Ruling hearing on the judicial review of Law No. 18 of 2003 on Advocates for case No. 113/PUU-XXI/2023, Wednesday (11/29/2023). Photo by MKRI/Fauzan.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected a material judicial review petition of Article 16 of Law No. 18 of 2003 on Advocates (Advocates Law). Decision No. 113/PUU-XXI/2023 on the case filed by Alvin Lim was read out on Wednesday, November 29, 2023 in the plenary courtroom.
“[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” stressed Chief Justice Suhartoyo in the hearing to review the Elucidation of Article 16 of the Advocate Law. The hearing was led by Chief Justice Suhartoyo, accompanied by the other eight constitutional justices.
In the legal considerations delivered by Constitutional Justice Arief Hidayat, the Court said the fulfillment of the right to immunity for advocates is not absolute, but is limited by “good faith,” which is defined in the Elucidation to Article 16 of the Advocate Law as “carrying out professional duties for the sake of upholding justice based on the law to defend the interests of clients.” This is to avoid impunity continuum affectum tribuuit delinquendi, which means that the immunity that a person has brings a tendency for that person to be arbitrary and commit crimes. The Court’s view thus reaffirms its consideration in Decision No. 7/PUU-XVI/2018, delivered at a plenary hearing open to the public on February 28, 2018, stating, “The keyword of the formulation of the right to immunity in this provision lies not in the ‘interest of client defense’ but in ‘good faith’.”
“It means that, a contrario, the immunity is automatically void when ‘good faith’ is not fulfilled. Therefore, there two perspectives in interpreting good faith in the advocate’s immunity right, namely subjective and objective. The objective good faith in this case is an action that must be guided by positive legal and sociological norms or what is considered appropriate by the community,” Justice Arief explained.
Meanwhile, in a subjective perspective, it emphasizes the honesty and attitude of an advocate when performing their duties as part of law enforcement. Justice Arief stated that advocacy is a noble profession (officium nobile), so to carry out duties and obligations they require professionalism and high commitment to law enforcement. Professions in general regulate fundamental rights and have rules regarding behavior or actions in carrying out their profession as formulated in the Indonesian advocates’ code of ethics, which also have self-imposed obligations.
“Therefore, according to the Court, with the right of immunity granted to advocates, there is a great responsibility that they must carry out as part of law enforcement and to maintain the honor of the advocate profession as officium nobile. Thus, the Petitioner’s argument that the unclear definition of ‘good faith’ in the Elucidation to Article 16 of Law No. 18 of 2003 having resulted in restrictions for advocates on access to justice to obtain legal aid and provide defense for clients, so that any violation of the law by an advocate in bad faith must be examined through DKOA, is unreasonable according to law,” he explained.
The Petitioner also argued that the absence of an explanation of the phrase “outside of trial” in the Elucidation to Article 16 of the Advocate Law will eliminate balance in the examination of cases by advocates in defending the clients’ interests. This will block all means for advocates to speak out to convey criticism, suggestions, input, and/or opinions for and on behalf of the clients’ interests, especially in the scope of broadcasting and does not rule out the possibility of pressure, threats, coercion against advocates who are critical and vocal about legal issues faced by clients.
“Regarding the Petitioner’s argument, the Court believes that if the Court follows the Petitioner’s way of thinking, the meaning of ‘outside of trial’ will actually narrow to non-litigation settlement process, which is resolving disputes using existing methods outside the court or through alternative dispute resolution institutions,” Justice Arief explained.
Doctrinally, this non-litigation settlement method is divided into two, arbitration and alternative dispute resolution (ADR), which is divided into consultation, negotiation, mediation, and conciliation. In addition, as previously considered, the central point of the advocate’s immunity right is based on the good faith of the advocate when carrying out professional duties. This means that all legal actions outside the court such as delivering criticism, suggestions, input, and/or opinions for and on behalf of the client’s interests, especially in the scope of broadcasting, must also be carried out based on good faith by advocates as part of law enforcement. Thus, the Petitioner’s argument is unreasonable according to law.
“Based on all the legal considerations above, the Court is of the opinion that the norm of the phrase cannot be challenged in Article 16 of Law No. 18 of 2003, which has been interpreted by the Court through Decision No. 26/PUU-XI/2013 and the Elucidation to Article 16 of Law No. 18 of 2003, does not conflict with the fulfillment of the right to advance oneself in fighting for one’s rights collectively to develop the community, nation, and country as guaranteed in Article 28C paragraph (2) of the 1945 Constitution as argued by the Petitioner. Thus, according to the Court, the Petitioner’s petition has no justification according to law in its entirety,” Justice Arief said.
Also read:
Advocate Requests Court to Interpret Immunity Right
Advocate Revises Petition on Immunity Right
Alvin Lim, an advocate, challenged 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 had 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 requested 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.
Wednesday, November 29, 2023 | 13:59 WIB 239