Director of Legislation Litigation of the Law and Human Rights Ministry Ninik Hariwanti delivering Government statement in the judicial review of the Advocate Law, Thursday (18/10) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The provision on the prohibition of prosecuting lawyers as stated in Article 16 of Law Number 18 of 2003 on Advocates were formulated to protect the advocate profession. If the a quo provision is not included, it could potentially lead to contempt of court outside the court. This was stated by the Director of Legislation Litigation of the Law and Human Rights Ministry Ninik Hariwanti representing the Government in the judicial review of the Advocate Law registered as cases No. 52 and 56/PUU-XVI/2018.

On the argument of the Petitioners that the provision did not provide a sense of security and protection from fear and demeaned the advocate profession, Ninik added that the Government considered it not legally grounded. The Government considered that the Petitioners as advocates could distinguish between actions that have good intentions and those that are not in good faith.

"So, in carrying out their duties, [advocates] have a good attitude and trust because they are the ones who are authorized by the law to uphold justice based on law. The implementation of the provision of Article 16, in addition to providing legal protection, protecting provisions, officium nobile, is also strengthened by the rights of advocates," Ninik explained before the Panel of Justices led by Chief Justice of the Constitutional Court Anwar Usman.

In addition, Ninik said that if the article being reviewed was granted, it would potentially damage the criminal law system because it is groundless by law. "Subpoena and request of information in connection with the allegation of a general crime has become the authority of the police or prosecutor given by the law based on the provision of criminal law," she said.

Ninik also explained about the Honorary Council of Advocate Organization (DKOA) questioned by the Petitioners. She said that DKOA was only given the authority to examine and adjudicate the advocate profession based on its code of ethics. Whereas, the code of ethics that is enforced can vary from one advocate organization to another.

"The characteristic differences have illustrated the differences in the level of regulation and the level of authority that cannot be equated between legal norms in general and the enforcement of regulations internally," she explained.

In the petition, the Petitioners emphasized the issue of authority entitled to assess good faith of advocates as set forth in Article 16 of the Advocate Law. According to the Petitioners, the Honorary Council of Advocate Organization (DKOA) is the only institution entitled to properly assess the advocate\'s good faith. That is, there is a procedure that must be taken, i.e. DKOA assessment before an approval is issued if the assessment proves that the advocate has done an action or deed that is not in good faith while carrying out their duties. The DKOA approval is a procedure to protect the advocate’s immunity right in carrying out their duty so as to be free from fear and anxiety from the subjective judgment of alleged violation of the law (civil or criminal) while performing their profession in defending their client\'s legal interests. This is, of course, also a form of guarantee and protection as well as effort in maintaining the dignity and honor of advocates. (Arif/LA/Yuniar Widiastuti)