The Constitutional Court (“CC”) recently decided to invalidate Article 31 of Law No. 18 of 2003 concerning Advocate (the “Law”) as it contradicts the provision of Articles 1(3) and 28F of the 1945 Constitution of the Republic of Indonesia (the “Constitution”). The CC divided 6 to 3 on the Decision with three judges issuing a joint dissenting opinion.
In adjudicating the matter the CC first considered two elements, namely (i) the authority conferred to it by the law to adjudicate the case beforehand and (ii) legal standing of the petitioners. On the authority issue, the CC decided that it has the authority to hear the case as the enactment date of the Law still falls within the scope of rationne temporis under Article 50 of Law No. 24 Year 2003 on Constitutional Court (“CC Law”). On the legal standing issue, the CC considered the petitioners fulfilled the requirements as mentioned under Article 51 of the CC Law, namely that they are an Indonesian National (the petition was submitted by applicants Tongat SH MH, Sumali SH MH, and Fuad SH Msi) of which constitutional rights are breached. The CC considered that their constitutional right may have been infringed on the circumstances that the petitioners acted on behalf of their Legal Aid institution, Laboratorium Konsultasi dan Pelayanan Hukum Universitas Muhammadiyah Malang (“LKPH UMM”) upon which its activities maybe contravened by Article 31st of the Law.
The CC then moved on to examine the substance of the petition, which was the constitutionality of Art 31 of the Law. Article 31 of the Law stipulated that any person deliberately performing advocate functions and acting as if they are advocate although they are not factually real advocates shall be imposed to penalty, at maximum, 5 years of imprisonment or a penalty worth 50 million rupiahs.
The CC recited the petitioner’s submission that Article 31st of the Law is deemed to be discriminative, unjust, and deprive the petitioner’s constitutional rights so as the enforcement of the Law rendered the petitioner unable to perform its activities in providing legal assistance to the society and commence clinical legal education for its students.
Article 1 point (1) and (2) of the Law define advocate as a person performing legal services to other people. The term “legal services” would comprise of legal consultation, legal assistance, acting on behalf of proxies, representation before and outside the court and performing any other actions for the interest of the client. Persons exercising these functions can be regarded as an advocate under the law. The problem now lies on the evidentiary method as to who may be acknowledged as an advocate. The matter becomes serious as Article 31 of the Law imposed severe penalty for persons deliberately acting as if they are advocate.
The CC reiterated article 1(3) of the Constitution which stipulates that Indonesia is a state founded upon the law and that the right to obtain legal assistance constitute the human rights of its citizen. According to the CC, it is thus the constitutional right of every citizen to obtain legal assistance and the state has the duty to ensure its fulfilment. The CC considered that in reality, formulation of Article 31 of the Law has, not only impaired the performance of Legal Aid Institutions such as LKPH UMM, but also threaten the right of everyone who intended only to provide explanation concerning particular legal issue with criminal penalty. This condition is in contradiction with Article 28F of the Constitution which guarantees the right of every individual to obtain and disseminate information regardless of its medium. Article 31st of the Law has in practice prevented the citizen from obtaining information from non-advocate. The CC considered that the purpose of the Law shall be to protect both advocates and the public. As a regulation governing the Legal profession, the CC considers that the Law shall not turn into a medium whose purpose is simply legalizing and legitimizing advocate as the only one capable to stand before the court. Such measure, the CC elaborated, shall be regulated through procedural law and that the existing procedural law does not specifically regulate parties in dispute to be represented by advocates. The CC further explained that as the existing procedural law is silent, no restriction for non advocate to represent disputed parties before the court shall be made. The CC also explained that such practice is consistent with the current condition as the demand for advocate by the public is superseded by its availability. Restriction by Article 31 may be seen as preventing public access to justice. Citing an opinion from a legal expert, the CC is of the opinion that the law must be arranged and administered transparently so as to allow public access. The CC considered that protection to the public from persons “acting as advocate” would be sufficiently regulated under the existing criminal law. The current Article 31 is deemed to be an exaggerated and overprotective provision which will eventually limit the public access to justice and is therefore inconsistent with Art 1(3) of the Constitution.
The CC held that Article 31 of the Law contravenes the provisions of Article 1(3) and Article 28F of the Constitution and is declared void.
Three joint dissenting opinions suggest that Article 31 does not breach any provisions of the Constitution as it serves to protect both advocate and the community. The dissenting judges were of the opinion that the penalty as provided under Article 31 is common and necessary as the outcome it may cause is also severe. (mma)
