Corruptors fleeing abroad and then becoming fugitives is no longer a new phenomenon in Indonesia, but has become a habit that is no longer taboo to hear about in the news in the mass media from the New Order era until now.
Around 1993-1995, Indonesia was shocked by the Rp 1,3 trillion embezzlement of Bank Bapindo by Edy Tanzil. One can only imagine the enormous amount of money he stole that year. Despite being sentenced to 20 years in prison, he managed to escape and has since vanished, his case buried.
In other news, Indonesia Corruption Watch (ICW) noted that 45 corruptors have fled since 2001. The most recent escape was by Muhammad Nazaruddin, the treasurer of the ruling party, who was allegedly involved in a bribery case related to the construction of the SEA Games athlete's village in Palembang, which cost the state Rp 25 billion. Escapes by corruptors have become rampant in our country, and law enforcement officials appear to be taking no concrete and decisive action to locate and return suspects.
Questions have arisen regarding whose responsibility it is to repatriate a fugitive: law enforcement or an advocate, the person closest to their fugitive client. On numerous occasions, it is often stated and interpreted that advocates are law enforcers, as is also stated in the Advocate Law. The reason and origin of advocates being known as law enforcers may stem from the Catur Wangsa concept developed during the New Order government in the 1970s. Catur Wangsa at that time referred to judges, prosecutors, police, and advocates.
It's likely from this concept that advocates are considered law enforcement officials. However, according to the integrated criminal justice system, advocates, as a legal profession, exist in opposition to law enforcement officials such as prosecutors and police. The advocate's function in the criminal justice system is to defend clients who are being investigated, interrogated, charged, or prosecuted, both inside and outside of court.
The profession of advocate has never been academically defined as law enforcement, but is known and defined as legal counsel or lawyer or advocate or attorney. This will be even clearer if we refer to the international instrument contained in Commentary (a) Article 1 of the United Nations Code of Conduct for Law Enforcement Officials, Adopted by General Assembly Resolution 34/169 of 17 December 1979 which states: “The term "law enforcement officials", includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention.”
Thus, the hallmark of law enforcement is the existence of "police power," namely the right to arrest or detain. Advocates, as a legal profession, do not possess such "police power." Instead, an advocate must try to free, mitigate, amend, and avoid legal charges, arrest, and detention by law enforcement. Advocates are not equipped with "police powers," but rather are a free and independent profession whose duty is to defend the interests, legal rights, and human rights of their clients.
The uniqueness of the legal profession (advocates) which other professions do not have is in fact at odds with the Advocates Law which in Article 5 paragraph (1) states: "Advocates have the status of law enforcers, free and independent, which is guaranteed by law and statutory regulations."
If this is implemented in practice consistently, an advocate must report all criminal acts of his client to the police and clients who run away must also report their whereabouts to the police, because advocates are law enforcers who have "police powers" to arrest and detain. In the case of Nazaruddin, his advocates did not report Nazaruddin's whereabouts because that was not their function and obligation. The task of searching for and arresting Nazaruddin rests with the police. In fact, Article 5 paragraph (1) is contrary to the function of advocates according to the Advocate Law itself, which is stated in Article 19 paragraph (1) which regulates as follows (especially regarding confidentiality): "Advocates are obliged to keep confidential everything they know or obtain from their clients due to their professional relationship, unless otherwise determined by law."
In fact, arresting, detaining, and searching for fugitives (DPO) and uncovering crimes are the duties of the police and prosecutors, not lawyers. Arresting, detaining, and uncovering crimes are not the duties and obligations of lawyers, but rather the duties of the police and prosecutors. In fact, a lawyer's duty is to defend his client. In doing so, he must maintain confidentiality and keep the client's secrets, including his discussions with the client, his defense strategy, the evidence and witnesses he will use, and so on.
If an advocate is a law enforcer, then the Lawyer-Client Privilege is violated, especially regarding keeping secrets, defense strategies, discussions between advocates and clients, etc. The obligation to keep client secrets (confidentiality) is lost. So the article that regulates advocates with the status of law enforcers is completely contrary to the function of advocates and the free and independent nature as referred to in Article 5 paragraph (1) of the Advocate Law itself and therefore the Advocate Law must be amended because it is controversial.
What about the fate of the dozens of suspects, defendants, and convicts of corruption, currently abroad, who have disappeared as if swallowed up by the earth and whose cases have seemingly sunk? Nazaruddin, who has been a suspect, is currently a major issue in Indonesian law enforcement, having been in the public spotlight for months. The government's difficulty in tracking Nazaruddin's whereabouts is questionable, because corruption is no longer a national problem, but has become a transnational phenomenon, making international cooperation crucial in eradicating corruption.
Indonesia, which has ratified the United Nations Convention Against Corruption (UNCAC) in Law No. 7 of 2006 and has stated its intention to participate in the StAR (Stolen Asset Recovery) initiative, should be able to take advantage of this international collaboration. If advocates are indeed law enforcement officers, then Nazaruddin's advocates have an obligation to bring him back to Indonesia and expose all of Nazaruddin's behavior and legal violations to the police. If so, advocates have "police powers," namely the "right to arrest" or "right to detain," so advocates have broader authority because in addition to accompanying and defending their clients, they also have the obligation to arrest and detain them. This would be a contradictory authority.
Indeed, the spiritual atmosphere at the time the Advocate Bill was drafted in the 2000s was that advocates embraced the spirit of wanting to be equal or on par with the police, prosecutors and judges in the “Catur Wangsa” concept introduced in the 1970s, so that this desire was finally accommodated in Article 5 paragraph (1) of the Advocate Law. However, the consequences of this article are very different from the actual function of the advocate profession (legal profession) as known academically and internationally.
After Nazaruddin returns to his homeland, the examination must be carried out in accordance with due process of law By respecting Nazaruddin's rights and ensuring that the interrogation results are not manipulated or manipulated by certain parties, leading to political gain. Nazaruddin must be barred from meeting and communicating with Democratic Party members and free from any attempts to influence him. Corruption Eradication Commission (KPK) officials accused of meeting with Nazaruddin should not be involved in the case due to a conflict of interest. If they can help uncover corruption by various parties, their sentences will likely be reduced.
But if he is silenced, the reputation of the Corruption Eradication Committee and the government will be damaged and will become the focus of international attention because we have ignored him. due process of law especially fair trialNews broke that Nazaruddin refused to be represented and defended by an attorney. This is odd, as he had previously appointed attorneys in Singapore, Indonesia, and Colombia. Questions arise as to why Nazaruddin suddenly refuses to be represented by an attorney. right to counsel The right to appoint an advocate is a basic human right of a suspect and should not be ignored for any reason. Defending a client is the function of an advocate, not arresting or detaining a suspect, which is the responsibility of the police.
Hopefully, legal experts, lecturers, legal practitioners, the Constitutional Court, and members of the House of Representatives (DPR), including Commission III, will realize the error of positioning advocates as law enforcers, which can limit, diminish, and hinder the free and independent function of the legal profession (advocates). The amendment to the Advocates Law is a necessity to address the controversy surrounding the function and duties of advocates as free profession.
*Chairman of Peradin and Lecturer at UPH Faculty of Law
Dr. Frans H. Winarta
Source: http://hukumonline.com/berita/baca/lt4e686578926d9/advokat-bukan-penegak-hukum-dalam-perkara-nazaruddin
