Bring Nazaruddin home

In the wake of the public debate over graft scandals involving fugitive graft suspect and former Democratic Party treasurer Muhammad Nazaruddin, it is often said and interpreted that advocates are part of law enforcement.

The reason and origin of this notion are probably due to the concept of Catur Wangsa (four pillars of law enforcement), developed during the New Order regime in the 1970s. Catur Wangsa referred to judges, prosecutors, the police and advocates.

But according to the theory of an integrated criminal justice system, advocates in the legal profession are on the opposite side of law enforcement officials, such as prosecutors and the police. The function of advocates in the criminal justice system is to defend clients who are being investigated, interrogated, charged or prosecuted, either in or out of court.

Theoretically, the legal profession is neither recognized nor interpreted as a law enforcement agency, but as legal counsel or lawyers or advocates or attorneys. This is much clearer if we refer to the international instrument, the United Nations Code of Conduct for Law Enforcement Officials, adopted by a General Assembly Resolution 34/169 on Dec. 17, 1979; Commentary (a) of Article 1 reads as follows:

“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.”

The characteristic of law enforcement officials is therefore the function of “police power”, i.e. the right to arrest and to detain, whereas advocates in the legal profession do not possess such “police powers”. On the contrary, an advocate must try to free, reduce, change or avoid prosecution, arrest and detention by law enforcement officials. Advocates are not equipped with “police powers”, but advocates constitute a free and independent profession.

The unique characteristic of the legal profession is in conflict with the Advocate Law; Article 5, paragraph (1) reads as follows:

“Advocates’ status is as law enforcement officials, free and independent, guaranteed by the law and the statutes.”

If the article were applied in practice consistently, an advocate would have to report all of his clients’ criminal acts and the whereabouts of clients who flee, to the police because advocates would be law enforcement officials who possess “police powers” to arrest and detain. In fact, Article 5, paragraph (1) contradicts the advocate’s function according to the same Advocate Law in Article 19 paragraph (1), which states:

“Advocates must keep confidential all matters they know and obtain from their clients due to their professional relationship, save where otherwise provided by this law.”

In fact, the matter of arresting, detaining and searching for a fugitive and uncovering a crime are the duties of the police and prosecutors, not of advocates. To arrest, detain and uncover a crime are not the duties and responsibilities of advocates but of the police and prosecutors as law enforcement officials.

An advocate’s duty is to defend his/her client and, in defending the accused, they must keep confidential their client’s secrets, their conversations with the client, the defense strategies, evidence and witnesses, and so forth. If advocates were law enforcers, the lawyer-client privilege would be violated: especially the parts about keeping secrets, defense strategies and conversations between advocates and clients.

The obligation to keep clients’ secrets (confidentiality) would be obstructed. Thus, the article which stipulates that advocates are law enforcement officials is in conflict with the advocate’s function and his free and independent characteristic, as referred to in Article 5 paragraph (1) of the Advocate Law itself.

Nazaruddin, the most prominent case facing law enforcement in Indonesia today, has been considered public enemy number one for the last few months.

Capturing Nazaruddin, who is now hiding, seems increasingly difficult. Despite all the sophistication of Indonesian intelligence, Nazaruddin’s whereabouts have not yet been determined.

This is very strange and hard to believe, given that Indonesian intelligence is quite competent and has a commendable history. In fact, Indonesian intelligence is as sophisticated as that in other countries, and yet such sophistication is still unable to trace Nazaruddin.

If advocates were law enforcement officials, Nazaruddin’s advocates would have been obliged to drag him back to Indonesia and reveal all his dirty deals and legal offenses to the police.

The same thing would have been expected when Tommy Soeharto, the youngest son of former president Soeharto, fled the country. His advocates would have had to inform the police of his whereabouts at that time.

But that is not the advocate’s duties and responsibilities. According to the International Court of Justice (ICJ), an advocate’s freedom of expression must be guaranteed, giving him the right to take part in public discussions of matters concerning the law, the administration of justice and the promotion and protection of human rights.

It is true that during the drafting of the Advocate Law in the 2000s, advocates wished to be regarded as equals with the police, prosecutors and judges, in line with the concept of Catur Wangsa; their wish was
accommodated in Article 5 paragraph (1) of the Advocate Law. But the inference in the article is far from the actual practice within the legal profession.

Let’s hope that legal experts, lecturers, legal practitioners, the Constitutional Court, law enforcement agencies and the law makers at the House of Representatives realize their mistake in identifying the status of advocates as law enforcement officials, which could restrict, reduce and hinder the free and
independent function of the legal profession.
no one can be perfect....