Opinion

Getting foreign advocates
to take bar examination

During the Dutch colonial era, a Dutch advocate named J. Van Den Brand, had his legal practice in Deli in Sumatra.

The graduate of the University of Leiden, the Netherlands, Brand published a journal titled Millionen uit Deli (Million from Deli), in which he wrote how the Dutch brought in workers from the land of Java to be sent to the land now called North Sumatra and the slavery they endured.

Brand stood up for the workers and condemned persecution against them. The persecutors were his countrymen, who owned tobacco plantations.

Many of these laborers were tortured by the Dutchmen who only sought after profits. Without hesitation, the plantation owners beat, kicked and whipped their workers who committed mistakes with a rattan cane. The slaves were jailed in the absence of fair trial.

Brand’s vocation as an advocate called him to defend the workers’ rights. He wrote the tortures in his journal which spread out to the entire world.

In the Tweede Kamer (the Lower House) building, the Netherlands, Brand’s journal was talked about. Brand exposed scandals involving the Dutch masters, prompting the Dutch government to act. In the end officials responsible for the violations were all removed.

It was also Brand’s writing that upset the Opsir Justitie (a judge overseeing North Sumatra) as many laborers sought protection. Such a trend also happened in Batavia at the Raad van Justitie (court) that was always packed with laborers. Thanks to Brand, local people had the courage to demand compensation. Due to his feat, torture and mistreatment of laborers ceased.

After nearly 67 years of independence, foreign advocates are still streaming into the country, albeit with various roles.

There are two types of foreign advocates who are practicing in Indonesia. First are those who have been working for a long time for Indonesian law firms. Many of them speak Indonesian fluently and some are married to native Indonesians and have families here.

Second are those who are practicing in Indonesia but not employed by Indonesian law offices. They frequently commute to Jakarta from their hometowns, such as Singapore, London, New York and other major cities in the world. They may be considered flying in flying out (FIFO) advocates. They hold
tourist or journey visa to visit Indonesia and meet their clients in Indonesia. Therefore they should be banned as they have neither clear status nor contribution to Indonesia.

In fact, Law No. 18/2003 on Advocates regulates possible legal practices of foreign advocates in Indonesian as set forth in Articles 23 and 24 thereof. In addition the government has issued Decree of the Minister of Law and Human Rights No. M.11-HT.04.02/2004 on requirements and procedures for employment of foreign advocates and obligations to provide free legal services to educational institutions and legal researches.

Based on the regulations, foreign advocates may practice in Indonesia so long as they are working for Indonesian law offices, in which the government provides them with permits under recommendation of an advocate organization. Article 3 of the ministerial decree clearly regulates formal requirements for employment of foreign advocates in Indonesia.

However, the Indonesian Advocates Association (AAI) deems the formal requirements are insufficient, as there is no provision about whether a foreign advocate has to pass a bar examination conducted by an advocate organization. And it seems absurd as the formal requirements to foreign advocates only relate to work permit, instead of a license for legal practice issued by an advocate organization.

Therefore, AAI insists that foreign advocates must pass a bar examination conducted by an advocate organization, in which the same requirement is also applicable to Indonesian advocates.

In other countries like the US, Britain, France, the Netherlands and Malaysia, the same requirement is in place. An Indonesian lawyer intending to practice as an advocate in Britain needs a relevant license from the country’s bar organization. In Japan bar examination is conducted in Japanese language, therefore, mastery in Japanese is a must.

Many foreign advocates in Indonesia give their legal opinions to their clients abroad on matters relating to legal aspects under the Law on Limited Liability Company, Law on Capital Investment, contract law principles in Indonesia and processes of execution of decisions of judges/foreign arbiters in Indonesia. The fact indicates that foreign advocates shall possess good knowledge of the Indonesian laws and regulations, which may be different from those in their respective countries.

The authority of a state is felt when there is an acknowledgement of the existence of its legal system. Therefore, if no amendment is made to the regulation on foreign advocates, the system of our national law will be perceived as not authoritative.

AAI recommends that a bar examination be mandatory for foreign advocates in Indonesia. They shall have good understanding of Law on Advocates, Code of Ethics of Advocates, Law on Limited Liability Company, Law on Capital Investment, General Principles applicable in Book III of the Indonesian Civil Code (contract law) and Execution of court decision and foreign arbitration in Indonesia.

Through the establishment of a bar examination administered with clear and good standards, a recommendation issued by an Advocate Organization to foreign advocates shall be accountable.

If implemented, advocate organizations like AAI should be considered authoritative in the eyes of foreign advocates as well as the international community.

We may then differentiate foreign advocates as those who pass the bar examination and reject those
who fail.

Now, it is high time for us to become a host of legal practices. We should not tolerate unprofessional foreign advocates who are working for their own businesses but lack capability of rendering legal opinions or contribution to our country.

Until recently, we have rarely seen foreign advocates who are also true fighters of humanity like Van den Brand.

The writer is chairman of the Indonesian Bar Association (AAI). The opinions expressed are personal.

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