The Petitioners attending the preliminary hearing of the material judicial review of the Civil Code, the Notary Law, and the EIT Law, Thursday (2/29/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the material judicial review of the Civil Code (KUHPer), the Law on the Notary Profession, and the Law on Electronic Information and Transactions (EIT) on Thursday, February 29, 2024. The Petitioners are father and son who are former and current notary, respectively.

Petitioner I, Sunyoto, is turning seventy this year. On May 5, 2022 he entered into retirement. His son, Jaka Fiton (Petitioner II), is currently a notary until his retirement on October 25, 2044. Petitioner II acts as a proxy for Petitioner I to file the case No. 34/PUU-XXII/2024.

“The Notary Law’s age limit for notaries at sixty-five years is very detrimental. The disadvantage is losing rights to a halal livelihood for decent living because during their tenure, [the notary] is not given a salary, does not become an employee, does not enjoy healthcare BPJS, is not an employee, not an entrepreneur, not a state civil apparatus, not a public official, and is prohibited from concurrently holding any professional positions. So, after retirement a notary no longer has any ability except what they have done during their tenure,” Jaka explained.

The Petitioners feel that their constitutional rights to work and decent livelihood, to develop and advance themselves, to choose a job and a place to live within the state, and to leave the state and to return, as guaranteed in Article 27 paragraph (2), Article 28C paragraphs (1) and (2), and Article 28E paragraph (1) of the 1945 Constitution have been impaired. These losses arise due to the enforcement of specific provisions in the Civil Code, Notary Law, and EIT Law that do not have a ratio legis or a reasonable, appropriate, equal, fair, and correct foundation and/or rationalization.

The Petitioners listed their losses due to the enforcement of the provisions petitioned for review. These losses include, among others, losses due to lacunae, gaps, and disharmony as well continued tradition since the Dutch East Indies colonial period adapted to Article 1868 of the Civil Code, Article 165 of Herzien Inlandsch Reglement, Article 285 of Rechtreglement voor de Buitengewesten, and Article 1 paragraph (7) of the Notary Law; losses due to age restrictions caused by the enforcement of Article 8 paragraph (1) letter b and Article 8 paragraph (2) of the Notary Law; losses due to restrictions on the scope of notaries caused by the enforcement of the provisions of Article 17 paragraph (1) letters a and b, Article 18, and Article 19 paragraphs (1), (2), and (3) of the Notary Law; losses due to the exclusion of concurrent positions as a land deed official (PPAT) and/or Class II auction officer while there is no legal certainty outside the Notary Law for the equivalent regulation based on the norms of the Law, only based on regulations under the law due to the enforcement of Article 17 paragraph (1) letter g of the Notary Law; losses due to the prohibition against concurrent employment of any kind while it is very multi-interpretative, broad, general, and infinite in confining life outside the profession as a person not just for the position due to the enforcement of Article 17 paragraph (1) letter i of the Notary Law; losses due to restrictions against the Petitioners to determine for themselves the honorarium in order to achieve a standard of living and equal opportunities with other citizens due to the enforcement of Article 36 paragraphs (2), (3), and (4) of the Notary Law; losses due to the single notary organization harming their right to contemplate the freedom to determine what is most appropriate, ideal, and minimal or without indications of collusion, corruption, and nepotism, instead only focusing on the quality of members due to the enforcement of Article 82 paragraphs (1) and (2) of the Notary Law; as well as losses due to authentic deeds not being identified expressly and literally for not being electronic documents.

The current contextual fact for notaries as a profession or public official is that they do not exist and stand alone, isolated by technological transformation and services, standards, and best practices in private and public transactions, needs, interests, and purposes for the fulfillment of aspects such as mobility, integrity, comfort, security, connectivity, integration, accuracy, and speed even though Article 1 paragraph (4) of the EIT Law applies.

In their petitum, the Petitioners requests that the Court create new norms and at the same time add new requirements and not just interpret or give new meaning to the articles petitioned for review. They request that the Court declare the provisions reviewed to have no binding legal force and that the Petitioners provide alternative meanings to the articles. 

Petitum 17 Halaman

The panel hearing was presided over by Constitutional Justices Ridwan Mansyur (chair), Arsul Sani, and Daniel Yusmic P. Foekh. Justice Foekh highlighted the number of articles being reviewed and the petitums spanning 17 pages.

“These are the highest number of petitums I have ever encountered,” he said.

However, he added, this is the Petitioners’ prerogative as long as they are able to prove their unconstitutionality.

Before adjourning the hearing, Justice Ridwan announced that the Petitioners should revise the petition and submit it by Wednesday, March 13 at 09:00 WIB to the Registrar’s Office. The Court would notify the Petitioners of the next hearing’s schedule.

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Fauzan Febriyan
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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