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Petitioners from Legal Consultation and Legal Aid Institute (LKBH) of the Sahid Jakarta University explaining the principal points of the petition in the preliminary hearing of the judicial review of the Law on Advocates on Wednesday (11/7) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The preliminary hearing of the judicial review of Law No. 18/2003 on Advocates was held by the Constitutional Court (MK) on Wednesday (11/7) afternoon. The petition registered under case No. 56/PUU-XVI/2018 was filed by Wahyu Nugroho, Deri Hafizh, and Rudi Heryandi Nasution who were incorporated in the Legal Consultation and Legal Aid Institute (LKBH) of the Sahid University Jakarta. 

In their petition, the Petitioners argued that their constitutional rights were violated by the enactment of Article 16 of the Advocate Law. The three of them work as advocates and legal consultants. They explained in their petition that the provision of the a quo article have been reviewed by the Constitutional Court in Decision No. 26/PUU-XI/2013. The Court granted the petition, so the a quo provision changed with the addition of the phrase "outside", which reads, "Advocates may not be prosecuted civilly or criminally if they perform their profession with good faith for the interest of defending a client in and outside the trial." 

The Petitioners considered the addition of the word "outside" resulting in the expansion of the meaning of advocate\\\'s immunity right. On the one hand, advocates are protected both in court and out of court. However, on the other hand, the a quo article also has legal uncertainty, where the legal protection of an advocate could be threatened if they did not receive a "good faith" rating by the Honorary Council of Advocate Organization. This puts the integrity and moral responsibility of the Petitioners at stake if the phrase "good faith" is not assessed with objective parameters by the Honorary Council of Advocate Organization. 

According to the Petitioners, if the phrase "good faith" is not assessed, examined, and decided in advance by the Honorary Council of Advocate Organization, it will be biased, subjective, and cause lack of legal certainty and legal protection for the advocate being sued. It greatly harms the advocate profession and undermines the dignity of advocates. 

"If the Honorary Council of Advocate Organization assesses that the advocate in question has no good faith, then the filing of lawsuit may be continued by their client to the court and/or they may be reported to the police in order to be questioned on the alleged offense. Whereas if the process of the Honorary Council of Advocate Organization is not pursued, it clearly tarnishes and injures the advocate profession that is officium nobile, thus automatically degrading the honor and dignity of the advocate as a respectable profession," Deri Hafidzh explained. 

With the existence of the Honorary Council of Advocate Organization, the speech or conduct of advocates directly related to professional ethics can be maintained. Furthermore, the Petitioners explained that the examination through the Honorary Council of Advocate Organization is a mechanism in order to maintain the assurance and protection of law for advocates in carrying out their duties assisting clients. 

Therefore, the Petitioners requested that the Panel of Justices declare the a quo provision contradictory to Article 24D paragraph (1) as well as Article 28G paragraphs (1) and (2) of the 1945 Constitution as long as the requirement of "good faith" is not interpreted as advocates being able to be prosecuted civilly or criminally while carrying out their duties after assessment by the Honorary Council of Advocate Organization. 

Article Revised 

With respect to the arguments presented by the Petitioners, Constitutional Justice Saldi Isra requested that the Petitioners state the latest articles that have been amended after the Constitutional Court\\\'s decision. "If you still use the text within the article that has not been based on the Constitutional Court decision, it could be problematic. So, Article 16 that you are challenging already has a new meaning in the Constitutional Court decision. If you challenge it now, and file a petition assuming the article sounds exactly the same, it equals to asking us to annul the previous decision we made," he said. 

Meanwhile, Constitutional Justice Suhartoyo highlighted the legal standing of the Petitioners. He requested that the Petitioners describe the legal standing and elaborate on the Legal Consultation and Legal Aid Institute (LKBH) of the Sahid University. "I was interested in what you said earlier that you actually represent the institution. [You] must also explain what kind of institution your institution is. Is it [a legal entity or not]?" suggested Justice Suhartoyo. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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