Civil-Servant Docents May Practice Law with Certain Limitations

Background and Parties to Petition

On December 10, 2024, the Constitutional Court rendered its decision number 150/PUU-XXII/2024 (the “Decision”) on the judicial review of Article 3 (1) letter (c) and Article 20 (2) of Law No. 18 of 2003 on Advocates (the “Advocates Law”). The petitioners were civil-servant-candidate docents at an Indonesia university’s law faculty, a docent who intended to become a civil servant while concurrently practiced law, and a law student desiring to learn from a civil-servant docent who could also serve as an advocate. The Petitioners argued that the absolute prohibition on civil servants becoming advocates infringed their constitutional rights to develop academic expertise, enrich legal education, and enhance access to pro bono legal counsel.

Prior to the Decision, Article 3 (1) of the Advocates Law listed several requirements for an advocate, including under subparagraph (c) that an advocate “shall not hold the status as a civil servant or a state official.” Article 20 (2) of the Advocates Law further stated that “Advocates are prohibited from holding any office or position that demands such a degree of devotion as to harm the advocate profession or reduce the freedom and independence to carry out their professional duties.” These provisions became the central focus of the judicial review.

Court’s Consideration and Conditional Interpretation

In evaluating the arguments, the Court acknowledges that the Advocates Law generally prohibits civil servants from practicing law to safeguard the independence of the legal profession. However, it concludes that Articles 3 (1) (c) and 20 (2) of the Advocates Law should be interpreted in a way that allows universities to carry out their mission under the Three Pillars of Higher Education (i.e., education, research, and community service).

Specifically, the Court rules that civil servant docents may provide advocate’s services, but only on a pro bono, non-commercial basis, and only through the official university legal aid channels. The Court also emphasizes that these docents must not neglect their core teaching and research duties, and that they must follow internal approval procedures and ethical standards.

By partially granting the petition, the Court recognizes that while for-profit legal work remains prohibited for civil servant docents, it permits the docents to engage in community-focused advocate’s work. This exception, the Court notes, may enhance the teaching process and broaden access to legal aid for those in need.

Dissenting Opinions and Concern for Advocate’s Independence

Two of the nine Justices, i.e., Justice Arsul Sani and Justice Daniel Yusmic P. Foekh, have dissenting opinions in the Decision. These Justices contend that any exception risks undermining the advocate’s independence and creating conflicts of interest. They reason that civil servant docents could, in practice, struggle to reconcile their duty of loyalty to the state with an advocate’s mandate to defend client’s interests, including in potential disputes against governmental bodies.

In their view, the absolute prohibition established under the Advocates Law is the best way to safeguard the advocate’s autonomy while maintaining clear lines of accountability and ethical regulation. Although the dissent highlighted concerns the challenges of dual professional commitments, the majority of the Court’s Justices determines that a strictly regulated pro bono framework would mitigate these risks. The majority reason that such a framework would not only protect against conflicts of interest but also advance constitutional goals by fostering academic excellence and expanding access to justice for society.

Implications and Final Ruling

In conclusion, under the Decision, the Court declares that Article 3(1)(c) of the Advocates Law, which prohibits civil servants from becoming advocates, conflicts with the Constitution insofar as it prohibits a civil servant docent from engaging in pro bono advocacy as part of community service. In other words, the prohibition against civil servants acting as advocates does not apply to civil servant docents, provided such advocacy is carried out noncommercially and for the benefit of the public in a university framework.

The Court likewise rules that Article 20(2) of the Advocates Law which forbids advocates from holding any position that might undermine the freedom and independence of the profession, must also be read in harmony with this limited exception for civil servant docents. Under the Decision, civil servant docents who conduct pro bono advocacy in a strictly defined academic context do not violate the prohibition. Beyond that narrow scope, the original prohibition remains in full effect, preserving the core principle of advocate’s independence.

AKSET

Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Rayhan Andana Harits (rharits@aksetlaw.com) for further information.

 

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