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Constitutional Judge Patrialis Akbar was giving advices to the Applicants and their attorney at judicial review initial session on Act of Advocates on Wednesday March 18 at Panel Session Room, the Constitutional Court Building. Photo PR/Ganie

 

 

Act No. 18 Year 2013 of Advocates was again reviewed to the Constitutional Court (Mahkamah Konstitusi –MK) on Wednesday afternoon March 18. The case registered on Case no. 32/PUU-XIII/2015 was filed by Ikhwan Fahrojih et al, several advocates who felt aggrieved by the provisions of Article 28 (1) and (2) Act of Advocates (Undang-Undang Advokat –UU Advokat).

The Applicant said that recently there are two advocate organizations who claimed to be the only advocate organization that based on Act of Advocates; which are Indonesian Advocates Association (PERADI) and the Congress of Indonesian Advocates (KAI). Although, Act a quo is only mandates the establishment of the only one organization for each advocates in Indonesia.

“The division between the two organizations is due to dissatisfaction of some advocates towards PERADI board election process that conducted without an open and democratic process, by giving equal voting rights for each member of the advocates in choosing PERADI board, "said Ikhwan Fahrojih.

According to the Applicant, board election process in fact can be understood if the election in the early period (2005-2010) was carried out via appointment by eight advocate organizations that existed before, which were the Indonesian Advocates Union (IKADIN), the Indonesian Advocates Association (AAI), the Association of Indonesian Lawyers (IPHI), the Indonesian Advocates and Lawyers Association (HAPI), Indonesian Lawyers Union (SPI), the Association of Indonesian Legal Consultants (AKHI), and the the Capital Market Legal Counsel Association (HKHPM).

"Therefore, the deadline given by the Act of Advocates in establishing advocate organization is very short which two years after the enactment of Act a quo, Constitutional Court\'s decision also has confirmed the existence of PERADI as the only advocate organization. But it should not happen to PERADI board election process for the next period, which has provided a lot of time for preparing the electoral process which is ‘one man one vote’, "said Ikhwan.

"So far we as PERADI members are not given the right to elect the Chairman of PERADI. Therefore we feel our rights as PERADI members had ignored by PERADI. Particularly related with PERADI interpretation on the provisions of Article 28 (1) and (2) UU Advokat, "added the Ikhwan.

Article 28 (1) Act of Advocates noted, "The advocate organization is the only advocate profession forum which is free and independent, established in accordance with the provisions of this Act with intention and purpose to improve the quality of advocate profession."

(Pasal 28 ayat (1) UU Advokat: “Organisasi advokat merupakan satu-satunya wadah profesi advokat yang bebas dan mandiri yang dibentuk sesuai dengan ketentuan undang-undang ini dengan maksud dan tujuan untuk meningkatkan kualitas profesi advokat.”)

Article 28 (2) Act of Advocates, "Provisions regarding the advocate organizational structure determined by the advocates on the rules of association."

(Pasal 28 ayat (2) UU Advokat menyebutkan, “Ketentuan mengenai susunan organisasi advokat ditetapkan oleh para advokat dalam anggaran dasar dan anggaran rumah tangga.” )

Towards the arguments presented by the Applicant, Constitutional Judge Aswanto immediately responded, "When we read your petition from beginning, especially in the posita, we still difficult to capture where the issue of the Applicant’s constitutionality. Because the Court authority is to review whether there was norms in the acts that contrary to the Constitution. Well, what the Applicant filed is not illustrated yet. Please describe comprehensively where the Applicant’s constitutionality loss are, "explained Aswanto as chairperson of this session

Meanwhile, Constitutional Judge Suhartoyo said, what occured in the petition is a matter of implementation. In their petition, the Applicant did not mention the main reason that contradicted with the Constitution. While other Constitutional Judge Patrialis Akbar assessed, the Applicant questioned PERADI interpretation towards Act of Advocates. According to Patrialias, the issue of PERADI interpretation is less appropriate when issued to the MK.

"Unless you question Article 28 (1) and (2) Act of Advocates are contrary to the 1945 Constitution. Well then we will check and re-check, "said Patrialis. (Nano Tresna Arfana/Prasetyo Adi N.)

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