Panel judicial review hearing of Corruption Eradication Law (Anti-Corruption Law), Monday (5/2) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.
In response to the arrest of Frederich Yunadi, an advocate, by the Corruption Eradication Commission (KPK), a number of advocates filed a judicial review of Article 21 of Law No. 31/1999 on Corruption Eradication as amended by Law No. 20/2001 on Corruption Eradication (Anti-Corruption Law), Monday (5/2). The cases are No. 7/PUU-XVI/2018 filed by Khaeruddin and No. 8/PUU-XVI/2018 filed by Barisan Advokat Bersatu. The preliminary hearing in the Courtroom of the Constitutional Court was chaired by Constitutional Justice I Dewa Gede Palguna accompanied by Constitutional Justices Suhartoyo and Aswanto.
The Petitioners claim Article 21 of the Anti-Corruption Law used by the KPK to determine Frederich Yunadi as a suspect potentially harms his constitutional rights. Article 21 of the Anti-Corruption Law reads, "Any person intentionally preventing or obstructing, or directly or indirectly sabotaging investigations, prosecution and examinations of suspects or defendants or witnesses in corruption cases in a court of justice shall be liable to a prison term of not less that 3 (three) years and not exceeding 12 (twelve) years and/or a fine of Rp150,000,000 (one hundred and fifty million rupiah) and not exceeding Rp600,000,000 (six hundred million rupiah).”
In the petition No. 7/PUU-XVI/2018, Khaeruddin asserted that the Anti-Corruption Law has no standard and is multi-interpretative. This is because there is no clear, uniform meaning on the standards of an advocate in defending clients, especially in an ongoing investigation.
"In the absence of such clear standards, advocates in defense of their clients may at any time be deemed and suspected of acts of directly or indirectly preventing, impeding, or stopping so that the a quo article is a norm that has no legal certainty and at the same time is also contradict the 1945 Constitution," he explained.
The a quo article, Khaeruddin continued, restrict the advocate in upholding law and justice despite having a noble intention to uphold law and justice. "However, the noble intentions referred to are regarded as acts that hinder, obstruct, or even stop directly or indirectly the ongoing legal process," he explained.
Khaeruddin added that advocates have immunity rights that are also regulated in Article 11 of Law No. 16/2011 on Legal Aid. However, the existence of such right does not necessarily mean that lawyers are legally immune. If an advocate commits an offense, there is at least a legal process by the ethics board to determine if the advocate has committed an offense. In addition, Khaeruddin also considered the a quo article highly subjective when based on law enforcers’ dislike of certain advocates who defend clients as a lawyer. "The unclear provisions of the a quo article make if contrary to the principle of the state law," Khaeruddin stressed.
Hindering Advocate\'s Duties
Meanwhile, the Petitioners of case No. 8/PUU-XVI/2018 through Victor Santoso Tandiasa as attorney claim Article 21 of the Anti-Corruption Law and Article 221 paragraph (1) point 2 of the Criminal Code (KUHP) are contradictory to Article 1 paragraph 3), Article 29D paragraph (1) and (2), and Article 28G of the 1945 Constitution.
Article 221 paragraph (1) point 2 of the Criminal Code reads, "Any person who after a crime has been committed, with intent to conceal it or to prevent or to obstruct its investigation or prosecution, destroys, removes, hides objects upon which or with which the crime has been committed or other traces of the crime, or withdraws them from the examination either by the officers of the justice or police or by other persons who by virtue of statutory provision are continuously or temporarily assigned police duties.”
According to Victor, the a quo article is contradictory to the 1945 Constitution with conditions because Indonesia as a state law aims at realizing a safe, organized, and just life order. The free, independent, and responsible judiciary requires free, independent, and responsible advocates who need guarantee and protection by law for the sake of enforcement of the law supremacy. Victor said it has also been expressly conveyed in Article 5 paragraph (1) and Article 16 of the Advocate Law. However, the provisions of the a quo article may result in subjective interpretation by law enforcers to impede or obstruct, either directly or indirectly, an advocate in performing his duties of defending the client. "When in carrying out his professional duties an advocate is declared a suspect and detained by the police/public prosecutor, then the advocate can no longer perform his duties in defending his client," Victor explained.
According to Victor, the provisions of the norm of the a quo article can also be used on advocates who are performing their duties, but not on the police, prosecutors, or judges. "So with different treatment legal discrimination arising from the provisions of the norms of the a quo article is clearly contrary to Article 28I paragraph (2) of the 1945 Constitution," Victor explained.
Justices’ Advice
In response to the two cases, Constitutional Justice Palguna gave a note about the need for Petitioner of Case 7/PUU-XVI/2018 to strengthen the basis in the petitum, which requests that the a quo article be declared unconstitutional. "You relate the ethics process with the law; these are two separate things. Norms of ethics and law are different things. So, the basis for the argument of the unconstitutionally conditional petitum is not seen yet," Justice Palguna explained.
Meanwhile, to Petitioners of Case 8/PUU-XVI/2018, Justice Palguna asked for the argument that reinforces the Petitioners’ argument that seems contradictory in order to form a definite explanation. "Article 21 of the Anti-Corruption Law and Article 221 paragraph (1) point 2 of the Criminal Code are generally accepted provisions for all citizens without exception, including for advocates. But here there seems to be an expectation of special treatment for advocates and there is also the argument of discrimination. What is the explanation? Why is the argument asking for exception but also conveying discrimination?" he explained.
Constitutional Justice Aswanto requested that the Petitioner of Case 7 describe the existence of the ethics board and its duties so that the statement that the ethics board is not present is included in the petitum.
Furthermore, Constitutional Justice Suhartoyo appreciated the spirit of the Petitioners who filed the case on the Anti-Corruption Law and also requested that the Petitioners affirm the argument about the advocate\'s immunity rights intended in their petition. "Article 16 for advocates is limited to when defending clients in court. So, that immunity only applies in court, although the Legal Aid Law extended to both the court and outside the court. [Please develop and observe] the argument once more; the definition of good faith is what it is intended to be," he explained.
Before ending the hearing, Justice Palguna reminded that the Petitioners were given until Monday, February 19, 2018 at 13.00 WIB to revise the petition, to then be scheduled for the next hearing by the Court’s Registrar. (Sri Pujianti/LA/Yuniar Widiastuti)
Monday, February 05, 2018 | 18:50 WIB 91