Last June, the Constitutional Court ruled that the concept of a single legal organization is constitutional, and that the petition for judicial review (materieele toetsingrecht) of the Advocates Law filed by nine senior advocates from the Indonesian Advocates Association (Peradin) was rejected and declared ne bis in idem. However, in the preliminary hearing, the petition for judicial review of the Advocates Law was declared worthy of review by the Constitutional Court. This is where the Constitutional Court's doubts arise. It is unclear what the reason for this doubt is, whether there are conflicting legal grounds among the nine constitutional justices or due to political influence or other reasons.
Only the judges can answer this, but at the very least, the decision is disappointing and does not provide a solution to the conflict within the organization that has been going on for approximately 5 years since the Advocates Law was enacted and who knows when it will end.
Many errors in the formation of Peradi were not in accordance with the spirit of democracy, where the voting rights of members of the advocate organization were emasculated and ignored. The Peradi management was formed based on collusion between eight leaders of advocate organizations, rather than through a democratic congress based on the principle of one man, one vote, as stipulated by the IBA Standard for the Independence of the Legal Profession, the UN Basic Principles on the Role of Lawyers, and the Singhvi Declaration.
As a result, the Constitutional Court's decision will perpetuate the conflict within the advocates' organization, the consequences of which will be felt by the public, especially advocates and justice seekers. The judicial mafia (Judicial Corruption) will remain rampant, and advocates' organizations have remained silent, and this will continue if the conflict within the advocates' organization is not resolved. The decision does not resolve national issues and interests and ignores three international instruments that lex specialis regulate the association rights of advocates. The provision stating that advocates have the status of law enforcement officials is also an incorrect provision, because the advocate profession is a special profession that is free and independent, and is not part of law enforcement officials. This is stated in Commentary (a) of 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:
“( a ) 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.”
This commentary clearly states that law enforcement must have police powers, namely the power to arrest and detain, which advocates lack, and therefore cannot be categorized as law enforcement. Advocates are a legal profession, not law enforcement, as stated in the Preamble to the IBA Standard:
"The independence of the legal profession constitutes an essential guarantee for the promotion and protection of human rights and is necessary for effective and adequate access to legal services"
The advocate profession is a free profession which is part of the administration of justice to realize an honest, independent and authoritative judicial process as the ideals of a state of law (rechtsstaat). Therefore, an advocate may not be restricted in his right to associate which results in the advocate suffering restrictions on his profession on the grounds that his actions are considered illegal or his membership in an organization is illegal, unless there is a situation that requires a restriction on the right to associate such as a country in a state of emergency. Thus, the advocate's function as a legal profession has a uniqueness that is not possessed by other professions, this uniqueness is recognized by the International Commission of Jurists (ICJ) which states:
“As is the case with judges, freedom of expression and association constitute essential requirements for the proper functioning of the legal profession. Although these freedoms are enjoyed by all persons, they acquire specific importance in the case of persons involved in the administration of justice. Principle 23 of the UN Basic Principles spells out this freedom in clear terms: "Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their legal action or their membership in a legal organization."
Therefore, it is appropriate to amend the Advocate Law, as it contains a misguided definition of law enforcement. Furthermore, D-3 graduates should not be able to become advocates; only S-1 graduates from law schools are eligible to become advocates. This aims to maintain the quality of advocates. The goal of the Advocate Law should be to improve the quality of advocates, not to increase the number of advocates as it currently is.
Comparison with NOVA and Advocaten Wet in the Netherlands.
The number of advocates in the Netherlands is relatively small compared to the number of advocates in Indonesia, which has a pluralistic society, and has agreed to form Single Bar Association (Single Container) followed by promulgating Wet Advocates in 1952. So NOVA (Netherlands Order of Advocates) as singles bar association formed before Wet Advocates enacted and the name NOVA as bar association listed in Wet AdvocatesThis is different from the situation in Indonesia where the idea of a single organization came from the New Order government and IKADIN was formed on November 10, 1985 in Jakarta.
This concept came from above, not from the aspirations of Indonesian advocates, whom Paradin opposed from the outset. Apparently, the judges of the Constitutional Court of the Republic of Indonesia understand the origins of the single-party concept but don't understand or don't want to understand the history of Indonesian advocates. This is not surprising, given its nature. top down and not the aspirations of Indonesian advocates, finally a wave of protests emerged from advocates after the enactment of the Advocate Law since 2003 and this protest action is expected to continue until there is a resolution through the Indonesian Advocate Congress, which was held by IKADIN in 1985, democratically by listening to the aspirations of Indonesian Advocates. As a result, all existing advocate organizations cannot work optimally due to conflict within the advocate organization. Advocate Courses, advocate exams, CLE (Continuing Legal Education), recruitment, training, oaths, advocate education curriculum and others will be neglected and will have an impact on the quality of service and provision of legal services (legal services) to the community cq justice seekers.
The authority to carry out all these activities, which is currently only given to one organization, should be accompanied by transitional regulations in any form, whether through a law, government regulation, or ministerial decree from the state, namely the government, so that its responsibility as an organ appointed by the state has clear legality and accountability. If we look at the Netherlands as a reference, this is very different, where in Wet Advocates In the Netherlands, NOVA's authority is clearly stated. It is clear that the organization is neither a legal entity nor a mass organization nor an NGO. Therefore, its form must be clarified, as no legal organization worldwide is registered before a notary as if it were a limited liability company or foundation.
Outdated and Forced Concept
The concept of a single organization was first proposed by Minister of Justice Ali Said in the late 1970s and presented to the then Chairman of Peradin, Suardi Tasrif, and was immediately opposed by Peradin. Paradin advocates rejected the imposition of such a legal organization from above. This had to come from below, through the Advocates Congress, and be conducted democratically. The authoritarian and corporatist New Order government under President Suharto desired a single legal organization to facilitate control and prevent criticism of Peradin from becoming a thorn in the side of his government. Just as workers were united in the SPSI and journalists in the PWI, advocates were herded into a single organization. When IKADIN was formed in 1985, the New Order government was disappointed to see that 80 percent of its DPP consisted of Peradin advocates. Since then, IKADIN's legitimacy has been undermined through various means, including the splitting of IKADIN and the establishment of other organizations.
Facts show that at least four advocate organizations currently recognize a single body: IKADIN, AAI, PERADI, and KAI. It would be truly hypocritical to decide on and maintain the outdated concept of a single body, which is inconsistent with the spirit of democracy and reform, imposed from above, or contradicts the aspirations of advocates who want it. multi-bar associations or federation of bar associations. Connecting a federal form with a unitary state is narrow-minded, naive, and far from statesmanship. Yet, history and the aspirations of advocates clearly do not require a single entity.
The struggle towards a legal organization that aligns with the aspirations of Indonesian advocates will continue even if the sky falls. FIAT JUSTITIA RUAT COELUM.
*Chairman of the Indonesian Advocates Association (PERADIN)
Dr. Frans H. Winarta
