LRWD I N D O N E S I A
Legal Reform Weekly Digest Edition XXVII/Juli/2013
On July 12 2013, the Plenary Session of the House of Representative (DPR) agreed upon the bill on advocates being a Legislative Body initiative. As we can see from the bill, it clearly states that it does not change but rather replaces Law No. 18/2003 on Advocates. The Bill on Advocates is expected to be an entry point towards shaping an advocate to become independent, professional and responsible in running his duties as a noble profession (nobile officium).
However, when viewed in a
comprehensive manner, the bill has not yet guaranteed professionalism and accountability of the advocate’s profession. At least there are a few arguments on why this issue is raised.
First regards the establishment of the National Advocate Board (Dewan Advokat Nasional/DAN). Its purpose leads towards the establishment of a bar council as a roof for advocate
organizations who serve to increase knowledge, competence and skill, as well as setting the standardization for
advocate education. However, how far DAN is competent in consolidating advocate organizations still remains a question. Amid the many and large- scaled authorities of advocate organizations include the absence of prohibition towards previously dismissed advocates to become members of another advocate organization, which raises doubt in the optimization of effectiveness and supervision of DAN.
Secondly, client protection arrangements in this bill can be said to be at a!very minimum. For example, there is no
arrangement about the billing system.
There is only a clause regarding the lawyer’s rights to an honorarium based on agreements with his/her client. Other than that, there are also no
arrangements about complaint mechanisms by a client if the lawyer conducts unprofessionally.
The third issue regards the affirmation of the lawyer’s rights and status. Law No. 18/2003 stated that lawyers are law enforcement officials while the bill states that they are pillars of law enforcement.
This affirmation relates to an lawyer’s rights; the bill states that one of them is to obtain information, data and another documents from government agencies and other parties in interest of the client’s defense. This right that is identical with the authority of law enforcement officials has opened a big gap that in lawyers potentially to be a crime intermediary.
Fourth; the existence of foreign lawyers.
If the Law No. 18/2003 stated that the arrangement of foreign lawyers is contained in the Minister Regulation (Peraturan Menteri), regarding this particular issue in the bill on advocates is contained in the Government
Regulation (Peraturan Pemerintah). Type and form changes of this legal product has not answer any essential problem about foreign lawyers, e.g. the presence of law firm affiliations (Indonesian and foreign law firms) and other issues. The bill also does not include the topic of roles, duties and functions of the parties who have authority in regards to the presence of foreign lawyers. (MGS)
Bill on Advocates Does Not Guarantee Professionalism and Accountability
Legislation
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In This Issue
Bill on Advocates Does Not Guarantee Professionalism and Accountability
Legislation
Supreme Court
Law on the Protection and Empowerment of Farmers: the Criminalization of Agricultural Instructors
Verdict Mistyping on the Supersemar Foundation Case
Legal Policy
Corruption Court Evaluation:
Not Just About The Severity Or
Mildness Of Punishments
In the last few days, various medias are discussing the verdict mistyping on the Supersemar Foundation case.
The verdict from cassation panel judges Harifin Tumpa, Dirwoto and Rehngena Purba strengthened the state court’s and the high court’s verdict but with a little added correction. The verdict stated that the
Supersemar Foundation must pay US $315 million and Rp. 139.2 million (around US $13,667)!while in fact it is supposed to be written Rp. 139,2 billion (around US
$13,66 million). Because of this, the Attorney General could not execute the verdict.
Supreme Court spokesman, Ridwan Mansyur, suggests that the prosecutor should file a review. He also stressed that the typo was pure carelessness. The mistyping of the Supersemar case verdict should not be regarded as ordinary negligence. This mistake is
extremely suspicious and gives out the impression of being a routine modus. Moreover, the mistake of this case has very serious consequences; the verdict cannot be executed. Fines worth millions of dollars were canceled in entering the treasury. Corrections are also not possible because the judges who decided on the case are already retired.
Mistake like this have occurred several times and actually should not happen because it is before the verdict was
read by the judges. A verdict must pass through a long process as typed by the clerks. The verdict draft must also go through corrections of substitute clerks,
members and chairman of the judges and returned back to the substitute clerks. With that process, there should be no room for mistypes. What is awkward about this case is that the verdict was issued three years ago but the mistype has just been realized now. This means that there has been no effort to quickly publicize and execute this matter. If no investigation was held, the mistyped verdict would have increasingly tarnished the Supreme Court thus vitiate legal certainty. The impact of this error would increase even more should the
Supersemar case become more complicated and difficult to execute. (RMF)
Verdict Mistyping on the Supersemar Foundation Case
Supreme Court
“ The mistyping of the Supersemar case verdict should not be
regarded as ordinary negligence“
The Parliament Plenary Session on Tuesday (9/07) has enacted the Law on the Protection and Empowerment of Farmers. The act aims to increase the independence and sovereignty of the farmers’ welfare, as well as
heading towards a better life-quality. Besides that, the law seeks to protect farmers from crop failures and price risks, to supply them with agricultural facilities and infrastructure plus increase the farmers' ability and capacity to run a productive farm.
This law seems both to protect and empower farmers, but the criminal provisions section of article 108 mentions that the instructors and/or Agencies who do agriculture advices that resulted in losses to farmers referred to in Article 49, shall be punished with imprisonment of two years or a maximum fine of 25 million rupiah. Article 49 mentions Instructors and/or Agencies are prohibited to conduct counseling to
farmers, which does not comply with the materials, methods and mechanism that has been determined by the government.
In general, non-government agricultural instructors are farmers. Materials, methods and mechanisms of agricultural work are disseminated to other farmers based on the experience and creativity of farmers according to their natural conditions. Article 49 severely limits farmers to thrive because they have to use the determined material. If not, instructor and/or agencies can be subject to criminal sanctions as referred to in article 108. These articles are also contrary to Article 28C and 28F of the Indonesian Constitution on the right to self-development and to obtain information from all available sources. The articles mentioned above once again confirm the tendency of our legislation that finds it more difficult to carry out criminal sanctions. (SMR)
Law on the Protection and Empowerment of Farmers:
the Criminalization of Agricultural Instructors
Legislation
Indonesia Corruption Watch (ICW) presented a press release relating to the evaluation of the Corruption Court. In the press statement, ICW stated that the Supreme Court should be a moratorium on the selection of corruption case judges and also conduct evaluations on current corruption case judges. ICW argues that from 2010 until now, many judges have mildly adjudicated cases of corruption. In addition, ICW
recorded at least five corruption case judges who were arrested by Komisi Pemberantasan Korupsi (KPK) for involvement in corruption cases plus an additional seven corruption case judges that acted out double roles as advocates.
The evaluation record submitted by ICW is a consequence of the establishment of the Anti-
Corruption policies in the region or in the Capital of the Province in Indonesia. Article 35 of Law No. 46 of 2009 on the Corruption Court regulates that a Corruption Court should be established in every province in Indonesia. The forming of the Corruption Act is part of the mandate of the Constitutional Court decision No.
012-016-019/PUU-IV/2006. However, from that decision, the Court is only mandated to establish a new law as the basis of the existence of the Corruption Court, not mandates for the establishment in each province in
Indonesia. Policies in establishing regional Corruption Courts purely come from law establishment policies by the Parliament and Government.
The decision of establishing regional Corruption Courts bring other implementation issues up until now. Many established Corruption Courts make supervision more difficult. In addition to that, the number of judges is still at a low. Efforts to increase the number of career judges has been done, but it is till lacking because of the large number of cases. Technical problems also occurred such as difficulties in presenting witnesses who live far away from the location of the trial. This happens because of the extensive area coverage of the Corruption Court and the prosecutor did not have an adequate budget to bring the witnesses who are in need of funds for transportation and accommodation.
These complexed problems are what makes the
assessment of corruption case judges not only based on the severity or mildness of a punishment. A
comprehensive evaluation should be done not only towards the judges but also towards the many arising issues such as administrative technical issues and human resource needs, which make the problem much more complex than a mere light sentencing. (FN)
CORRUPTION COURT EVALUATION: NOT JUST ABOUT THE SEVERITY OR MILDNESS OF PUNISHMENTS
Legal Policy
