The internationally recognized advocate exam and course (training) is known as bar examination hosted by bar association local authorities in various ways. However, before the Advocates Law came into effect, the bar examination and curriculum in Indonesia were administered by the Supreme Court of the Republic of Indonesia through high courts throughout Indonesia. After the Advocates Law came into effect, the right to administer the bar examination was transferred to a sole advocate organization (the name of which is not specified). This differs from the current regulations. advocaten wet in the Netherlands which explicitly appoints NOVA (Nerderlandse Order Van Advocaten) as the organizer of the advocate exam, especially Article 9 C which states:
“De Nederlandse orde van Advocaten draagt zorg voor stagiaries en stelt de stagiarein de gelegenheid deze opleiding te volgen die met een examen wordt afgesloten.”
Which is translated into Indonesian text as follows:
“The Dutch Bar Association (NOVA) will provide a study program for prospective advocates and provide prospective advocates with the opportunity to take a training course, which will culminate in an exam.”
The Advocates Law does not explicitly explain which organization is intended to be the sole advocate organization or the procedures for establishing such an advocate organization. It is not surprising that two organizations claim to be the only legitimate organization established under the Advocates Law, each with its own arguments. However, before the Advocates Law was enacted in 2003, IKADIN and AAI also recognized the sole organization (the term singles bar association pre-advocate law). As a result, there are four advocate organizations which in their basic statutes acknowledge and claim to be a single body (singles bar association) so that the concept of this single body has totally failed to achieve its goal of uniting and improving the quality and standard of Indonesian advocates.
Organizing advocate courses and exams (bar examination) is merely used as a commercial tool to fill the organization's coffers and not for the welfare and improvement of the quality of advocates. In short, the concept of a single institution has completely failed to carry out the aims and objectives stipulated in the Advocates Law. The question now is whether this failed concept will be continued? Application Judicial Review The Constitutional Court has rejected the petition for irrelevant and conceptual reasons, including that the Republic of Indonesia is a unitary state and therefore cannot establish a federation of advocates. Advocates are law enforcers like police or prosecutors who are in a single organization, so advocates can also be in a single organization. The petition for judicial review was also declared nebis in idem even though the reasons and legal basis for the application are different from previous applications and have passed the preliminary examination hearing (dismissal process).
Comparison of the Bar Exam in the Netherlands and the UK
It's worth comparing Western European countries, such as the Netherlands and the United Kingdom, which were earlier in implementing legal examinations and courses (training) through legal organizations. These two countries have different legal systems, namely civil law and common law. The advocate exam in the Netherlands as a democratic and liberal country includes the role of the state cq government in organizing the advocate exam.
Article 9d of the Advocaten Wet states the following:
- "A Board of Governors shall supervise the study program and the examination. The Board of Governors shall have five members, three of which are to be appointed by the Minister of Justice and two by the Assembly of Delegates. The Minister of Justice shall also elect the chairman from among the members."
- “The members of the Board of Governors shall retire after four years of office and may be reappointed once."
Meanwhile in England, Solicitor Act 1974 stipulated in Article 2 as follows:
- "The Society, with the concurrence of the Lord Chancellor, the Lord Chief Justice and the Master of the Rolls, may make regulations (in this Act referred to as “training regulations”) concerning education and training for persons seeking to be admitted or to practice as solicitors.
- ”It shall be the society's duty, before submitting training regulations to the Lord Chancellor, the Lord Chief Justice and the Master of the Rolls for their concurrence under subsection (1), to consult the Secretary of state or, if he so directs, any person or body of person or body of persons specified in the direction.”
It is clear from the description above that the state, government and other authorities are involved in organizing courses (training) and legal examinations. In the Netherlands, this involves 5 Governors appointed by the Dutch Minister of Justice and the program must be approved Governor's and direction from the Dutch Minister of Justice. In England it is organized by Lord Chief Justice (Chief Justice and Lord Chief Justice of England and Wales) and Master of the Rolls (Second Highest Judge after Lord Chief Justice), Where Lord Chief Justice and Master of the Rolls play a role in making regulations "training regulations" and must be approved by them. Bar associations may not be involved in the commercialization of courses and bar exams, because in principle the organization must live from its members' dues (membership dues) and not from the commercialization of advocate courses and exams. It is fitting that professional advocate organizations, which are non-profit and non-commercial organizations, should not be the sole purpose of establishing the organization. The implementation of advocate courses (training) and exams should not be monopolized. Instead, the implementation of advocate courses (training) and exams should be carried out jointly by the state and related parties appointed by the state. This aims to ensure that the organization's financial management is transparent and accountable in accordance with the rules. Good governance.
Exam fees, courses and Solicitor's fees in England is regulated in United Kingdom Legal Services Act 2007:
1. Control of practical fees charged by approved regulators
.....
2. An approved regulator may under the applied amounts raised by practicing fees one or more of the permitted purposes
.....
5. A practicing fee is payable under the regulatory arrangements of an approved regulator only if the Board has approved the level of the fee.
So, bar association you can't just decide for yourself solicitor's fee, exam and course fees but must obtain approval BoardThis is where the Advocate Law loses its link to the advocate courses and exams held by the Supreme Court of the Republic of Indonesia, which were then delegated to advocate organizations. These should not be absolute, but rather should still be monitored in terms of course and exam fees. This is what former Constitutional Justice Maruarar Siahaan questioned: the absence of transitional regulations, making the implementation of advocate courses (training) and exams in Indonesia invalid due to the absence of transitional regulations.
Member Board those who supervise consist of:
"Schedule 1 of the United Kingdom Legal Services Act 2007
1. ”The Board is to consist of the following members:
a. a chairman appointed by the Lord Chancellor
b. the Chief Executive of the Board (see paragraph 13), and
c. at least 7, but not more than 10, other persons appointed by the Lord Chancellor.”
Likewise in the Netherlands it is regulated in Wet Advocates :
"Article 9c:
2. Unless there is an order in council to that effect, the By-law referred to in article 28 shall include detailed rules on the following topics with respect to the training course referred to in subsection 1:
e. the course fee and examination fee to be charged to the trainee.”
Board supervise organizations that have the authority to conduct courses (training) and advocate examinations, administer oaths, collect funds, carry out certifications and other authorities for the provision of continuing education for advocates. The names of advocate organizations that have the authority to organize these activities have been expressly stated, such as The Law Society, The General Council of The Bar, The Master of The Faculties, The Institute of Legal Executives, The Council for Licensed Conveyancers, The Chartered Institute of Patent Attorneys, The Institute of Trade Mark Attorneys and The Association of Law Costs Draftsmen. This provision has created legal certainty and avoided arbitrary actions from the authoritarianism of a single professional advocate organization as resulted from the Advocates Law.
That is why the commercialization of advocate courses (training) and exams is not permitted. Now is the time to amend the Advocate Law, more than five years after its enactment. The amendment needs to regulate advocate courses and exams more orderly and regularly with strict supervision to prevent commercialization by involving the state cq the Supreme Court of the Republic of Indonesia and related parties such as the Minister of Education of the Republic of Indonesia, universities and law enforcement organizations to oversee the program and implementation of advocate courses (training) and exams. The purpose of organizing advocate courses (training) and exams with strict supervision is to improve the quality of advocates, not to make the fees for the exams and courses a source of income for advocate organizations.
Not all law graduates can become advocates and practice law. The commercialization of courses (training) and bar exams has questioned the quality of advocates, and the large number of advocates has failed to address the chaotic law enforcement and the inability of bar organizations to curb the practice of "judicial mafia" or judicial corruption. In fact, the costs of courses (training) and bar exams are perceived as burdensome for aspiring advocates.
Who May Be Appointed as an Advocate
The feud between PERADI and KAI continues to this day. The Indonesian Supreme Court's circular, which previously recognized three advocate organizations, now recognizes only PERADI exam results as valid for inauguration and swearing-in as advocates, has led to disputes that have even reached the courts. There's certainly something wrong with all this conflict, from which organization is legally established under the Advocates Law to the issue of valid advocate courses and exams.
If only the Advocate Law had not been made in a rush and compared with countries that are already established and experienced and based on references to UN international conventions (UN Code of Conduct of Law Enforcement Officials) and IBA (IBA Standard for the Independence of the Legal Profession), perhaps this chaos could have been prevented and resolved.
The efforts of nine senior PERADIN advocates to change the concept of a single institution failed as previously described, including the lack of regulation of advocate courses and exams, finances, supervision, fee which professions and organizations are considered to be bar association has caused endless disputes. This PK application failed due to unreasonable reasons and lack of arguments. compatibility Advocate Law against the 1945 Constitution.
As a result of this dispute and the Constitutional Court's inability to provide a solution, thousands of young advocates cannot be sworn in and sworn in as advocates. Simply stating that the Advocate Law needs to be amended is unacceptable, despite the current situation and facts being quite dire, as the constitutional rights and association rights of thousands of advocates are being violated. In fact, IBA Standard for the Independence of the Legal Profession, in particular Article 9 states:
“No Court or administrative authority shall refuse to recognize the right of a lawyer qualified in that jurisdiction to appear before it for its clients”
No court or government authority in any jurisdiction may deny an advocate the right to practice and represent his or her clients in court. This situation must not be allowed to persist, and amendments to the Advocates Law are essential to eradicate the "judicial mafia" or judicial corruption.judicial corruption) can be improved by having bar association strong, independent, and self-sufficient. Furthermore, such actions violate the constitutional rights of advocates.
*Chairman of Peradin and Lecturer at UPH Faculty of Law
Dr. Frans H. Winarta
