Another Judicial Review Petition on Advocate?s Oath

 
Christina Desy, Agus Sahbani
 
The ongoing conflict between the two competing bar associations seems far from the end, with members of each organization claiming that they have similar rights to appear before courts. This time the claim is being made by Ismet, a member of the Indonesian Advocates Congress (Kongres Advokat Indonesia – “KAI”).
 
Just recently, Mr. Ismet submitted a judicial review petition to the Constitutional Court, to review the lawyer’s oath provisions set out under Articles 4 (1) and (3) of Law No. 18 of 2003 on Advocates (“Advocate Law”). Specifically, the petitioner requested that the words “Court of Appeal” (Pengadilan Tinggi) to be erased.
 
The Article in question mandates each lawyer to take an oath before the Court of Appeal in order to be able to act as an advocate. Furthermore, the minutes of the oath are submitted by the bailiff of the respective Court of Appeal to the Supreme Court, Minister of Law and Human Rights, and the bar association.
 
Although the provisions seem to be non-discriminatory, the actual implementation of is otherwise. Mr. Ismet experienced that the Court of Appeal only takes oath from members of the Indonesian Advocates Association (Perhimpunan Advokat Indonesia – “PERADI”), despite the fact that the Constitutional Court has issued Decision No. 101/PUU/VII/2009 to guarantee equal rights for all advocates from any bar association to be sworn in.
 
“Every Court of Appeal throughout Indonesia has rejected to take oaths from KAI’s lawyers, including myself. This, in turn, has harmed the interests of KAI’s lawyers,” said Mr. Ismet.
 
Mr. Ismet elaborated that the situation has become worse since the Supreme Court issued a Circular Letter in 2010, stating that PERADI is the only advocate organization acknowledged under the Advocate Law. To that extent, Mr. Ismet strongly believes that the reviewed Article violates Article 28D (1), (2), (3) of the 1945 Constitution, which assures equality before the law for every citizen.
 
As a solution, Mr. Ismet suggests that lawyers should be able to take oath at any proper place at which the oath can be taken by the bar association, instead by the Court of Appeal. Moreover, the ceremony may be attended by authorized officials, such as the Chairman of the Court of Appeal and Head of the Regional Government of the respective jurisdiction, although their presence is not mandatory and should therefore not affect the validity of the oath.
 
Commenting on the judicial review, Justice Maria Farida Indrati, a member of the presiding panel, said that that the deletion of the words “Court of Appeal” will result in uncertainty in the procedure for the lawyer oath-taking process.
 
Prior to this judicial review, Mr. Ismet previously filed a similar petition to the Constitutional Court last March. However, as he failed to attend the second proceedings without providing any valid reason for doing so, the Constitutional Court rejected his petition by rendering Decision No. 40/PUU-XII/2014.
 
Due to this previous occurance, Justice Muhammad Alim, a member of the presiding panel, said that the judicial review may be rejected by the Court, as Article 60 of Law No. 24 of 2003 juncto Law No. 18 of 2011 on Constitutional Court provides that provisions that have been decided on cannot be resubmitted to be reviewed under the same legal basis.
 
(hot/kc)