Chief Justice Suhartoyo and Deputy Chief Justice Saldi Isra presiding over the ruling hearing of the judicial review of Law No. 18 of 2003 on Advocates, Wednesday (3/20/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected the judicial review petition of Article 28 paragraph (3) of Law No. 18 of 2003 on Advocates as interpreted in Constitutional Court Decision No. 91/PUU-XX/2022. The Petitioner questioned the status of chairpersons of advocate organizations in the leadership of presidential election campaign teams.

“[The Court] rejects the Petitioner’s petition in its entirety,” said Chief Justice Suhartoyo at the ruling hearing for Decision No. 22/PUU-XXII/2024 on Wednesday, March 20, 2024 in the plenary courtroom.

Delivering the Court’s legal considerations, Constitutional Justice Daniel Yusmic P. Foekh said an advocate provides legal services both inside and outside the court, such as legal consultation, legal assistance, exercising power of attorney, representing, accompanying, defending, and taking other legal actions for the clients’ legal interests. Therefore, if an advocate that also leads an advocate organization is subject to restrictions when providing legal services for a presidential campaign team, they could be deemed having neglected the client’s interests.

“This means that prohibiting advocates who serve as leaders of advocate organizations and are members of [presidential campaign teams] is akin to exposing them to sanctions for ethical violations, and it is even possible that [they] be sued civilly, because they avoid the obligation to defend clients… outside the judicial process,” Justice Foekh read.

Advocates are prohibited from discriminating against clients based on gender, religion, politics, pedigree, race, or social and cultural background. Thus, an advocate who is also the leader of an advocate organization at the time of his appointment to the presidential campaign team can be said to be willing to provide legal assistance to anyone who needs it regardless of his political beliefs, where it is difficult to separate his duties and responsibilities in carrying out his profession from his position as a member of the presidential campaign team.

The Court emphasizes that the a quo norm cannot possibly be expanded by adding the phrase “and occupying leadership position of a campaign team of presidential and vice-presidential candidates” that the Petitioner requested. If the request was granted, it could actually lead to new legal uncertainty, because it is difficult to tell whether advocates who are leaders of advocate organizations join a presidential campaign team solely because they exercise their political rights or whether they are carrying out advocacy in actualizing their professional duties as advocates.

“Based on the aforementioned legal considerations, the Petitioner’s argument on the lack of restriction on advocate organization chairpersons who are also leaders of presidential and vice-presidential candidate campaign teams is legally groundless,” Justice Foekh concluded.

Also read:

Petitioner Asks If Advocate Organization Leaders Can Join Election Campaign Teams

Petitioner: Advocate Organization Chairpersons Should Not Join Campaign Teams

Advocate Deddy Rizaldy Arwin Gommo (Petitioner) believes that a restriction against advocate organization leaders participating in the election campaign for presidential and vice-presidential candidates serves to maintain the advocate’s integrity, independence, and dignity as mandated by Article 20 of the Advocate Law. If such restriction is not imposed, the goal might not be achieved.

Such involvement can raise questions over the advocate’s independence and freedom in providing legal services without any political influence that can harm clients or the wider public. It is important to note that the people have a constitutional right to fair, neutral, and independent legal services. If advocate organization leaders are involved in political activities that are not in line with the restriction in Article 20 of the Advocate Law, the people’s constitutional right to legal services that are free from political interventions may be harmed.

In the petitum, the Petitioner requests that the Court declare Article 28 paragraph (3) of the Advocate Law as interpreted in Constitutional Court Decision No. 91/PUU-XX/2022 unconstitutional and not legally binding if not interpreted as “A Leader of an Advocate Organization shall hold their office for 5 (five) years and can only be reelected 1 (one) time for the same position, either consecutively or not, and shall not concurrently hold a leadership position in a political party, either at the Central or Regional level, including as a leader of the campaign team of presidential and vice-presidential candidates.”

However, since the petition was rejected, Article 28 paragraph (3) of Law No. 18 of 2003 on Advocates as interpreted in Constitutional Court Decision No. 91/PUU-XX/2022 still reads, “A Leader of an Advocate Organization shall hold their office for 5 (five) years and can only be reelected 1 (one) time for the same position, either consecutively or not, and shall not concurrently hold a leadership position in a political party, either at the Central or Regional level.”

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Tiara Agustina
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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