CYBER NOTARY SOLUTIONS TO NOTARY SERVICES DURING THE COVID-19 PANDEMIC: COULD IT BE IMPLEMENTED IN INDONESIA?

 CYBER NOTARY SOLUTIONS TO NOTARY SERVICES DURING THE COVID-19 PANDEMIC: COULD IT BE IMPLEMENTED IN INDONESIA?

Putu Devi Yustisia Utami, S.H., M.Kn.

Faculty of Law, Udayana University,  E-mail:  deviyustisia@unud.ac.id

The never-ending development of the COVID-19 pandemic caused the Government of Indonesia to issue Government Regulation No.21/2020 concerning Large-Scale Social Restrictions (Pembatasan Sosial Berskala Besar / PSBB). Through PSBB, the Government asks the community to reduce any activities which involve gathering a lot of people, as well as urges the community to stay at home and do work from home activities. The existence of PSBB in several regions in Indonesia not only has an impact on the economic sector but also on the obstruction of the public service sector including Notary services because the Notary office must be closed, therefore it cannot serve the public. On the other hand, the public still desperately needs the services of a Notary in regards to the establishment of companies, making sale and purchase agreements, leases, debt agreements, and other legal documents. The call for physical distancing severely impedes notary services, bearing in mind that a single transaction at a Notary's office will involve 4-5 people for both parties, witnesses, and the Notary him- or herself.

To support this policy, the Central Board of Indonesian Notary Association (Ikatan Notaris Indonesia / INI) calls on the Notaries to carry out work from home and physical distancing. At a time like this, the concept of a cyber notary is needed and could be a solution for the community to obtain a notary service. According to Emma Nurita, the concept of a cyber notary is interpreted as the concept of carrying out the tasks and authority of a notary by using a computer online. Edmon Makarim stated that with the presence of cyber notaries, Notaries can authenticate documents electronically, provide efficient, fast, and precise services, without limitation of space or time by utilizing technological developments. During the COVID-19 pandemic, the application of the concept of a cyber notary can be an ideal solution in notary services. But could the concept of cyber notary be practiced in Indonesia? Until now are still debatable.

The concept of a cyber notary can be implicitly perceived in Article 77 section (1) of the Company Law, which provides a loophole for being able to conduct a General Meeting of Shareholders (GMS) through teleconferencing media, then supported by Electronic Information and Transactions (ITE) Law No. 11/2018 and lastly regulated in Notary Position Law (UUJN) related to the authority of Notary to certify electronic transactions (cyber notary). Edmon Makarim also stated that when compared to the practice of cyber notaries in other countries, it seems that notaries in Indonesia are still falling behind. Several countries in Europe, the United States, the United Kingdom, France, the Netherlands, and Spain have implemented cyber notaries through digital signatures, therefore in an emergency such as the COVID-19 pandemic, these countries are no longer hampered in serving the community. Notaries in Indonesia actually have used information technology in carrying out their duties, but they are still limited to documents related to the Ministry of Law and Human Rights (www.ahu.go.id), such as legalization and approval documents of Liability Limited Company (LLC), Association, Foundations, Cooperatives, registration of Limited Partnership (CV), Firm and Civil Partnership, registration of Fiduciary and testament documents.

What actually causes the concept of cyber notary not to be practiced as a whole in Indonesia? Apparently, this is caused by the disharmony in the legislation including:

1.    Article 1868 of the Burgerlijk Wetboek, whereby an authentic deed must be made before a public official. The phrase "before" is considered an obligation to be physically present before a notary, signing a deed via video conference and an electronic signature is considered to eliminate the authenticity of a notary deed.

2.    ITE Law article 5 section 4 subsection b states that specifically for notary deeds that are compulsory to be in notarial form, it can not use electronic documents because they are considered not valid as evidence.

3.    Notary Position Law in article 16 section c and m in which the Notary is required to attach the fingerprints of the appearers on the original of the deed and oblige to do the reading of the Deed before the appearers. These provisions are considered as an obligation of the physical presence of the parties before a Notary.

Because of the three reasons above, the concept of a cyber notary that could have been a solution during the COVID-19 pandemic is instead not applicable in Indonesia. To be able to serve the community, the Notaries are forced to heed the government's call for work from home and physical distancing. Needless to say, this situation is very risky for public health and the Notaries themselves.

The concept of a cyber notary can only be applied in Indonesia if there is a revision of the Burgerlijk Wetboek as a Dutch inheritance regulation that has been very incompatible with current conditions, especially article 1868. It is also necessary to revise the Notary Position Law and the ITE Law, and the government is expected to make a special arrangement regarding the implementation instructions of a cyber notary to ensure legal certainty. Finally, the most important thing is that there must be a tool that is officially recognized and can be used by Notaries to support the technical implementation of the cyber notary in Indonesia.

The author believes that the rapid development of technology should be utilized by Notaries in carrying out their duties and positions so that when an emergency occurs including the preparation of new normal era, the notary's services to the public are not impeded. The government is expected to be more responsive in seeing this opportunity, to be able to issue regulations that guarantee legal certainty in the field of cyber notaries.