Constitutional Justices Arief Hidayat, Suhartoyo, and Daniel Yusmic P. Foekh presiding over the judicial review hearing of Article 16 of Law No. 18 of 2003 on Advocates, Monday (10/16/2023). Photo by MKRI/Panji.

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JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of Article 16 of Law No. 18 of 2003 on Advocates (Advocates Law) against the Constitution on Monday, October 16, 2023.

At the petition revision hearing presided over by Constitutional Justices Arief Hidayat, Suhartoyo, and Daniel Yusmic P. Foekh, the Petitioner’s legal counsel La Ode Surya Alirman conveyed the revisions to the petition. “First, the explanation of the elucidation to Article 16 of the Advocate Law, which 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,” he said.

He added that Article 1 point 6 of Law No. 8 of 1981 of the Criminal Procedure Code (KUHAP) states that prosecutors are authorized by law to act as public prosecutors and carry out court decisions that have obtained permanent legal force. In addition, public prosecutors are prosecutors who are authorized by law to prosecute and carry out judges’ decisions.

“Basically, the revisions to the petition followed the direction and guidance of the panel of justices at the previous hearing. Regarding Article 16, which has been amended in a 2013 decision and the addition to prosecution theories, the revision to the petition is on page 33 in points 2 and 4,” explained Ali Amsar Lubis, another legal counsel of the Petitioner.

Also read: Advocate Requests Court to Interpret Immunity Right

Alvin Lim, an advocate, challenges the Elucidation to Article 16 of Law No. 18 of 2003 on Advocates. At the preliminary hearing for case No. 113/PUU-XXI/2023 on Tuesday, October 3 , the Petitioner argued that when performing their duties, advocates certainly could potentially conflict with the Police and the Prosecutor’s Office. However, due to the duties imposed on the Petitioner, he was declared a suspect by the Police with report No. LP/B/0536/IX/2022/SPKT/BARESKRIM POLRI on September 19, 2022 on allegation of defamation and/or slander and/or issuing announcement that can cause chaos among the public and/or broadcasting uncertain news or excessive or incomplete news based on Article 45 paragraph (3) in conjunction with Article 27 paragraph (3) of Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions and/or Article 14 paragraphs (1) and (2) and/or Article 310 and/or Article 311 of the Criminal Code.

The Petitioner has carried out his profession in good faith to defend, assist, and provide legal assistance outside the court, in this case, by delivering facts through the media of what his client had experienced. However, due to the report, he was declared a suspect. This raised several issues, impaired the honor of the advocate profession, deprived the Petitioner of the right to immunity as an advocate, and caused legal uncertainty on the advocates’ immunity in carrying out their profession during which they can still be criminally charged.

Therefore, in the petitum, the Petitioner requests the Court to declare Article 16 of the Advocate Law unconstitutional and not legally binding insofar as it is not interpreted as “Advocates cannot be prosecuted either civilly and/or cannot be processed by criminal law in investigation stage while carrying out their professional duties in good faith for the benefit of defending clients in and outs of court.”

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Andhini S.F.
Translator  : Tahlitha Laela/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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