ADVOCATES CANNOT BE PROSECUTED EITHER CIVILLY OR CRIMINALLY FOR CARRYING OUT THEIR PROFESSIONAL DUTIES IN GOOD FAITH FOR THE INTERESTS OF CLIENT DEFENSE INSIDE OR OUTSIDE THE COURT

The Constitutional Court of the Republic of Indonesia (MK) has given its views in granting the petition in case 26/PUU-XI/2013. Regarding this request, the Constitutional Court in Decision Number 006/PUU-II/2004, dated 13 December 2004, considered that “Law Number 18/2003 concerning Advocates is a Law which regulates the conditions, rights and obligations of being a member of a professional organization for advocates, which also includes supervision of the implementation of the advocate profession in providing legal services, both inside and outside the court. Therefore, the aim of the Law on Advocates, apart from protecting advocates as a professional organization, is most importantly to protect the public from advocate services that do not meet legal requirements or from the possibility of misuse of the services of the advocate profession.”

Based on the legal considerations above, according to the Constitutional Court, between the Law requested to be reviewed by the Petitioner and Law Number 16 of 2011 concerning Legal Aid, which was used as one of the petitioner’s arguments, there are differences regarding the protection of advocates and Legal Aid Providers in carrying out their profession. These differences have given rise to different treatment between advocates and legal aid providers which has led to the emergence of fair legal uncertainty between the two professions.

The Constitutional Court views this situation as contrary to Article 28D paragraph (1) of the 1945 Constitution which states, “Everyone has the right to recognition, guarantees, protection and fair legal certainty as well as equal treatment before the law.” This situation is also contrary to the principle of the rule of law as mandated by Article 1 paragraph (3) of the 1945 Constitution. Thus, according to the Constitutional Court, to avoid legal uncertainty, as well as to realize justice for both professions, the Constitutional Court needs to emphasize that the provisions of Article 16 of the Advocate Law must This means that advocates cannot be prosecuted either civilly or criminally for carrying out their professional duties in good faith for the benefit of client defense inside or outside court.

With this opinion, the Court stated that Article 16 of Law Number 18 of 2003 concerning Advocates is contrary to the 1945 Constitution of the Republic of Indonesia, and does not have binding legal force as long as it is not interpreted, “Advocates cannot be prosecuted either civilly or criminally. in carrying out his professional duties in good faith for the benefit of the client’s defense inside and outside the court.”

→ Constitutional Court Decision No. 26/PUU-XI/2013 dated 14 May 2014

Source: https://www.mkri.id/index.php?page=web.Berita&id=9899, and https://www.bphn.go.id/data/documents/26-2013.pdf.

Regards,

Fredrik J. Pinakunary