Gadjah Mada University law lecturer Oce Madril testifying as an expert for the Government at a judicial review hearing of Law the Notary, Tuesday (10/8/2024). Photo by MKRI/Panji.
JAKARTA (MKRI) — Provisions on the retirement ages of officials are an open legal policy and cannot be categorized as unconstitutional, said Gadjah Mada University law lecturer Oce Madril, who testified as an expert for the Government at a material judicial review hearing 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) at a hearing on Tuesday, October 8, 2024. The petition No. 14/PUU-XXII/2024 was filed by twenty-two notaries, who challenge the retirement age of the notary stipulated in the Law.
Before Chief Justice Suhartoyo and the other constitutional justices, Oce revealed that Article 8 paragraph (1) letter b and Article 8 paragraph (2) of the Notary Law had been reviewed by the Constitutional Court and ruled in Decision No. 52/PUU-VIII/2010. The Court rejected the entire petition, arguing that the provisions on retirement age of officials are open legal policies and cannot be categorized as unconstitutional.
“The provision on the notary’s retirement age has been regulated since Law No. 30 of 2004. In 2014, the legislatures amended the Notary Law. Back then, the retirement age was not changed. This means that they did not see any urgency to change [it]. This shows that the notary’s retirement age at 65 years is still relevant and matches the needs for the position,” Oce explained.
He said that age restrictions are commonplace in laws on public offices. The retirement age for notaries can be seen as a legislative restriction on one’s term of office or authority. This is customary for public offices. Such restriction of authority is not only from the point of view of substance (material), but also work domain and time. From the constitutional perspective, such a restriction can be justified under Article 28J paragraph (2) of the 1945 Constitution.
The Notary Law, Oce continued, defines the notary as a public official authorized to make authentic deeds and exercise other authority as referred to in the Notary Law. The notary’s retirement age needed to be formulated clearly and definitively in a law to fulfill the principle of legal certainty with regard to the limits of the exercise of the public office’s authority. Notaries are bound by their “term of office” to be able to continue exercising the authority granted by the state.
As an open legal policy, the regulation of the notary’s retirement age cannot be said to violate the right to work and to a decent livelihood, the right to self-development, the right to legal certainty, and the right to be free from discriminatory treatment.
At the hearing, the Government also presented chair of the State Administration Law Department of the Law Faculty of the University of Indonesia (FHUI) Harsanto Nursadi as an expert. He said notaries are authorized to make authentic deeds, as long as it is not assigned or excluded to other officials or persons as stipulated in Article 15 paragraph (1) of the Notary Law.
“Notaries are authorized to make deeds as long as desired by the parties or if according to provisions of the law they must be authentic deeds,” he explained.
Notaries are public officials, but not in government positions. However, in essence, notaries serve the public for the tasks imposed on them by law, i.e. making deeds. A deed is a formulation of the wishes or will (wlisvorming) of the parties as outlined in a notarial deed made before or by a notary. The making of the deed must be based on provisions of the law relating to the procedure for making a notarial deed, so a notary is a public official.
Harsanto said that as a public official, the notary carries responsibilities to the public and to clients. Unlike other professions “similar” to the notary, whose legal relationship is only with clients and not with the public, because they do not hold public authority, so it is natural that everything related to notaries is also limited by public authority, including age restriction, more so if the restrictions are then normalized in legislation.
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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, October 08, 2024 | 15:13 WIB 93