The Government’s expert taking oath before the constitutional justices at a judicial review hearing of the Notary Law, Tuesday (9/3/2024). 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 Tuesday, September 3, 2024. The petition No. 14/PUU-XXII/2024 was filed by twenty-two notaries.
Before Chief Justice Suhartoyo and the other constitutional justices, Gratianus Prikasetya Putra testified as the President’s expert that a maximum age limit is a preventive measure against violations by notaries. Article 8 paragraph (1) of the Notary Law firmly regulates the maximum age limit at 65 years old.
“Under certain conditions, a notary who has reached the age of 65 can request an extension of the retirement age to 67 years old. This is regulated in Article 8 paragraph (2) of the Notary Law. The opportunity to extend the retirement age is the legislatures’ policy so that notaries who are about to retire have time to adapt and transfer knowledge to their future successors,” he said.
Gratianus asserted that the selection of the maximum age limit was based on the fact that the notary position is an independent job that requires physical prime and health. Notaries must also have good mental health to avoid potential violations, especially related to accuracy in making authentic deeds. It is undeniable that aging brings decline in physiological functions.
He emphasized that the limitation notaries’ age in the law also received some backlash. Some consider that this restriction a violation of the rights of notaries over 67 years old who still have the ability to carry out their notary duties.
“This has been resolved by the Constitutional Court through Decision No. 52/PUU-VIII/2010, which states that the maximum age for notaries in the Notary Law is an open legal policy. The open legal policy is a conceptual breakthrough in the field of policy to ensure public participation and limit the authority of the legislatures and judiciary. Contextually, it is manifested in the role of the DPR as the recipient of the public mandate to form laws,” he explained.
Gratianus said the decision clearly rejects the Petitioners’ argument that Article 8 paragraphs (1) and (2) of the Notary Law are discriminatory when compared to the same restriction on other positions such as judges and advocates. Aside from being an open legal policy, it is not appropriate to compare age restrictions for notaries to that of other professions and positions.
This is in line with several Constitutional Court decisions such as Decision No. 070/PUU-II/2004 dated April 12, 2005, Decision No. 024/PUU-III/2005 dated March 26, 2006, and Decision No. 27/PUU-V/2007 dated February 22, 2008. They specifically explain the limits of such a discrimination. According to these decisions, discrimination is the different treatment of the same thing, while different treatment of different things do not constitute discrimination. In the context of the maximum age of notaries, Article 8 paragraphs (1) and (2) of the Notary Law could be said to be discriminatory if it was applied differently to two or more different notaries. Conversely, the maximum age of a notary cannot be said to be discriminatory when compared to the maximum age of an advocate, which is not regulated in the Advocate Law.
The difference in the scope of the notary and the advocate also makes the comparison of the two irrelevant. In line with Article 16 paragraph (1) letter a of the Notary Law, notaries are not allowed to take sides with one of the parties when making deeds. In contrast, Article 1 point 2 of the Advocate Law explains that the scope of legal services of an advocate is to represent the client’s interests. This provision obliges advocates to always favor the client’s interests.
Therefore, the relationship between advocates and their clients is a power of attorney relationship with individual accountability. Meanwhile, the relationship formed between the notary and the parties is the relationship between the public and officials, so there is indirect state authority in the office of notary.
In addition to avoiding negligence in making authentic deeds, limiting the maximum age is one of the Government’s concrete steps in maintaining the sustainability of the notary office. Based on Article 8 letter c of the Regulation of the Ministry of Law and Human Rights No. 19 of 2021 on the notary position formation and regional category determination, the number of notaries who have retired is one of the deduction variables to calculate the notary formation in a region. The greater the number of retiring notaries will, the greater number of formations there are, and this will indirectly increase opportunities for younger notaries to fill the positions. Conversely, if the maximum age of notaries is increased, it will also restrict regenerations.
“The retirement of senior notaries means opportunities for the younger generation to be appointed as notaries. This principle of sustainability needs to be maintained by the Government given the rapid dynamics of social life. The need for notaries who understand digital aspects is an inevitable need in order to improve the national economy,” said Gratianus.
Notary Age Limits in Other Countries
Gratianus further explained that the diversity of age limits for notaries in Europe shows each country’s sovereignty to determine its own laws. As an international organization that oversees countries in Europe, the European Union only provides a corridor for setting the maximum age limits for certain professions that must not violate the principle of non-discrimination as stipulated in Article 6 paragraph (1) of Council Directive 2000/78/EC of November 27, 2000. In this provision, the European Union allows its members to be decide on their own maximum age limits for existing professions as long as they do not violate the principle of non-discrimination.
“The non-discriminatory principle adopted by the European Union is in line with the Constitutional Court’s opinion regarding the limits of discrimination,” he said.
Meanwhile, another expert for the Government, Khoirunurrofik, who is a lecturer at the University of Indonesia, said that the need for notaries in any given region is closely connected to the regional economy and population demographics. For areas with more quota, the formation should be temporarily eliminated, while areas with less quota should recruit more to achieve equal distribution according to the needs of the economy and regional demographics.
These notary formations should be reviewed annually to adjust to the current economic and demographic resources of the region and also to adjust to the quota of formations that are absorbed.
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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.
Tuesday, September 03, 2024 | 13:41 WIB 152