The Petitioners, along with their legal counsel, during material judicial review hearing of Article 3 paragraph (1) letter c and Article 20 paragraph (2) of Law Number 18 of 2003 on Advocate, Monday (29/10). Photo by MKRI/Bayu

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Jakarta, MKRI – Two lecturers and a student of the Law Faculty of Universitas Indonesia (FH UI) filed a material judicial review petition of Law Number 3 paragraph (1) letter c and Article 20 paragraph (2) of Law Number 18 of 2003 on Advocate (Advocate Law) to the Constitutional Court. The petitioners argued that they suffered constitutional losses due to the enactment of these articles, which stated that an advocate must fulfill a requirement, namely not to have the status of a civil servant or government official and prohibited from holding other positions that demand such service that may harm advocate profession or reduce freedom and independence in conducting their professional duties.

“Actually, this is a concern from functional civil servant lecturers who want to become advocates but are hindered because of the requirements in Law Number 18 of 2003,” the Petitioners’ legal counsel, Mario Ari Leonardus Barus, said in the preliminary hearing of Case Number 150/PUU-XXII/2024 on Monday, October 29, 2024 at the Courtroom.

The prohibition of functional civil servant lecturers to become advocates as referred to in these articles limits the opportunity for functional civil servant lecturers to improve their quality. In fact, lecturers are the spearhead of legal development in Indonesia, because it is through them that the law is disseminated. Thus, the self-development of a lecturer is directly proportional to the quality of knowledge that he can teach to their students.

The Petitioners consist of two FH UI lecturers Djarot Dimas Achmad Andaru (Petitioner I) and Ahmad Madison (Petitioner II) and FH UI student Salsabilla Usman Patamani (Petitioner III). As a result of these articles, Petitioner I as a prospective functional civil servant lecturer and Petitioner II as a functional civil servant lecturer cannot work as an advocate. Even though the Petitioner has participated in special education for the advocate profession and is ready to be appointed as an advocate. The Petitioners' constitutional right to develop their competence and knowledge in the field of law was actually impaired because they could not become functional civil servant lecturers as well as advocates due to the articles a quo.

Meanwhile, Petitioner III as a student will receive legal education from a functional civil servant lecturer who cannot be an advocate. In fact, according to her, functional civil servant lecturers who can simultaneously become advocates will provide more quality legal education than functional civil servant lecturers who do not become advocates. Thus, Petitioner III said that he lost the opportunity which resulted in his constitutional rights being actually harmed because the state university where he was studying would provide functional civil servant lecturers who did not have actual experience in the field of law they taught because they could not become advocates due to the articles a quo.

The Petitioners said that an advocate who can practice in court is indispensable for a law lecturer. This is because courtroom advocacy provides direct experience in interacting with the law in the real world; the experience of direct interaction is different from only conducting legal research because, in the context of research, lecturers are not a direct party (frontline) in handling legal cases and the application of law in society.

According to the Petitioners, in research, functional civil servant lecturers only analyze patterns of community behavior associated with legal theory and/or legislation. This will cause the legal theory that he teaches to students to become static. Conversely, if they become advocates, functional civil servant lecturers can directly test their legal theories on real cases that occur so that the theory becomes developed and can continue to be applied.

In addition, the Petitioners said, considering that the existence of the advocate profession is one of the pillars in law enforcement and is a profession that should not prioritize profit orientation but rather provide legal assistance to the community, it is unreasonable to prohibit functional civil servant lecturers from becoming advocates because in fact, advocacy is an appropriate form of self-development for functional civil servant lecturers to directly experience, apply, and study the development of legal issues comprehensively at the practical level in society. Functional civil servant lecturers' knowledge of the development of current legal issues in society will make the teaching and learning process in public universities more comprehensive. Functional civil servant lecturers will not only be fixated on what is written in books and theories but can directly teach students to deal with legal problems in society, which will later be faced directly by the students themselves.

In their petitum, the Petitioners request the Court to declare Article 3 paragraph (1) letter c of the Advocates Law contrary to the 1945 Constitution and to have no binding legal force as long as it is not interpreted as “...except for civil servants with functional positions who work as lecturers at public universities”. Then ask the Court to declare Article 20 paragraph (2) of the Advocates Law contrary to the 1945 Constitution and has no binding legal force as long as it is not interpreted “...as long as the other positions do not include civil servants with functional positions who work as lecturers in state universities.”

Case Number 150/PUU-XXII/2024 was heard by the Panel of Justices led by Deputy Chief Justice Saldi Isra, accompanied by Justice Enny Nurbaningsih and Justice Arsul Sani. According to Justice Arsul, if the petition of the Petitioners is granted as submitted, it will cause discrimination. “If this is granted, discrimination will occur,” Justice Arsul advised.

This is because there are other civil servants assigned to other research institutions and civil servant lecturers assigned to private universities who may also want to become advocates. However, the article does not accommodate their desire because it is only open specifically for functional civil servant lecturers in state universities.

Before closing the hearing, Deputy Chief Justice Saldi said the Petitioners had 14 days to revise their petition. The documents must be received by the Court no later than Monday, November 11, 2024.

Author: Mimi Kartika.

Editor: N. Rosi

PR: Fauzan F.

Translator: Rizky Kurnia Chaesario (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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