Constitutional justices entering the courtroom for the material judicial review of the Civil Code, the Notary Law, and the EIT Law to examine the petition’s revisions, Thursday (3/14/2024). Photo by MKRI/Ilham W. M.
JAKARTA (MKRI) — The Constitutional Court (MK) held the petition revision hearing of the material judicial review of Article 1868 of the Civil Code (KUHPer), several articles of the Law on the Notary Profession, and the Law on Electronic Information and Transactions (EIT) on Thursday, March 14, 2024. The Petitioners—Sunyoto and Jaka Fiton—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. 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.
Jaka stated that the touchstones had been revised following the panel’s advice at the preliminary hearing on Thursday, February 29. The Petitioners had studied previous petition and ruling on the Notary Law to prevent ne bis in idem.
They had also revised their legal standing. They argue that notaries must be treated equally to advocates and dentists, whose terms of office are not limited.
“The view that notaries are state officials who are subject to their institutions is inaccurate because we are not [state civil apparatus (ASN)] officials, not state officials, and even if we become state officials we must go on leave and not work [concurrently] as notaries,” Jaka said virtually.
The Petitioners also claim that active and non-active notaries are discriminated. Non-active notaries can be subject to retroactive prosecution because when they are determined to no longer serve as a notary, they can no longer receive civil and criminal protection from the notary ethics council.
The Petitioners wish that the notary’s term of office can be extended while they are still healthy. They wish that even after the extension, they can hold their position with recommendation from the notary supervisory council and after submitting a certificate of physical and mental health.
“With regard to authentic deeds in the EIT Law, we believe that they must be recognized as electronic documents or digital authentic deeds,” Jaka added.
The panel hearing was presided over by Constitutional Justices Ridwan Mansyur (chair), Anwar Usman, and Arsul Sani. Before adjourning the hearing, Justice Ridwan stated that the petition will be forwarded to the justice deliberation meeting (RPH), where it will be decided whether it continues to evidentiary hearings or be ruled without plenary hearings.
Also read: Former Notary and Notary Son Challenge Provisions on Notary
The Petitioners have 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.
Author : Mimi Kartika
Editor : Nur R.
PR : Fauzan F.
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.
Thursday, March 14, 2024 | 11:56 WIB 102