The Petitioners’ experts taking an oath before the constitutional justices at a judicial review hearing of the Notary Law, Thursday (8/22/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The material judicial review of Article 8 paragraph (1) letter b and Article 8 paragraph (2) of Law No. 30 of 2004 on the Notary Public as amended by Law No. 2 of 2014 on the Amendment to Law No. 30 of 2004 (Notary Law) commenced once again on Thursday, August 22, 2024. The petition No. 14/PUU-XXII/2024 was filed by twenty-two notaries.
Before Chief Justice Suhartoyo and the other constitutional justices, Al-Azhar University law expert Suparji Ahmad said that the extension of the notary’s term of office is a constitutional issue and not an open legal policy because limiting the age of notaries is an intolerable injustice, while other professions have no such restriction. He added this constitutes discrimination against the notary profession and violation of morality, given that notary is a profession that does not burden the state. For this reason, the state is obliged to place notary as a profession that does not burden state finances, but instead is at the forefront of increasing state revenue.
“The retirement of notaries is an issue of constitutionality of a norm against the 1945 Constitution, because the Constitution has provided guarantees of protection for citizens to earn a decent living, develop themselves through the fulfillment of their needs, benefit from science, obtain fair legal certainty and equal treatment before the law, and be free from discriminatory treatment without exception for any reason, including for those who have positions as notaries,” Suparji said.
He asserted that one of the criteria of a constitutional open legal policy that is not met is unclear intolerable injustice. The vagueness, he added, is then interpreted intolerable injustice as per Article 8 paragraph (1) letter b and Article 8 paragraph (2) of the Notary Law, which regulates the retirement age of notaries at 65 years old. In addition, though the notary position can be extended until the age of 67 years by considering the health of the person concerned, it could become unconstitutional because it does not provide a guarantee of protection for notaries as citizens, resulting in the Petitioners—who is 67 years old—to be unable to continue working even though they are not a burden on the state finances. In addition, questioning the age requirement is not prohibited by the 1945 Constitution, because there is no explicit age limit for notaries.
“Therefore, [I] believe that since the profession does not burden state finances, no retirement age is necessary,” Suparji said.
Retirement Age
Suparji also said that Indonesians’ life expectancy has increased. Therefore, in order to prevent unemployment among notaries post-retirement, notaries should be set to retire at 70 or more as long as they meet health standards.
Thus, he emphasized, the state could potentially suffer loses by restricting notaries by age, because in addition to not burdening the state budget, notaries also help increase state revenues.
Court May Decide
At the same hearing, professor of legislation at the Law Faculty of the University of Jember, Bayu Dwi Anggono, stated that the Court can still decide on cases relating to open legal policies or related cases if the intended policies violate the limits of open legal policy set by the Court through its decisions. There has been a precedent on this.
Bayu explained taking into account the substantive similarities found in notaries and similar professions such as advocates, there is discrimination between the two, which results in intolerable injustice. He said that the provision that restricts the notary’s age is a discriminatory, irrational regulation, resulting in intolerable injustice. Thus, it is also a violation of the Constitution, i.e. protection against discriminatory treatment in Article 281 paragraph (2); fair legal certainty in Article 28D paragraph (1); the right to develop themselves through the fulfillment of their basic needs in Article 28C paragraph (1); and the right to work and a decent livelihood in Article 27 paragraph (2) of the 1945 Constitution.
As such, he continued, this case should be resolved through a Court decision. When the Court finds an open legal policy that deviates from the limits of open legal policy, it may choose to leave it to the legislatures, who may take their time following it up. The slow change in the law in question may impact the fulfillment of justice and the protection of the citizens’ constitutional rights.
At the hearing, Andira Budiutami testified as the Petitioners’ witness. She recounted how her grandfather was required to retire at the age of 65 despite his physical and psychological health.
“After no longer working as a notary, [Grandpa] continued teaching at the University of Indonesia and regularly playing golf in his spare time. However, losing the profession he loved so much had a significant impact on his psychological condition, which eventually led to a decline in his health. Previously, he and several other notaries tried to take legal actions so that the notary profession would not be limited by age, but these efforts were unsuccessful,” Andira revealed.
Also read:
Provision on Notary’s Age Limit Challenged Again
Case of Notary’s Age Limit Gets More Petitioners
Govt Unprepared, Court Delays Hearing on Notary Law
Govt: Age Requirement for Notary Serves as Parameter
Notary Association’s Executive Board: Provision on Notary’s Retirement Age Harmful
Expert: Most Notaries Still Competent at Age Seventy
The Petitioners challenge the retirement age of the notary stipulated in the Notary Law. They allege that the retirement age of the notary at 65 years of age could potentially cause state losses since they are forced to retire at 65 and lose their source of income. They believe this would make these retired notaries a burden for their families and for the state, which has to provide assistance, protection, and decent living for them.
They believe that notaries whose term of office has ended must be responsible for the deeds they have made, pursuant to the elucidation to Article 65 of the Notary Law, despite not having legal protection. The Law does not specifically regulate legal protection for retired notaries, thus creating a legal vacuum. With that argument, the Petitioners allege that Article 8 paragraph (1) letter b and Article 8 paragraph (2) of the Notary Law are in violation of Article 27 paragraphs (1) and (2), Article 28, Article 28C paragraph (1), Article 28D paragraphs (1) and (2), Article 28H paragraph (1), and Article 28I paragraph (2) of the 1945 Constitution.
Therefore, the Petitioners appealed to the Court to declare Article 8 paragraph (1) letter b and Article 8 paragraph (2) of the Notary Law are in violation of Article 27 paragraphs (1) and (2), Article 28, Article 28C paragraph (1), Article 28D paragraphs (1) and (2), Article 28H paragraph (1), and Article 28I paragraph (2) of the 1945 Constitution and thus not legally binding.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
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, August 22, 2024 | 17:13 WIB 79