Legalprofessions
advocates and notaries; a career judiciary and prosecutorate; and legal academics who participate through their doctrine to the elaboration of the law.
5.1 Advocates
Advocates in Indonesia, like advocates in other civil law jurisdictions, represent clients in and outside courts, provide legal advice and services, and exercise all the acts of lawyers which are not reserved to the notaries.
In Indonesia an advocate is licensed by a court to represent his or her clients but the history of Bar Associations in Indonesia is one of competing independent associations, many of which have resisted the idea of a unified Bar. Before 2003 one could join one of these many competing advocates’ associations, each with its own code of ethics, and if disbarred from one association, one could join another.[891]Part of the profession’s resistance to some of the pre-1998 attempts to unify the Bar had to do with the fact that they were perceived as attempts by the then non- democratic central government to control and reign in a legal profession which was often embarrassing the Government by pursuing human rights and corrupÂtion cases.[892] After the fall of Suharto, and the democratic election of a new cenÂtral government, the advocates did not resist as vehemently the project to unify the profession, and LawNo. 18 of2003 on Advocates was adopted.[893] Itprovides for one unified professional association to be formed by lawyers. An association was formed, the Indonesia Advocates Association known as Peradi,[894] but resisÂtance continued and in 2007-08 a rival association was created, the Congress of Indonesian Advocates (KAI).[895] Both KAI and Peradi claim that the other assoÂciation was improperly formed under the Law on Advocates due to technicalities and therefore both claim to be the rightful unified association mandated by the Law on Advocates.
At the time of going to press, both associations were enforcing separate codes of ethics and organising separate exams for admission of law graduates to the profession.To become an advocate, one must, among other conditions, have a degree in law, have participated in the professional program of the Bar Association, have passed its exam, have been an apprentice or pupil in a law firm for two years, be an Indonesian citizen and be at least 25 years of age.[896] Foreign lawyers cannot be advocates of the Indonesian Bar or appear before the courts. They can only practise as experts on foreign law if hired as employees or expert staff by Indonesian firms and only with a special permission of the Government and on the condition of providing pro bono services in legal education and research.142
5.2 Notaries
As in most civil law countries, the notaries are specialised lawyers who are in private practice but whose records of transactions are authentic (notorial deeds or authentic deeds) and therefore are proof of their content in any legal proceedings. Notaries in Indonesia generally also hold the office of �PPAT’ which stands for lPejabatPembuatAkta Tanah, or �Officers Issuing Land Deeds’.143 The office of PPAT grants the notaries a role similar to the one they used to have under the Civil Code with respect to land titles before that part of the Code was replaced in 1960 by the Basic Agrarian Law.144 The notary/PPAT therefore has two offices: that of a notary for non-land transactions and that of a PPAT for land transactions, but together, these two offices are the equivalent of a notary in civil lawjurisdictions.
The profession of notaries is regulated by Law No. 30 of2004 on the Office of Notary. The notary keeps an official record of all the deeds he or she drafts and witnesses. He or she can then issue authentic copies of such deeds which have a very high evidentiary value in court (there is no equivalent of this special status of notorial deeds in the common law tradition). Only notaries (not advocates) can issue such authentic deeds.
They do so for all the parties to a transaction, which means the parties may each have their own advocates, but only one notary will act in the interest of all the parties to formalise the transaction. Many laws beside the Civil Code and the BasicAgrarian Law require certain transactions to be in notorial form (for example, the Company Law requires145 a notorial deed for the formation of a company). The notary can also play a role in inheritances governed by the civil law. In addition to this formal role, the notary often acts as a legal adviser.Law graduates interested in a career as notary/PPAT must undertake addiÂtional training in the form of a Master’s degree in notorial studies (Magister Kenotoriatan) after obtaining their undergraduate degree. Many but not all law schools in Indonesia offer this degree.
5.3 Judges
As is the case in most civil law jurisdictions, being a judge is a career in Indonesia, one which can be pursued soon after graduating from law school. Rather than becoming an advocate or a notary, one may choose to become a judge. Law graduates with some experience may undertake a two-year specialised judicial
142 LawNo. 18 of2003 onAdvocates, art 23.
143 See Government Regulation No. 37 of Year 1998 on the Regulation ofthe Office of Officer Issuing Land Deeds.
144 LawNo. 5 of1960on BasicAgrarianLaw.
145 See LawNo. 40of2007onLimitedLiabilityCompanies, art7(1). training after which they can become a kind of �judge-in-training’ or intern (calon hakim - candidate judge). For a year, the intern will be sent on rotation to different District Courts. After a year, the intern may, on the recommendation of the Chief Justice of the Supreme Court, be appointed a judge by the President of the Republic.[897] Special considerations apply to the appointment of judges in the Religious Courts and to the appointment of non-career judges.
5.4 Attorney-General and prosecutors
Indonesia has long abandoned the position of judge or magistrate of instruction found in some civil law countries[898] and has given the power to investigate crimes and make accusations to the police and to the Attorney-General and its prosecutors respectively.
The Law on Advocates specifically states that advocates cannot be civil servants or state officials.[899] Government or state lawyers, in particular the prosecutors, are not advocates and therefore cannot be members of the advocates’ associations, and therefore form a separate branch of the legal profession.[900]The Public Prosecution Service is headed nationally by the Office of the Attorney-General (KejaksaanAgung), at the provincial level by the State AttorÂney (Kejaksaan Tinggi) and at the regional level by the District Attorney (Kejak- saan Negeri).[901] The Attorney-General and prosecutors also represent the pubÂlic interest outside criminal prosecutions, in some civil and administrative cases.
5.5 Legalacademics
In civil law jurisdictions, legal academics play an important role in the develÂopment of the law. The written and published opinions of academics on the law, what it is, what it should be - collectively referred to as the doctrine - is an important, though not binding, source of law. It is therefore important to have a lively legal academic community in a civil law jurisdiction. One could say the same about Islamic law as the â€?academics’ (here the word â€?ulama’ would be more appropriate) and their opinions through their writing or through a fatwa play an important role in exposing the law and applying it to specific circumstances.
Indonesia has many law schools and hundreds of legal academics. In fact, there are more than 200 law faculties in Indonesia and many more schools which teach Islamic law. There is also a vibrant academic community which contributes greatly to the development of the law.
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