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Hasanuddin University legal expert Aminuddin Ilmar and Gadjah Mada University constitutional law expert Zainal Arifin Mochtar for Peradi (Relevant Party) delivering their expertise in the judicial review of the Advocate Law, Wednesday (23/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

In dealing with the long-standing judicial review of No. 18/2003 on Advocates that had been petitioned numerous times, the Constitutional Court must use fresh logic to find a new legal perspective. This was conveyed by Gadjah Mada University constitutional law expert Zainal Arifin Mochtar as expert presented by the Indonesian Advocates Association Peradi (Relevant Party) in the follow-up hearing on Wednesday (23/1/2019) in the Plenary Courtroom of the Constitutional Court.

On the case No. 35/PUU-XVI/2018, Zainal elaborated that the lack of resolution to this case would be detrimental, not only to the Petitioners but also to the people who were served by advocates, who did not have as single organization. As a result, if an advocate commits an ethical violation, the ethical enforcement would be difficult and unclear. The lack of resolution, he added, was related to incompliance to the Advocate Law, which had been decided by the Constitutional Court with the concept and statement on a single advocate organization in the ratio decidendi, and not in the verdict. This, he believed, was what led to multiple interpretation of the law; the decision on the Advocate Law was not implemented and the considerations of the Court were not heeded.

“Therefore, it is advisable that the Constitutional Court [resolve] this long-standing case by not only mentioning in the considerations part, but also in the verdict, so that there won’t be incompliance to the Court’s decision,” Zainal responded to the petition filed by advocates Bahrul Ilmi Yakup, Shalil Mangara Sitompul, Gunadi Handoko, Rynaldo P. Batubara, Ismail Nganggon, and advocate candidate Iwan Kurniawan.

Must Be Resolved 

Peradi also presented Aminuddin Ilmar, a legal expert from University Hasanuddin, who gave his opinion that the phrase "advocate organization" in the Advocate Law was a constitutionality issue because of the general and abstract nature of the norm. As a result, it led to various views and opinions, and brought about numerous advocate organizations, which is not in line with the provision of the Advocate Law. "So, the Constitutional Court has the authority to review the a quo norm," Aminuddin said. 

Even though the Court is of the opinion that the phrase "advocate organization" in the Advocate Law is a concrete norm so that it is related to norm implementation, which is not the authority of the Court, Aminuddin believed that the legal implications that had arisen in the implementation of the law should be resolved by the Government and Parliament. However, but until today no changes have been made, so the Court can do so, so that the multiple interpretations can be resolved. 

Agreement by Advocate Organizations 

Witness for Peradi, Agustin Teras Narang, gave his witness statement as Chairperson of Commission III of the House for the 1999–2004 period, who was given the constitutional task of discussing the Advocate Profession Bill. In the long journey of the bill to being passed into law, the establishment of the Indonesian Advocates Association Peradi had been agreed upon through a declaration on December 21, 2004 to consist of eight organizations. “With the declaration, the provision of Article 32 paragraph (4) of the Advocate Law has been fulfilled. Peradi is an advocate organization in Indonesia,” Agustin explained.

The Petitioners had previously claimed that they did not have legal certainty of legal and constitutional advocate organizations to exercise the authority set forth in the Advocate Law. They argued that the norm of the phrase "advocate organizations" as set forth in the Advocate Law was currently multi-interpretive, which allowed certain parties such as the Congress of Indonesian Advocates (KAI) and the Association of Indonesian Advocates of the Republic of Indonesia (Peradri), or the Chief Justice of the Supreme Court of the Republic of Indonesia, to provide different interpretations or other interpretations that are unconstitutional because they do not conform to the original intent or teleological purpose of the formation of the norm of the phrase "advocate organizations" as regulated by the Advocate Law. This can be explained by the interpretation of KAI in relation to advocate organizations in that the one entitled to exercise the authority set forth in the Advocate Law is "the Congress of Indonesian Advocates." KAI in this case intends to gather the Indonesian advocates in a single organization as mandated by the Advocate Law ex Article 10 letter a of the Deed of Establishment of the Organization of Congress of Indonesian Advocates.

Before concluding the session, Chief Justice Anwar reminded all parties to submit a conclusion of the statements that they would like to present to the Court on Thursday, January 31, 2019 at 10.00 WIB at the latest to the Registrar’s Office of the Court. (Sri Pujianti/LA/Yuniar Widiastuti)

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