Chief Justice Anwar Usman delivering a keynote speech at a national webinar organized by the Law Faculty of the Christian University of Indonesia virtually from the Constitutional Court, Thursday (22/7/2021). Photo by Humas MK/Panji Erawan.
Thursday, July 22, 2021 | 22:15 WIB
JAKARTA, Public Relations—The Chief Justice of the Constitutional Court (MK) Anwar Usman delivered a keynote speech at the national webinar on The Single-Bar System: The Organizational Solution for Indonesian Advocates (A Juridical-Academic Review) on Thursday afternoon, July 22, 2021. The event was organized by the Law Faculty of the Christian University of Indonesia (UKI) in collaboration with the East Jakarta branch executive board (DPC) of the Association of Indonesian Advocates (Peradi).
Justice Anwar said that the discourse on professional organizations for advocates, be it the single- or multi-bar system, has been around before and after the enactment of Law No. 18 of 2003 on Advocates.
“On one hand, some view that the Advocates Law adheres to the single-bar system, which was represented through the founding of Peradi in 2005. They believe in the historical and norm system aspects of the Advocate Law, which they believe must be seen as an integrated, simultaneous, and unending process. In short, the founding of Peradi was the implementation of the mandate of the Advocate Law,” he said.
However, he added, some others want advocates to be in the multi-bar system. “The question that this group commonly asks is that, if Peradi becomes the only advocate professional organization, which provision or article in the Advocate Law mentions Peradi explicitly? So, until today, there has been no single advocate organization. This group also believes Peradi is even more than one organization,” he said.
Solution Through Judicial Review
Justice Anwar added that solutions had been sought for these debates on advocate professional organization, including through judicial review in the Constitutional Court. In fact, until today, the Advocate Law has been reviewed 22 times. Some of the cases were related to the constitutionality of the phrase ‘advocate organization,’ as shown in Decisions No. 014/PUU-IV/2006, 101/PUU-VII/2009, 66/PUU-VIII/2010, 112/PUU-XII/2014, 36/PUU-XIII/2015, and 35/PUU-XVII/2018.
“Through this keynote speech, I would like to talk about several key points based on the matters that the Constitutional Court have decided with regard to the Advocate Law,” he said.
In the Court’s legal considerations in Decision No. 014/PUU-IV/2006, it stressed that Peradi is the acronym of the Association of Indonesian Advocates; it is the only professional advocate organization according to the Advocates Law.
Meanwhile, through Decision No. 66/PUU-VIII/2010, the Court declared that Peradi, as the single advocate organization according to the Advocates Law, has the authority as stipulated in the Advocates Law to carry out special education for the advocate profession, to assess prospective advocates, to appoint advocates, to create a code of ethics, to establish an honorary council, to establish a supervisory commission, to conduct supervision, and to dismiss advocates. However, in this decision, the Court considered that all de facto advocate organizations cannot be prohibited as Article 28 and Article 28E paragraph (3) of the 1945 Constitution guarantee freedom of association and assembly.
Nevertheless, Justice Anwar stressed that the Court didn’t justify advocate organizations other than Peradi exercising the eight authorities stipulated in the Advocate Law. This includes the swearing-in of advocates by the high court without any connection to existing advocate organizations. However, there is a consideration that the constitutional rights of any person, including other advocate organizations, cannot be restricted, as Article 28D paragraph (2) of the 1945 Constitution guarantees the right to work as well as income and a fair and proper treatment in work relations.
Justice Anwar said the advocates’ wish for the single- or multi-bar systems has been emphasized in Decisions No. 112/PUU-XII/2014 and 36/PUU-XIII/2015, in which the Court held that both are part of the legislature’s legal policy for the needs of advocates in Indonesia.
Two Key Things
Justice Aswanto mentioned two key things. Firstly, in reference to the finality of the Court's decisions, the debate on the constitutionality of the advocate organization as referred to in the Advocates Law is and should be considered complete. However, in fact, he said, until now advocates have not been able to realize this mandate when in Decision No. 101/PUU-VII/2009, the Court has also considered that Article 28 paragraph (1) of the Advocates Law also mandates a single advocate professional organization, so advocates and existing advocate organizations—the Association of Indonesian Advocates (Peradi) and the Congress of Indonesian Advocates (KAI)—must strive for an advocate organization as referred to in Article the article.
Secondly, he said, it is no less important to understand that the Court’s emphasis on the constitutionality of the advocate organization through its legal considerations came from a strong desire to build the advocate profession as a noble one (officium nobile). This can only be realized by improving the integrity, competence, and professionalism of advocates, in addition to providing legal protection for justice seekers (justiciabelen) who use advocates as their legal counsel.
Lastly, Justice Anwar reminded the advocates that the Court’s decisions are final and binding, through which it set the constitutional guidelines for the advocate organization as referred to in the Advocates Law.
“As final [legal] products, the Court’s decision must be complied with and carried out by all parties or institutions, including advocates, who are the main targets of said decisions. However, in the aforementioned Court decisions, the single- or multi-bar systems are open legal policies under the legislature’s prerogative—in this case, the president and the DPR (House)—which, of course, are adapted to the advocates’ needs.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/24/2021 21:26 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Thursday, July 22, 2021 | 22:15 WIB 258