The Petitioner’s legal counsel Deddy Rizaldy Arwin Gommo (left) at the ruling hearing of the judicial review of Law No. 18 of 2003 on Advocates, Tuesday (10/31/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected a judicial review hearing of Article 16 of Law No. 18 of 2003 on Advocates on Tuesday, October 31, 2023. The petition was filed by Zico Leonard D. Simanjuntak, who questioned the immunity right of advocates.

“[The Court] rejects the Petitioner’s petition in its entirety,” said Chief Justice Anwar Usman reading the verdict for Decision No. 108/PUU-XXI/2023 alongside the other eight constitutional justices.

Good Faith

In the Court’s legal opinion delivered by Justice Manahan M.P. Sitompul, the Court has emphasized that the advocates’ right to immunity guaranteed and protected by the Advocate Law does not necessarily make advocates immune to the law. It is dependent on whether or not the advocate’s actions are based on good faith. Thus, the definition of good faith in the Elucidation to Article 16 of the Advocate Law requires that in defending their clients’ interests, they uphold law.

The keyword of the right to immunity is not the interests of the client’s defense but good faith. A contrario, the immunity is automatically canceled when the element of good faith is not fulfilled. Thus, the advocates’ right to immunity in carrying out legal defense duties must be based on good faith, i.e. by adhering to the code of ethics and laws and regulations.

The essence of the Petitioner’s request, in principle, is the notions of “good faith” and “in and out of court hearing.” The Court had considered while reviewing the constitutionality of Article 16 of Law No. 18 of 2003 in Constitutional Court Decision No. 26/PUU-XI/2013, which was affirmed in Decision No. 52/PUU XVI/2018. The legal opinions of the two decisions are mutatis mutandis.  Therefore, it was found that the Elucidation to Article 16 of the Advocate Law did not violate the principles of independent judicial power; equality before law and government; recognition, guarantees, protection, and fair legal certainty; as well as freedom of association, assembly, and expression as guaranteed in Article 24 paragraph (1), Article 27 paragraph (1), Article 280 paragraph (1), and Article 28E paragraph (3) of the 1945 Constitution. Thus, the Petitioner’s argument was legally unreasonable in its entirety.

Also read:

Petitioner Affirms Advocate’s Right to Immunity

Petitioner Emphasizes Role of Advocates’ Ethics Council

Zico Leonard D. Simanjuntak challenged the elucidation to Article 16 of Law No. 18 of 2003 on Advocates (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.”

At the preliminary hearing, through legal counsel Deddy A.G, the Petitioner argued that the enactment of the norm has 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.

Therefore, in his petitum, the Petitioner requested 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.”

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