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Cyber Notary in Indonesia

Cyber Notary in Indonesia

Cyber notary, also known as electronic notary, is a digital service that allows people to notarize documents and transactions electronically. In Indonesia, the implementation of cyber notary is regulated by the Ministry of Communication and Informatics (Kementerian Komunikasi dan Informatika or "Kemkominfo").

Kemkominfo has issued several regulations regarding the implementation of cyber notary services in Indonesia, including Ministerial Regulation No. 20/PER/M.KOMINFO/04/2016 on the Technical Requirements for the Implementation of Electronic Certification and Ministerial Regulation No. 21/PER/M.KOMINFO/04/2016 on the Implementation of Electronic Notary Services.
Under these regulations, cyber notary services in Indonesia must comply with certain technical requirements and standards to ensure the integrity, confidentiality, and authenticity of electronic documents and transactions. The regulations also outline the procedures and requirements for obtaining electronic notary services, including the identification and authentication of parties involved in the transaction.

Implementation of cyber notary in Indonesia is not yet optimal.Currently, there are several companies in Indonesia that offer cyber notary services, and the implementation of this service is expected to continue to grow in the future.
The elucidation of Article 15 paragraph (3) of Law Number 2 of 2014 concerning Amendment to Law Number 30 of 2004 concerning the Position of Notary states that cyber notary applies only within the authority to certify transaction activities between the Notary and the Presence, but not within the authority of the notary in wider scope. In order to encourage effective and efficient technology-based public services in the notary sector, it is necessary to link this with Bureaucratic Reform in Indonesia, especially considering the very rapid development of technology in the current 4.0 era.

Cyber Notary Urgency in Indonesia
Cyber notary bureaucracy needs to be implemented in Indonesia, because it can help the administration of government to achieve good governance. In order to obtain a strong legal basis related to cyber notary, Indonesia must amend the Notary Office Law, Article 16 paragraph 1 letter M "Reading the deed before the appearer by speaking at least two witnesses, or four special witnesses for making wills under hand and signed on the spot by the witnesses and notary appearers”
In line with the demands of the Notary's mandate, which demands faster, easier and less complicated services and limits the space for movement during the Covid-19 pandemic, the perpetrators collided with government regulations to implement health protocols, such as maintaining distance, banning travel and resolving major problems. Forcing the public to be more accepting of the digital era and electronic transactions to facilitate their every activity, all activities are carried out electronically but in making authentic notarial deeds there are still obstacles because they conflict with UUJN. The implementation of technology-based public services in the notary sector has not been implemented as fully as possible in Indonesia. The elucidation of Article 15 paragraph (3) of Law Number 2 of 2014 concerning Amendment to Law Number 30 of 2004 concerning the Position of Notary states that cyber notary applies only within the authority to certify transaction activities between the Notary and the Presence, but not within the authority of the notary in wider scope. In order to encourage effective and efficient technology-based public services in the notary sector, it is necessary to link this with Bureaucratic Reform in Indonesia, especially considering the very rapid development of technology in the current 4.0 era.

An authentic deed is a perfect means of proof, it becomes a perfect proof of what was done or stated in this deed attached to the deed itself, so that it does not need to be proven again and for the judge it is "obligatory evidence" (Verplicht Bewijs), thus Whoever states that an authentic deed is fake, he must prove the falsity of the deed, therefore, an authentic deed has the strength of proof both physically, formally and materially. This is what makes the application of the remote notary concept in Indonesia more difficult than that applied in common law countries.

The application of the Remote Notary concept in Indonesia is not possible under current law (especially the making of partij deeds), bearing in mind that the concept uses electronic devices as a forum for meetings such as teleconferences or video calls, of course this will affect later in the reading and buying process deed. This is not without reason, Article 16 paragraph 1 letter m Law Number 2 of 2014 states that the reading of the deed must be carried out in front of the appearers and at least spectators by 2 (two) witnesses, and in the explanatory law the law stated that the Notary must be physically present and witness the deed before the appearers and witnesses. The word is physically present, if stated word for word, namely present and physically, present means there is or comes, while the word physical has the meaning of body or body, so that it means to be physically present, namely physically present, in other words tangible or physically visible. This explanation regarding being physically present will cause problems in the application of the Remote Notary concept, because the concept is part of a technological advancement that brings together two or more parties in each party's place by using a device that emits sound and displays actual images, so that face shape, voice and real situation can be seen.

The reading of the deed by a notary is an obligation in making an authentic deed. This has been regulated in the provisions of Article 16 paragraph 1 letter m UUJN so that the reading of the deed is part of the verlijden or formalization of the deed. According to G.H.S Lumban Tobing, if the notary himself reads the deed, the appearers on one side the party has a guarantee if they have signed what they heard before (reading by a notary) and on the other hand the appearers and the notary get confidence if the deed really contains what the appearers want.

Violations committed if the reading of the deed is not carried out by a notary, then the deed will have the power of proof as a deed under the hand or in other words the deed has lost its authenticity. As stipulated in Article 16 paragraph 9 UUJN which is written, if one of the conditions referred to in Article 16 paragraph 1 letter m and paragraph 7 is not fulfilled, the deed in question only has the power of proof as a private deed.

Meanwhile, to apply the Cyber Notary, it is necessary to pay attention to other Notary authorities based on Article 15 paragraph 3 UUJN it is written that the authority is to certify transactions carried out electronically, to make certificates of waqf pledges and aircraft mortgages. Cyber Notary itself basically already has a place in the Indonesian legal system, but what is problematic in the implementation of Cyber Notary in Indonesia is the use of electronic signatures which in this case question the strength of proof while the process of making a deed is the same as the process of making a conventional deed. In another sense according to Zainatun Rossalina, if the certification in question is equated with a private letter that is legalized by a notary (legalization), then the certification in question is not an authentic deed, this is because in legalization, the notary must be present in a physical sense to provide certainty of date and mark the hands of the parties/appearers. Meanwhile, if the certification has the same meaning as a private letter registered by a notary (waarmerking), then the certification itself is not an authentic deed because the notary has no responsibility either for the certainty of the date, time or content as well as the form of the letter made by the appearer.

From the above review, the authors make a conclusion regarding the benefits and constraints of cyber notaries in general and making authentic deeds in particular.

The legal regulations regarding the position of notary public used by Indonesia until now are legal products that are not entirely based on modern national law. This is emphasized in the Elucidation of UUJN Part I General which states that most of the regulations regulated in UUJN are still based on laws and regulations from the colonial era of the Dutch East Indies, which during the colonial era did not recognize digital transformation and technological developments that made people literate. towards technology. There is no need to doubt the readiness of supporting facilities related to information technology so that it is implemented in notary services. Regarding the legality of an electronic deed, it can still have legal force even before a court, such as digital signatures, digitally ensured documents, and video conferencing in making deed between the notary and the appearer.
A digital signature is likened to a signature or document that has been locked and its contents cannot be manipulated. In the case of electronic signing, the parties involved use the same key in encrypting and decrypting a document, therefore third parties or others who are not involved in the document, will not be able to access and manipulate the document or signature. Elucidation of Article 15 paragraph (3) UUJN reads "what is meant by "other authorities regulated in laws and regulations", includes the authority to certify transactions carried out electronically (cyber notary), make deed of waqf pledges, and aircraft mortgages". The substance in the legal basis is enough to delegate and approve the implementation of the notary's authority electronically. Indonesia also has a digital signature that can be proven by a trusted digital certificate, namely the PrivyID service.
Article 1 number 7 UUJN states emphatically that a notary deed is made by or before a notary.

The substance of this article can be concluded that in making a deed, it must be made face-to-face before a notary and the parties. This has led to polemics in society regarding the implementation of cyber notaries in Indonesia. Edmon Makarim at the plenary meeting of the Indonesian Notary Association (INI) stated that the presence or encounter between the notary and the appearer which was carried out electronically or via video conferencing was the same as the physical presence which had been perceived so far, because meetings via video conferencing were also carried out live or face to face with the relevant parties involved in making authentic deeds, both making partij deeds and relaas deeds.

Benefit of Cyber Notary
Various advantages and benefits that can be obtained by implementing a cyber notary, namely of course in carrying out the duties of a Notary it can be completed more quickly and saves time, the implementation of transactions such as making deeds / agreements only requires electronic documents but the parties can complete their business transactions, minimizing expenses because they are not constrained by transportation and costs can be calculated , and another important thing is that public services can be provided more effectively and efficiently than conventional services. making the deed electronically, it will minimize the expenditure of these costs. The meeting between the Notary and Appearers is replaced by electronic video conferencing, the Notary and Appearers only need to open their computers from their respective locations without the need to pay for going out.

This certainly affects the efficiency of the time needed, with digital transformation, everything will be more practical and time-saving. The process of making a deed by a conventional notary, such as a sale and purchase deed, takes approximately one month to complete the file processing. However, if file management is done through electronic media, it will be more effective and efficient, the required files can be uploaded through the official website or destination database which can then be processed immediately. Cyber Notary certainly brings many benefits to society, especially in notary services to obtain authentic legalization of deeds.

Cyber notary is closely related to bureaucratic reform which is a process of change towards the desired situation and condition in response to current bureaucratic conditions and demands for improvement. The official website of the Coordinating Ministry for Human Development and Culture of the Republic of Indonesia or KEMENKO PMK RI states that Bureaucratic Reform is a way for the government to achieve good governance and make basic improvements or modifications related to the system of government administration related to aspects of management, institutions and human resources for apparatus. 22 Reform Bureaucracy is a strategic idea to deal with the Industrial Revolution 4.0 which can be implemented by government organizations. This includes three fundamental aspects, namely innovation, collaboration, and most importantly the use of information and communication technology or ICT.

The link between cyber notary and bureaucratic reform is that cyber notary has fulfilled the three fundamental aspects included in bureaucratic reform, in which the cyber notary concept is the same as a new innovation that is offered in a better direction to facilitate daily public services in the notary field. Cyber notary is carried out on the basis of collaboration between the government and the Indonesian Notary Association (INI) with the intention of involving the use of information technology in carrying out the duties and powers of a notary such as digitizing, authenticating and legalizing various documents. The concept of cyber notary aims to achieve good government services with the intention of carrying out fundamental updates and changes concerning aspects of notary management.

Alwesius as Head of the INI Study Program Division opened his voice and emphasized that the statement 'physical presence' in the law cannot be consistently interpreted conservatively where physical presence must be carried out in the same location, but related parties must be aware of developments and interpret it as presence via video conferencing. Other things that become a conflict in law if the concept of cyber notary or remote notary is implemented in Indonesia, include:

1.    Article 1 number 7 UUJN regarding deed must be made by or before a notary.
2.    Article 1 number 8 and number 9 UUJN regarding minutes of the deed and the copy of the deed are no longer different.
3.    Article 16 paragraph 1 UUJN, regarding the obligation to read the deed in front of 2 (two) witnesses and signed at the same time.
4.    Article 38 paragraph 4 UUJN description of the signing and place of signing or translation of the deed if any.
5.    Article 48 paragraph 1 UUJN regarding the contents of the deed may not be changed or added, whether in the form of overlapping, inserting, crossing out or deleting and replacing it with something else.

We understand that the notary world in Indonesia has developed so rapidly and Indonesia has produced many great notaries who play an important role in development. But we also realize, in the digital era where technological developments occur very massively and quickly, demanding high adaptability and flexibility among notaries. The rapid development of this technology must be anticipated by Notaries so that this profession is always relevant to the times and is able to provide the best support for development.

However, on the other hand, there are indications of a status quo that wants the notary world to continue as before the digital development. There are indications that this status quo is happening because many notaries are not ready with the times and tend to maintain that this condition has not changed. Even though digital development is something that can no longer be expected and will definitely affect almost all public professions.

However, in dealing with this, it is not only preparing for the availability of technology, but also strengthening the existing legal foundations, bearing in mind that Indonesia is a state of law. Supposedly, the existing problems related to the Cyber Notary idea can become an urgency, but not an urgency for Notaries only but for parties who have full authority over Bureaucratic Reform efforts and achieving Good Governance, so that there is a form of harmony in realizing Cyber Notaries & Digital Transactions in Indonesia.

Another factor that must be considered is how to amend regulations so that they can capture developments that occur in the digital era. It is better if the revision is carried out by considering aspects of future progress, while still taking into account the legal certainty aspect of the regulation itself. If possible, the revision could cover more principal regulatory aspects by considering various possible changes in the future.

By: Ayu Komala Dewi, S.H.
Mahasiswa Program Studi Kenotariatan,
Fakultas Hukum, Universitas Pancasila

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