Legal Literacy - Circular Letter Number AHU-AH.02.37 of 2024 from the Ministry of Law and Human Rights governing the appointment, transfer, and extension of notaries raises significant legal challenges. This policy eliminates the involvement of the Indonesian Notary Association (INI), a legally recognized professional organization, in ensuring the quality and independence of notaries. According to Article 82 paragraph (3) of Law Number 2 of 2014 juncto Law Number 30 of 2004 concerning Notary Positions, INI is the sole free and independent professional organization for notaries, aimed at improving the quality of the notary profession and maintaining its independence. Furthermore, Article 83 paragraph (1) of Law Number 2 of 2014 juncto Law Number 30 of 2004 concerning Notary Positions affirms that the Notary organization, namely the Indonesian Notary Association, has full rights in establishing and enforcing the Notary Code of Ethics.
The importance of INI's role in the appointment, transfer, and extension of notary positions is also emphasized in the Supreme Court Decision of the Republic of Indonesia Number 50 P/HUM/2018. In its legal considerations, the judge stated that the professional organization for notary positions in Indonesia is the Indonesian Notary Association (INI). As the sole professional organization for notary positions, INI should have independence in creating codes of ethics, testing, supervising, and dismissing notaries, including organizing notary appointment examinations that serve as a screening institution to determine the graduation of prospective notaries. The Supreme Court Decision of the Republic of Indonesia Number 50 P/HUM/2018 also affirms that the Notary Appointment Examination organized by the Ministry of Law and Human Rights of the Republic of Indonesia is contrary to higher laws and regulations and is declared to have no binding legal force and is not generally applicable.
A similar decision is found in the Supreme Court Decision Number 3 P/HUM/2022, which also emphasizes that the requirement for quality improvement training for notary positions organized by the Ministry of Law and Human Rights of the Republic of Indonesia has been declared contradictory and has no binding legal force. Ignoring the role of INI in the appointment and extension of notary positions can threaten the independence of the profession and violate applicable legal provisions.
As another comparative illustration, the Supreme Court in Decision Number 50 P/HUM/2018 once stated that a circular regulating general provisions does not have binding legal force and does not apply generally if it contradicts higher regulations. In the judicial review case, the panel of judges stated that a circular requiring publication in international journals for the appointment of professors was declared not generally applicable and not binding because it contradicted higher regulations. This shows that circulars issued by government agencies must comply with the hierarchy of laws and regulations.
Thus, this Supreme Court decision clarifies that circulars issued by government agencies must comply with the hierarchy of laws and regulations. If the circular contradicts higher regulations, the circular may be declared to have no binding legal force and not generally applicable. This indicates that regulations through circulars should not ignore higher legal provisions that have been stipulated in the law.
Broadly speaking, the problem of organizational management disputes cannot be denied to occur in any association in Indonesia, along with the various dynamics that can occur. However, what needs to be noted is the need for wisdom from the government not to further exacerbate the current situation by taking over the authority to carry out notary code of ethics examinations, which is actually the domain of the organization. In this case, if a temporary policy is needed to overcome administrative problems or dualism in management, the regulated mechanism must be clear, limited in time, and carried out wisely, because in any case the role of the Indonesian Notary Association cannot be eliminated in terms of appointment, transfer, and extension of notary positions. This is solely to create the quality of notaries expected by the Notary Position Law.
This policy issued by the Ministry of Law and Human Rights has the potential to cause several constitutional losses. First, by setting aside the role of INI, this policy can harm the constitutional interests of notaries that have been regulated in the law. Second, ignoring the role of INI can affect the independence and integrity of the notary profession, which is important for maintaining public trust in legal institutions. Third, this policy has the potential to create legal uncertainty and disputes that may arise in the future regarding the validity of the appointment and extension of notary positions carried out without involving INI.
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