Constitutional Justice Saldi Isra reading out the Court’s legal considerations at the ruling hearing of the judicial review of Law No. 18 of 2003 on Advocates, Monday (10/31/2022). Photo by MKRI/Bayu.

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Monday, October 31, 2022 | 15:18 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) handed down Decision No. 91/PUU-XX/2022 to grant part of the judicial review petition of Law No. 18 of 2003 on Advocates on Monday, October 31, 2022 in the plenary courtroom. The petition was filed by advocate Zico Leonard Djagardo Simajuntak. “[The Court] adjudicated, grants the Petitioner’s petition in part,” said Chief Justice Anwar Usman reading out the verdict alongside the other eight constitutional justices.

In the decision, the Court declared Article 28 paragraph (3) of the Advocate Law, which reads, “The Chairman of an Advocate Organization may not hold a position of the chief of a political party concurrently, both in Central level and Regions,” unconstitutional and not legally binding as long as it is interpreted as “The chairperson of an advocate organization holds their office for 5 (five) years and can only be reelected 1 (one) time in the same position, either in consecutively or not, and cannot concurrently hold a leadership position in a political party, either at the central or regional level.” The restriction implies that any violation is subject to punishment according to statutory laws and regulations.

Periods of Tenure

“Article 28 paragraph (3) of the Advocate Law does not at all restrict tenure and period thereof of the chairperson of an advocate organization. In fact, within reasonable reasoning, since advocates are law enforcers whose position equals that of other law enforcers, the chairperson tenure limitation should be clearly regulated in the law, or at least be set to rotate periodically to avoid abuse of authority. “In this case, the law should be able to provide legal certainty on the tenure limit and tenure period of the chairperson of an advocate organization. [Such a limit] is a way to provide guarantee of legal certainty and equality before the law for all members of the advocate organization who meet the requirements, so as to open up opportunities to fulfill the requirements set in Article 28D paragraph (1) of the 1945 Constitution. In addition, such a limit can meet one of the principles of the rule of law as regulated in Article 1 paragraph (3) of the 1945 Constitution,” Justice Saldi Isra said.

The Court believes the tenure and tenure period is not explicitly regulated in the Advocate Law. Article 28 paragraph (2) of the Advocate Law only states, “Provisions on organizational structure of the Advocates Organization shall be determined by advocates included in the Article of Association.” In practice, this provision is used as the basis for regulating the structure of the advocate organization and its leadership. The tenure of the chairperson of other law enforcement organizations is clearly limited by a statutory norm or is rotated periodically. This must also apply to the advocate organization. Therefore, such a restriction in the advocate organization can guarantee legal certainty and equality before the law for all members and is in accordance with the spirit of limitation of state power. 

Two Periods

Such a restriction, the Court asserted, is common in advocate organizations or organizations in general. Limiting the tenure only to two periods, either consecutively or not, will eliminate or prevent the potential for abuse of power within the organization.

Based on the legal considerations, Justice Saldi explained, although Article 28 paragraph (3) of the Advocate Law bars the chairperson of the advocate organization from concurrently leading a political party at the central or regional level, but because the a quo norm provides restrictions on the chairperson of the advocate organization, the Court has a strong basis for adding other restrictions in order to achieve good governance and safeguard the members’ rights.

Chairperson of advocate organizations could be holding the same position for more than 2 (two) periods prior to this decision de facto. So, for legal certainty and to avoid issues in the advocate organization, the chairperson in question shall continue to carry out his duties until the end of his term and the filling of the vacancy shall be adjusted to the new interpretation of Article 28 paragraph (3) of the Advocate Law as stated in this decision.

Also read:

Three-Period Limit of Chair of Advocate Organization Challenged

Petitioner Challenging Advocate Organization Chairperson’s Tenure Revises Petition 

Dissenting Opinion

Chief Justice Anwar Usman and Constitutional Justice Daniel Yusmic P. Foekh had a dissenting opinion in this case. Justice Foekh asserted that Article 5 paragraph (1) of the Advocate Law states that an advocate shall have a status as law enforcer, be free and independent. Advocates are not paid by the state but receive honorarium for their services to their clients. They are not limited by any retirement age. This, he asserted, is what sets advocates apart from other law enforcers such as the police, prosecutors, and judges, whose salaries are paid by the state budget (APBN).

Those other law enforcers are also limited by a retirement age, thus their professions are formal and part of the political supra-structure, while the advocate is informal law enforcer and part of the political infrastructure.

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/3/2022 08:44 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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