In today’s global era, national borders seem to be non-existent. Someone from one country can easily work in another country. The type of work also varies, ranging from directors, teachers, cooks, to advocates. In this article, we will discuss specifically the regulation for employing foreign advocates in Indonesia. In 2017, the Ministry of Law and Human Rights has approved 48 applications from Indonesian law firms to employ foreign lawyers. This fact shows that foreign advocates are starting to enter and are interested in the Indonesian legal services market.
Indonesian Center for Law and Policy Studies Researcher, Miko Susanto Ginting, found a fact from 1970 to 2004 the Department / Ministry of Law and Human Rights (HAM) had issued four regulations related to foreign advocates. Currently, general regulations on hiring foreign advocates in Indonesia can be found in Law Number 18 of 2003 on Advocates (“Advocate Law”) and specifically can be found in Minister of Law and Human Rights Regulation No. 26 of 2017 concerning Requirements and Procedures How to Hire Foreign Advocates and the Obligation of Providing Free Legal Services to the World of Legal Education and Research (“Permenkumham No. 26/2017”).
The Advocate’s Office may employ Foreign Advocates as employees or experts in the field of foreign law, including:
- Law of the country of origin; and / or
- International law in the field of business and arbitration and other outside of court settlement.
The number of foreign lawyers who can be employed in a law firm must have a ratio of 4 (four) Indonesian lawyers to one (1) foreign lawyer. However, if the advocate office only has 3 Indonesian advocates, the office will still be allowed to employ 1 (one) foreign advocate. Furthermore, an advocate’s office can only employ a maximum of 5 (five) foreign advocates.
Prohibition for Foreign Advocates
A foreign lawyer is prohibited from proceeding in court, practicing and/or opening a law firm or its representative in Indonesia (Article 23 (1) Advocate Law).
The Advocate Law does not provide further explanation regarding Article 23 (1) above. The term of court proceedings can be interpreted as litigation while opening a law firm or its representative in Indonesia means that a foreign lawyer cannot establish a law office in any form in Indonesia. Also, foreign advocates are prohibited from practicing. What is meant by practice here? Does it include providing Indonesian legal consultation?
According to the Big Indonesian Dictionary, practicing means “doing (carrying out) work (about doctors, lawyers, etc.)”. This raises the question, what is an advocate’s job? Article 1 points 1 and 2 of the Advocate Law regulate:
“1. Advocates are people who work in providing legal services, both inside and outside the court, who meet the requirements based on the provisions of this Law.
2. Legal Services are services provided by lawyers in the form of providing legal consultation, legal assistance, exercising power of attorney, representing, assisting, defending, and carrying out other legal actions in the legal interests of the client.”
Based on the explanation above, it can be concluded that legal consultation is one of the works or practices carried out by an advocate. Although foreign advocates are prohibited from practicing, however, it should be noted that Article 23 (2) of the Advocate Law stipulates that “The Advocate Office may employ foreign advocates as employees or experts in the field of foreign law with the permission of the Government with the recommendation of the Bar Association.” Furthermore, Article 23 (2) explains that foreign law is the law of the country of origin and / or international law in the field of business and arbitration.
In our opinion, by referring to Article 23 (2) of the Advocate Law above, a foreign lawyer is not prohibited from practicing, but his practice is limited to foreign law. In other words, a foreign lawyer is prohibited from practicing or providing consultations related to Indonesian law.
Application for Employment of Foreign Advocates
To employ foreign lawyers, the advocate office is required to apply for approval to the Minister of Law and Human Rights. After the request for approval is obtained, foreign advocates must obtain a work permit from the minister who organizes government affairs in the labor sector. In applying, some documents need to be attached. Information regarding the required documents can be seen in Article 5 paragraph (2) and paragraph (3) Permenkumham No. 26/2017.
When the application is complete, the Minister decides on the approval to employ foreign advocates. Before the decision is issued, foreign advocates are required to explain directly to the Director General of General Law Administration regarding free legal services that will be provided to the world of education and legal research. This decision is valid for only 1 (one) year and can be extended.
A foreign advocate can move from one office to another. It is important to remember that in dealing with a change of workplace, there is an application that must also be submitted to the Minister of Law and Human Rights.
Obligations of Foreign Advocates and Advocate Offices
To work in Indonesia, there is an obligation that must be fulfilled by a foreign advocate, which is, to provide free legal service to the world of education and legal research or to government agencies. If the obligation is not carried out, the minister has the right not to extend the approval to employ foreign advocates.
Furthermore, a foreign advocate is subject to the Indonesian Advocate’s code of ethics and statutory regulations.
Not only foreign lawyers have obligations, but the office of lawyers who employ foreign lawyers also has the obligation to submit written reports to the Director General of General Law Administration every 6 (six) months regarding the implementation of foreign lawyers’ obligations. If the advocate’s office does not fulfill this obligation, the Director General of General Law Administration can provide recommendations to the Minister of Law and Human Rights to: a) not give approval to employ foreign advocates; or b) not extend the approval to employ foreign advocates.
Foreign Advocate Exams
Article 23 of the Advocate Law stipulates “The Advocate’s Office may employ foreign advocates as employees or experts in the field of foreign law with the permission of the Government with a recommendation from a Bar Association.” Referring to that article, Peradi held a foreign advocate examination in order to provide a recommendation letter for foreign advocates working in Indonesia. In other words, to get a recommendation from a bar association, a foreign advocate must take an examination conducted by Peradi. Based on data from the Peradi website, in 2018, 9 lawyers took the exam.
Hope it is useful,
FREDRIK J PINAKUNARY LAW OFFICES