Differences In Legal Counsel And Advocates

JAKARTA - The trial of the criminal case against Kenny Wisha Sonda (KWS), an internal legal lawyer (in-house legal product) from Energy Equity Epic (Sengkang) Pty Ltd (EEES), is now in the spotlight. KWS was charged with giving legal advice that allegedly led to embezzlement of PT Energi Maju Abadi (EMA) income, EEES partner in the role of the Migas Sengkang Block operation.

On Instagram Live titled Ngobras Hukum on September 4, 2024, KWS legal adviser, Fredrik J. Pinakunary, stated that KWS cannot be convicted because KWS is protected by the right of advocate immunity based on Article 16 of Law Number 18 of 2003 concerning Advocates. This immunity right protects advocates in carrying out their duties, including in providing legal advice.

Criminal experts from Muhammadiyah University Jakarta (UMJ) Chairul Huda denied this claim. Huda explained that the legal position of the coalition is different from that of advocates.

"An advocate acts based on a power of attorney, while the legal conditioner works based on a work agreement with the company that employs him. Due to this difference, the right of the advocate's immunity does not necessarily apply to a legal coach," Huda said when contacted by reporters, Tuesday, October 22.

Huda refers to the article "The Right of Advocate Immunity, Absolute or Not?" on the website of the Legal Aid Institute (LBH) Savings of Parahyangan Catholic University. In the article, it is stated that the right of advocates' immunity only applies if advocates act in good faith. If it is proven that there is bad faith, or malicious intent (mens rea), then the right of advocate immunity will not protect the act," said Huda.

In the Memorandum of Objection (Exception) read by the KWS legal advisory team on September 3, 2024, the KWS legal team stated that KWS as a legal coordinate only carried out its duties under the company's orders and was not directly responsible. Not agreeing with this statement, Huda emphasized that both legal organizations and advocates must carry out their profession with good faith and in-depth legal analysis and if proven otherwise, they must be accountable.

Furthermore, Huda emphasized that if later in the trial it was proven that the legal advice given by KWS was deemed not in accordance with these principles and fulfilled the elements of the criminal act charged, then the actions of the KWS must be accounted for.