The Constitutional Court (“CC”) has recently decided to invalidate the provision of Article 36 of Law  No. 5 of 2004 amending Law No. 14 of 1985 on the Supreme Court (the “SC Law”) for violating Article 28D(1) of the Constitution which requires that every citizen has a right to enjoy legal certainty.

The issue in the case at hand is the conflict of authority in supervising the advocate profession. Under Article 36 of the SC Law, the SC holds the power, authority and  responsibility in supervising the Advocate. On the other hand the clearly stipulates that the power, authority, and responsibility belonged to the Advocates Organization.

Conflict between these two laws is deemed to jeopardize the exercise of legal certainty as required by the constitution. The CC then moved to examine provisions of the laws through grammatical, systematical and historical interpretation. The CC discovered that supervision towards legal counsel has been previously excluded from the judicial institution through amendment of Article 54 of Law No.2 Year 1986 on General Court by Law No. 8 Year 2004. The article had previously mandated the court to supervise both legal counsellors and notaries. The amendment law omitted the word “legal counsellor” as appeared on the previous Law although it still mandated the judicial institution to supervise notaries.

In a further development, Law No. 30 Year 2004 on Notarial Office revoked Article 54 as amended by Law No.8 Year 2004 and put the supervision of Notary office to their professional organisation.

As for the Advocates, Law No. 18 Year 2003 stipulates that supervision of the Advocate profession shall be conducted by the advocate’s organisation. Taking the analogy of the Notary Office, the CC concludes that the spirit of the legal reform attempts to put the supervision of public service profession into their respective professional organisations.

To ensure legal certainty, the CC then decides to invalidate Article 36 of the SC Law. Thus, it is provision of the advocate law which governs that the supervision of the Advocate lies in the hand of the Advocate Organisation that prevails. 

The Government however argued that this matter is outside the scope of authority granted to the CC, as it constitutes a legislative review, and not a judicial review.  The 1945 Constitution and its amendments and the CC Law granted the CC the authority to examine all laws toward the Constitution. However, it is silent with regard to which institution is authorized to adjudicate conflict between laws. (mma)