system and the attitude
of the civil servants are badly in need for improvement and
reform;
3. Which is why a new bill on Public Administration, which is
meant to become the basis for such bureaucratic reform,
mentions the Ombudsman as the overseer of the bureaucracy
in the performance of its duties, more specifically related to
their activities in providing public services to the citizen.
These duties, the bill says, should be executed in accordance with
the principles of good governance, as developed through case law (Le.
equality, non discrimination, diligence, speedily, impartiality, transpar-
ency, etc) and the universally recognized principles of good governance,
which is why the NOC has developed these principles as its benchmark

1 See Sunaryati Hartono, The Indonesian National Ombudsman Commission as


the "Conscience of the People", lecture presented at University of Victoria in
Wellington, New Zealand, NOC Annual Report 2000, page 129133.

35
The Indonesian National Ombudsman Commission (2000-2007)

or standards to determine, whether a certain act, discretion, decision


or non-act (neglect) of a government official (complained of by a com-
plainant) is found improper, an act of maladministration or even illegal,
or not, even though the Public Administration bill has not yet been en-
acted.
By this participation and preparation, both in drafting the Public
Administration Bill and determining its standard of appropriateness and
good governance, the NOC feels it has and is performing its task of im-
proving and creating a conducive socio-legal environment for good gov-
ernance, and more specifically for bureaucratic reform and the eradica-
tion (and if possible prevention) of corruptive practices, by improving
the quality of the services to the pub\ic by government officials.
By these activities, next to the usual daily complaint handling by
the Ombudsman, the NOC endeavors to protect the fundamental social
rights of our citizen in their efforts for a decent and better standard of
living.

Relation between the Commission of Human Rights and the National


Ombudsman Commission

In a number of countries the National Ombudsman Commission also


covers the task of protecting the human rights of their citizen as SUCh.
This is not the case in Indonesia. In Indonesia the National Commis-
sion of Human Right (NCHR) already existed in 1993 (I.e. during the gov-
ernment of the New Order), before the National Ombudsman Commis-
sion was established.
But as it appeared in the beginning of the 21 st century, the NCHR
focused its activities on human rights cases which concerned a great
number of people, like the human rights offenses during the New Order,
such as the disappearance of political and social activists, the Trisakti
case whereby during the anti-Soeharto rallies a number of students of
the Trisakti University were killed, presumably by soldiers of the Army,
killings in Papua, Maluku, and East Timor (Timor Leste) and the like.
Therefore it was felt that another institution for the protection of
individual citizens in the execution of their daily activities and needs,
for which the services of the bureaucracy are essential (\ike the issu-
ance of birth documents, certificates of land ownership, building per-
mits, estab\ishment of companies, the need for clean water and elec-
tricity, telecommunication services, and hundreds of other public ser-
vices.
Now since decades Indonesians were complaining about the willing-
ness and readiness of civil servants to perform their tasks, if no extra
payments are made.
That is why former President Abdurrahman Wahid found it necessary

36
Ind,'ne,'ian National Ombudsman Commission (20002007)

lbuldsman Commission in order that not only


politically colored Human Rights violations should be dealt with, but
also individual "day-to-day" violations, especially experienced by the
poor and the weak (women, children, the sick and the old) shall also be
protected and assisted in their effort for a decent and better life.
Now, in the course of its activities and on the basis of numerous
research and comparative studies, we found out that unless the nation's
bureaucratic system and its personnel as well as the judicial system as a
whole be completely reformed and transformed, no effort or movement
whatsoever will be able to improve the public services nor the decrease
of corruptive practices. 2
That is why since 2003 the NOC embarked on its task of creating a
better socio-legal environment, which will induce the improvement of
the public services provided by the government, as well as the judici-
ary, thereby protecting the individual citizen against mal-administrative
and corruptive practices; not only committed by the bureaucracy, but
also by officials andlor judges in the judiciary.

The role of the INOC in protecting citizen's rights

The INOC has used many channels and instruments in protecting the
rights of the citizen:
A. By simple complaint handling, i.e.:
1. by properly investigating the complaints of the citizen free of
charge whether indeed a misconduct or abuse of power or
mal-administrative act leading to corruptive practices of gov-
ernment officials has occurred;
2. when appropriate, by requesting the complained of govern-
ment official to answer or clarify their decisions, acts or con-
duct, which are complained of by the complainant;
3. by sending recommendations to the superior of the complained
of officials, sometimes up to the Minister in charge or even to
the President.
B. By increasing the awareness of the ordinary citizen of their rights,
especially those concerning public services through:
1. pamphlets, bulletins, journals, annual reports, radio and TV
dialogues, and active participation in seminars, workshops,
and the like;
2. participating in seminars and discussions held by universities,

2 See Komisi Ombudsman Nasional; (NOC): "Peranan Ombudsman dalam Pem-


berantasan dan Pence~Qhan Korupsi serta Pelaksanoan Pemerintahan yang Baik"
(The Role of the Ombudsman in Eradicating and Preventing Corruption and Good
Governance), Jakarta, 2005

37
The Indonesian National Ombudsman Commission (2000-2007)

non governmental organizations, governmental auxiliary agen-


cies (like the Human Rights Commission, the Anti Corruption
Commission, The Commission for the Protection of Women and
Children, the National Law Commission, etc) or governmental
departments (especially the National Law Development Agency
of the Department of Law and Human Rights or the National
Planning Board (Bappenas), the Labor Department, etc.).
C. Presentation of lectures to political parties represented in Parlia-
ment on various topics and forwarding (and discussing) serious
complaints about governmental abuse of power or neglect of
their duties to serve the public properly, to Parliament.
D. Participating in the drafting and discussions of legislation, both
on a national level, as well as on the local government level,
such as the Public Service Bill, the Public Administration Bill, the
Investment Bill, a.o.
E. Mediate between governmental agencies and individuals, whose
rights have been neglected or injured.
F. Just improving or obtaining the trust and confidence of the com-
mon people to their government by giving the complainants
plenty (unlimited) time to voice their complaints and grudges (to
get their steam off) and talk to them in an understanding, but
objective way, in order for them to also see the other side of the
problem, much like a psychiatrist to his patients.
Strangely enough, after such a session, many of the complainants
have voiced to our Assistant Ombudsmen, that they were very
satisfied and felt safe in the protection of the Ombudsman, so
that the Ombudsman has difficulty in sending them home.
G. Next to all these activities the NOC 3 (three) times a year con-
ducts training sessions in the regions at various places for univer-
sity students and graduates, or other legal and administrative
personnel or NGOs, interested in the activities and lor objectives
of the Ombudsman, both to increase the awareness for this (for
Indonesia) new institution, as well as to enable us to recruit new
Assistant Ombudsman or Ombudsman for our regional offices.
During these training courses, we are having local "clinics",
whereby local people are invited to voice their complaints di-
rectly and face to face to the officials of the National Ombuds-
man Commission.
This method was found necessary, especially for the local/poor
people who cannot read and write, to voice their complaints di-
rectly to the Ombudsman in person, instead of having to employ
a lawyer or relative, who very likely would have somewhat
changed the complainant's story and feelings which would affect
the findings of the Ombudsman.

38
The Indonesian National Ombudsman Commission (20002007)

Hence in the endeavor to protect the rights of the citizen the INOC
follows a short term as well as a long term path.
The short term path consists of complaint handling (consisting of
investigations, clarifications, recommendations and mediation, as well
as communications and hearings with the Third (Legal) Committee of
Parliament.
The long term or systemic path consists of the INOe's participation
in:
(a) Research projects on important topics of concern to the objec-
tives of the Ombudsman;
(b) Planning activities, both in legal matters, and public administra-
tive or organizational matters;
(c) Legislative activities;
(d) Training activities;
(e) Communication activities through the mass media; and {
(f) Coordination and networking with all segments of the state and
of society at large.

Conclusion

Finally, after having been active for more than 7 (seven) years in
the Indonesian National Ombudsman Commission, I became more and
more convinced that the Ombudsman, especially in this 21" century,
has a unique role to play, which is not and cannot be entrusted to any
of the usual law enforcement agencies, NGOs or internal governmental
oversight agencies, nor to the Human Rights Commission or the Anti
Corruption Commission.
Each of the above institutions (albeit all with the objective to im-
prove application of the law and justice towards prosperity) each of
them have already established and specific ways of doing things, based
on their respective frame of minds, expertise, and established proce-
dures.
Now in this New Age and New Globalize World, when economically
speaking the World has become flat', and whatever is happening in one
corner of the world is almost instantly known and influencing life in all
other corners of the world, the need for a new institution for the sake
of good governance and justice beyond the strict application of the law,
proved to be imperative, lest the law becomes not an instrument to-
wards justice, but a weapon, which justifies death, oppression and in-
justice.
3 See Thomas L. Friedman, The World is Flat, Farrar, Strauss and Girouse, New
York, 2005

39
The Indonesian National Ombudsman Commission (20002007)

Indeed, the institution as well as the philosophy and mindset of the


Ombudsman is here to stay and is firmly on the way to become the
Fourth Pillar of a democratic state next to the Legislator, the Executive
and the Judiciary. 4

4 See Dr. G.F. Addink, The Fourth Power: on the foundations of Ombudsman
law from a comparative perspective, Conference Paper on Comparisson be-
tween the Dutch and Indonesian Ombudsman, KNAW Seminar "Non judicial En-
forcement of Human Rights and Good Governance: the Ombudsman and Human
Rights Commission in Comparative Perspective, Utrecht, April 2006.

40

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