Escolar Documentos
Profissional Documentos
Cultura Documentos
Editor:
Prof. DR. C.F.G. Sunaryati Hartono, SH
Introduction
Introduction
2
The indonesian National Ombudsman Commission (2000-2007)
Introduction
3
The Indonesian National Ombudsman Commission (2000-2007)
4
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).
5
The Indonesian National Ombudsman Commission (2000-2007)
6
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.
7
The Indonesian National Ombudsman Commission (2000-2007)
International Recognition
8
The Indonesian National Ombudsman Commission (2000-2007)
9
The Indonesian National Ombudsman Commission (2000-2007)
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.
10
..
_~-----------------------~--
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.
11
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The Indonesian National Ombudsman Commission (2000-2007)
12
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The Indonesian National Ombudsman Commission (2000-2007)
Concluding Remarks
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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:
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
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The Indonesian National Ombudsman Commission (2000-2007)
16
The Indonesian National Ombudsman Commission (2000-2007)
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)
The Mandates
18
The Indonesian National Ombudsman Commission (20002007)
19
3 77
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.
21
The Indonesian National Ombudsman Commission (2000-2007)
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.)
Closing remarks
23
The Indonesian National Ombudsman Commission (2000-2007)
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)
25
The fndonesian National Ombudsman Commission (2000.2007)
26
The Indonesian National Ombudsman Commission (20002007)
Introduction
27
The Indonesian National Ombudsman Commission (2000-2007)
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)
Conclusion
29
w
o
Jdays zltays
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
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*
32
The Indonesian National Ombudsman Commission (2000-2007)
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 .
33
The Indonesian National Ombudsman Commission (2000-2007)
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.
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
35
The Indonesian National Ombudsman Commission (2000-2007)
36
Ind,'ne,'ian National Ombudsman Commission (20002007)
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,
37
The Indonesian National Ombudsman Commission (2000-2007)
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)
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