The Constitutional Court (Mahkamah Konstitusi / MK) handed down a decision in the judicial review of Article 4(1) of the Advocates Law. The decision is interesting for a number of reasons, but primary among these is that the MK declares the relevant article ‘conditionally unconstitutional’ if the provisions of the decision are not implemented in the manner set out in the decision. Furthermore, the decision sets out a definitive time frame for the creation of a single advocates’ association (single bar association).
In essence, the MK has stated that Article 4(1) is constitutional provided that the High Court’s (Pengadilan Tinggi / PT) accept the oaths of prospective advocates. It is explicit that in order to practice as an advocate in Indonesia’s court system an advocate must have sworn or taken an oath at the High Court of their residence. If the relevant High Court refuses to accept / hear that oath, then this would become a hindrance to the ability of a prospective advocate to successfully complete the requirements to practice law in Indonesian courts.
The most contentious issue is seemingly a Supreme Court (Mahkamah Agung / MA) Decision that set out that High Courts were not to accept the oaths of prospective advocates as this would involve the courts directly or indirectly in the ongoing dispute between bar associations as to which one of the bar associations was the legal one pursuant to the Advocates Law. However, it is clear from the Supreme Court decision that this by default involves the High Courts in the dispute because the High Courts would not be accepting any oaths from any prospective advocates. Therefore, the High Courts would clearly be discriminating against prospective candidates who had completed all other requirements in order to practice by not allowing them to swear or take the relevant oath.
The MK decision means that the relevant article, Article 4(1), is constitutional. It means that the High Courts are required to accept the oaths sworn or taken by prospective advocates without consideration of which bar association they are affiliated with. Furthermore, the High Courts must do this for a period of two years. At the conclusion of the two-year period from the date of this decision the relevant bar associations must have resolved their differences and amalgamated into a single bar association pursuant to the provisions of the Advocates Law. If the relevant bar associations are unable to resolve their differences, then these differences are to be resolved through the general courts.
The MK decision does create a bit of a dilemma for the High Court’s as they remain under the direct jurisdictional authority of the Supreme Court, and as yet the relevant Supreme Court decisions with respect to accepting oaths remains in place. The Supreme Court decision is clearly contrary to the orders of the MK as contained in this decision.
The MK decision was handed down on 29 December 2009.
The Constitutional Court (Mahkamah Konstitusi / MK) handed down a decision in the judicial review of Article 4(1) of the Advocates Law. The decision is interesting for a number of reasons, but primary among these is that the MK declares the relevant article ‘conditionally unconstitutional’ if the provisions of the decision are not implemented in the manner set out in the decision. Furthermore, the decision sets out a definitive time frame for the creation of a single advocates’ association (single bar association).
In essence, the MK has stated that Article 4(1) is constitutional provided that the High Court’s (Pengadilan Tinggi / PT) accept the oaths of prospective advocates. It is explicit that in order to practice as an advocate in Indonesia’s court system an advocate must have sworn or taken an oath at the High Court of their residence. If the relevant High Court refuses to accept / hear that oath, then this would become a hindrance to the ability of a prospective advocate to successfully complete the requirements to practice law in Indonesian courts.
The most contentious issue is seemingly a Supreme Court (Mahkamah Agung / MA) Decision that set out that High Courts were not to accept the oaths of prospective advocates as this would involve the courts directly or indirectly in the ongoing dispute between bar associations as to which one of the bar associations was the legal one pursuant to the Advocates Law. However, it is clear from the Supreme Court decision that this by default involves the High Courts in the dispute because the High Courts would not be accepting any oaths from any prospective advocates. Therefore, the High Courts would clearly be discriminating against prospective candidates who had completed all other requirements in order to practice by not allowing them to swear or take the relevant oath.
The MK decision means that the relevant article, Article 4(1), is constitutional. It means that the High Courts are required to accept the oaths sworn or taken by prospective advocates without consideration of which bar association they are affiliated with. Furthermore, the High Courts must do this for a period of two years. At the conclusion of the two-year period from the date of this decision the relevant bar associations must have resolved their differences and amalgamated into a single bar association pursuant to the provisions of the Advocates Law. If the relevant bar associations are unable to resolve their differences, then these differences are to be resolved through the general courts.
The MK decision does create a bit of a dilemma for the High Court’s as they remain under the direct jurisdictional authority of the Supreme Court, and as yet the relevant Supreme Court decisions with respect to accepting oaths remains in place. The Supreme Court decision is clearly contrary to the orders of the MK as contained in this decision.
The MK decision was handed down on 29 December 2009.
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