A Single Bar Association for Indonesia -- No Way!

Sometimes it is not the law in Indonesia that is the "ass" but the lawyers themselves!

I must add, I know a lot of Indonesian lawyers (maybe more than I will ever need to) and the thought of them standing toe-to-toe and slugging it out with their fellow lawyers is something I find mildly amusing. It brings a smile to my face for reasons I cannot properly explain, but just the thought of these upstanding citizens slugging it out....arghhhhhhhhhhh!

The law in Indonesia demands that there is a unified and single bar in Indonesia. This is designed to ensure that there is some degree of consistency and uniformity in the way that Indonesian advocates are certified and come to practice. After the enactment of the Advocates Law back in 2003, this is PERADI (Indonesian Bar Association). PERADI was set up in 2005.

PERADI is inherently infused with politics, some of them personal, and as such it was a no-brainer to expect that sooner or later, and probably sooner, that things would start to heat up around the fringes and then start to unravel, probably in increasingly ugly ways. And, they did. The reality was that the birthing of a new organisation from eight rival bar associations where those eight bar associations were not wound up and dissolved completely meant that simmering tension would remain.

A lot of what has transpired most recently is unbecoming for a professional bar association; it is an embarrassment to all involved. However, the events of today that has seemingly seen lawyers come to blows and the police get involved is a low-point that even some of the more seasoned lawyers might not have thought they would get to see. Some of the scenes were allegedly reminiscent of scenes more likely to be scene in a Taiwanese parliament than at an advocate swearing-in ceremony in a five-star hotel, the Gran Melia, in Jakarta.

Nevertheless, this is what happened when the more recently formed Indonesian Advocates Congress (KAI) turned up at the hotel to protest the swearing-in of the new PERADI advocates by the Chief Justice of the Supreme Court of Indonesia. KAI believes that it is the legitimate organisation to represent the interests of Indonesian advocates. This is based on an argument that PERADI from its inception has been legally flawed. However, this would not seem to be the case in the strictest of legal senses because in a Constitution Court decision from 2006 the Court states that PERADI is the one.

It might be time for the KAI to either suck it up and get on with life under PERADI or continue to pursue ever-dwindling legal options to overturn the PERADI monopoly on certificating Indonesian advocates practicing in Indonesian courts. It is time that KAI recognised, whether it wants to or not, that the Supreme Court has issued a Circular which is explicit in stating that KAI affiliated lawyers cannot practice in court until they have satisfied the PERADI requirements for certification. This Circular was hotly contested by KAI, but it only resulted in a mediated deal that still requires the establishment of a single bar association by 2012.

It really does not matter what the single bar association is called; PERADI, KAI or AA (Advocates Anonymous -- AA considering it is a bar association). What matters is that a unified bar can be formed. This will require a commitment to disbanding all rival associations and congresses once a unified bar can be agreed to. This process is not going to be an easy one; too many personalities and too much politicking, but it has to be done.

In many respects, the future of the Indonesian legal system demands that there is stability and that there is uniformity in the certification process for lawyers. This is necessary, of for no other reason, to ensure the rights  of those who enter the Indonesian legal system to seek justice for themselves or those that they represent.

Two rival advocate associations coming to blows in a five-star hotel is an embarrassment on a grand scale. Shame on you all!

Shame, shame, shame.

(The photo is apparently from twitter and comes via here)

Bali Gubernatorial Election -- Administrative Law Issues

Legal issues and elections in Indonesia are not a new phenomenon and it seems that the Bali Gubernatorial election is not going to be an exception. One of the candidates is someone most Indonesians and many Australians will be familiar with I Made Mangku Pastika.

Pastika was the point man for Indonesia in the aftermath of the first Bali Bombings.

The legal issues here are not so complicated. Nevertheless, there seems to be some confusion about exactly what status Pastika must have before he can legally run as a candidate. The issue is that Pastika is a currently serving police officer. Technically, current police officers, members of the armed forces, and civil servants cannot run for elected office while maintaining their employment status.

The argument focuses on the National Police Law which some legal commentators suggest requires Pastika to resign permanently from the National Police Force before seeking elected office. In contrast the local Balinese ordinance only require that the prospective candidate resign temporarily from their position. This is based on a Regional Election Commission Circular issued in Bali, No. 5 of 2008, which only requires a temporary resignation.

Pastika has temporarily resigned from his position in the National Police Force as Head of the National Narcotics Agency and has a letter to that effect from the National Police Chief, General Sutanto.

The General Election Commission for Bali is standing firm that it only needs to apply the relevant election laws and does not have to consider any of the provisions contained in the National Police Law. However, there are arguments being put forward that the National Police Law is lex spesialis and therefore trumps any general legislation. Therefore, the National Police Law must be applied because it regulates specific issues relating to serving police officers intending to seek elected office.

However, if the General Election Commission of Bali maintains its current position and interpretation of the prevailing and applicable legislation, then it appears that Pastika will continue to seek the office of Governor of Bali.

PERADI vs. KAI

This should be a real hammer and tong battle to the death! The recent establishment of the Congress of Indonesian Advocates (Kongres Advokat Indonesia / KAI) to rival the previous leader of the pack, PERADI (Perhimpunan Advokat Indonesia / Indonesian Advocate Association), is sure to be spectator sport of the highest order! The President was scheduled to open the Congress but PERADI complained in writing and then the President mysteriously fell ill (probably some bad sate).

The battle should see a few families pitted against each other in the heat of battle. However, although possibily amusing, it is not the family angle that is interesting but the legal ones. The Advocates Law (No. 18 of 2003) explicitly requires the establishment of a single peak bar association to represent Indonesian advocates. This had been thought to be PERADI.

Interestingly though, the eight bar associations that existed prior to the establishment of PERADI have remained in existence. The question in my mind has always been why were they not dissolved either by default with the establishment of PERADI or by decree or law by the government? PERADI from the outset needed to be above the day-to-day fray in terms of not pandering to any particular interest and remaining politics free. Any failure to do so was always destined to lead to the development of a rival organization.

It is being reported that the KAI claims that 10,000 of the 15,000 registered and licensed lawyers are ready to bail on PERADI and join up with the KAI. If this were true then the ding dong battle I was hoping to see might not eventuate as the KAI seems to have the numbers for a spill! A no confidence motion in the current PERADI leadership and then replacing them would also work. However, the KAI have adopted a position that PERADI is illegitimate and that the KAI is now the legitimate single bar assosciation as envisaged in the Advocates Law.

As I said the legal issues are certainly to be interesting as this is likely to see the Constitutional Court become involved.

I wonder if Todung Mulya Lubis joins KAI does he get his practice certificate (license) back or what?

I will be watching and reporting if any fun stuff happens.