The Petitioners’ legal counsels explaining the petition at the panel preliminary hearing of the judicial review of Law No. 1 of 2023 on the Criminal Code, Tuesday (5/16/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held the material judicial review hearing of Article 509 Law No. 1 of 2023 on the Criminal Code (KUHP) on Tuesday, May 16, 2023 in the plenary courtroom. The petition No. 47/PUU-XXI/2023 was filed by Mohamad Anwar, an advocate.

Article 509 of the Criminal Code reads, “Shall be sentenced to a maximum imprisonment of 1 (one) year or a maximum fine of category III:

1. An advocate who includes or requests to include in a letter of claim or petition for divorce or petition for bankruptcy information regarding the location of residence or the residence of the defendant or debtor, when it is known or reasonably suspected that the information is contrary to the actual situation;
2. A husband or a wife who files a lawsuit or petition for divorce that provides information that is contrary to the actual situation to the advocate as referred to in letter a: or
3. A creditor who submits a petition for bankruptcy that provides information that is contrary to the actual situation to the advocate as referred to in letter a.”

Galang Brilian Putra, the Petitioner’s legal counsel, said the Petitioner challenges Article 509 of the Criminal Code in order to prevent the criminalization of advocates on duty so that there would be no undue casualty when the a quo norm takes effect in the next two years.

He argued that advocates have immunity while on duty with a power of attorney from their clients based on good faith. This means that as long as the advocates receive the power of attorney to defend their clients based on good faith in and out of court, they cannot be sued civilly or criminally.

Galang explained that Article 509 letters a, b, and c of the Criminal Code are correlated and if an advocate commits an act referred to in letter a, they can be criminalized. If a husband or wife commits an act referred to in letter b, the advocate handling the case can also be criminalized even if the client’s husband or wife provides the advocate with a false information.

“If a creditor who submits a petition for bankruptcy that provides information that is contrary to the actual situation to the advocate, as referred to in letter c, who is given power to handle the bankruptcy petition, persons other than the creditor can be subjected to criminal sanctions despite the information being in contrary to the actual situation and was portrayed to the advocate as the actual situation,” Galang said.

He emphasized that Article 509 of the Criminal Code had led to legal uncertainty and threat to and fear in advocates when performing the duties of their profession and had threatened advocates’ dignity and honor. This, he argued, is contrary to Article 1 paragraph (3), Article 28D paragraph (1), and Article 28G paragraph (1) of the 1945 Constitution. Therefore, in the petitum, the Petitioner requested that the Court declare Article 509 of the Criminal Code unconstitutional and not legally binding.

Justices’ Advice

In response to the petition, Constitutional Justice Daniel Yusmic P. Foekh asked the Petitioner to strengthen the reason of the petition (posita). “The posita must be strengthened, in terms of doctrine. There is actually a Constitutional Court decision on this, [which represents] the Court’s stance. In the posita, [you can] add theories and doctrines to move the Court’s stance in relation to this decision. This is important,” he said.

Before adjourning the hearing, Constitutional Justice Suhartoyo informed the Petitioner that he had 14 workdays to revise the petition, which should be submitted by Monday, May 29, 2023 at 14:30 WIB. 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

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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