Legal counsel Deddy Rizaldy A.G. conveying the Petitioner’s petition against the Advocate Law, Monday (9/25/2023). Photo by MKRI/

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JAKARTA (MKRI) — Zico Leonard D. Simanjuntak, an advocate, challenges the elucidation to Article 16 of Law No. 18 of 2003 on Advocates (Advocate Law). The preliminary hearing for the case No. 108/PUU-XXI/2023 took place on Monday, September 25, 2023 in the plenary courtroom with Constitutional Justices Manahan M.P. Sitompul, Enny Nurbaningsih, and M. Guntur Hamzah presiding.

The elucidation to Article 16 of the Advocate Law reads, “‘Good faith’ shall mean carrying out professional duties for the sake of upholding justice based on the law to defend the interests of clients. A ‘court hearing’ shall be defined as a hearing at any level of court in any judicial environment.”

Through legal counsel Deddy Rizaldy A.G., the Petitioner argued that the enactment of the norm had caused legal uncertainty over the advocate’s right to immunity in carrying out their profession, which is not limited to court hearings in criminal and civil cases or other cases. It is fairly common for advocates to use their expertise to protect clients by taking legal actions, such as issuing a legal notice on their behalf, negotiating and cooperating with relevant parties, or providing statements concerning the case at hand.

“Based on the a quo article, the Petitioner is only protected for statements inside, not outside the court. It could potentially lead to the Petitioner’s prosecution due to the provision. There should be clear affirmation of Article 16 of the Advocate Law since it has been amended through a Constitutional Court decision, but not its elucidation,” said Deddy.

In his petition, the Petitioner argues that advocates need immunity in defending clients and avoid prosecution when doing so, either criminally or civilly. Advocates such as O.C. Caligis, Fredrich Yunandi, Mamarata Ambarita, Lamberatus Palang Ama, Haposan Hutagalung, and Susitur Handayani had had their right to immunity be violated by other law enforcers, causing concerns in other advocates when carrying out their duties.

Therefore, in his petitum, the Petitioner requests the Court to declare the Elucidation to Article 16 of the Advocate Law unconstitutional and not legally binding if not interpreted as “‘Good faith’ shall mean carrying out professional duties for the sake of upholding justice based on the law to defend the interests of clients. In the event that the advocate is implicated in a legal process, it must be proven by a decree of the Advocate’s Ethics Council. A ‘court hearing’ shall be defined as a hearing at any level of court in any judicial environment. ‘Outside of court hearing’ shall be defined as all further legal efforts for the client’s benefit, including news reporting and press releases about the case.”

Justices’ Advice

Constitutional Justice M. Guntur Hamzah noted in arguing his legal standing, the Petitioner mentioned advocates whose right to immunity had been violated by law. He asked for verification of this statement.

“What is the conceptual basis why an ethical examination should take place before a legal examination? Isn’t it possible for both to run in parallel? For this argument, the Petitioner must present a basis or comparison of counties that demonstrate such point of view and complement the Petitioner’s argument,” he said.

Meanwhile, Constitutional Justice Enny Nurbaningsih focused on the Petitioner’s request for the definition of “good faith,” which could be very broad and require further consideration of Article 16 and its elucidation. Next, Constitutional Justice Manahan M.P. Sitompul asked whether the meaning of “good faith” in the article had been petitioned before.

At the end of the hearing, Justice Manahan announced that the Petitioner had 14 workdays to revise the petition and submit it to the Registrar’s Office no later than Monday, October 9, 2023 at 09:00 WIB.

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Nyi Mas Laras Nur Inten Kemalasari/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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