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Ada Pertanyaan? Hubungi Kami Marcell Sihombing, Nando Narendra
A seminar entitled Notary Readiniess and Professional Competency Standards: AEC Era Opportunities and Challenges. Photo by: NNP
The effective implementation of the ASEAN Economic Community (AEC) in 2015, means that eight Mutual Recognition Agreements (MRA) agreed by ASEAN member countries are now in force. These agreements facilitate the opening up of a number of professions (engineering services, nursing services, architectural services, and so forth). This effectively means that the MRAs in question allow professionals or skilled laborers working across the eight sectors covered to set up shop in any ASEAN member country of their choice, so long as they are in possession of the proper qualifications for the job and adhere to the various standards agreed by ASEAN member states.
At present, the notary profession is not covered by any of the above eight professional services which have been incorporated into the new MRAs. However, there’s no guarantee that the notary profession will not also be liberalized under a future MRA. This particular concern was raised during a recent discussion event entitled Notary Readiness and Professional Competency Standards: AEC Era Opportunities and Challenges. The event took place during the 22nd Indonesian Notary Association Congress, which was held in Palembang on Friday, 20 May 2016.
During the discussion, Harkristuti Harkrisnowo, a Criminal Law Professor at Universitas Indonesia, asserted that notaries would see an exponential increase in the number of foreign clients working to acquire notarial deeds as the AEC became established. Mrs. Harkrisnowo also reminded the assembled delegates that notaries would need to overcome a number of major hurdles in order to be able to compete in any free-market of notaries introduced under the auspices of the AEC at some point in the near future. By way of example, Mrs. Harkrisnowo pointed to the liberalization of the legal profession in the European Union (EU) through the adoption of European Union Directive No.25/36/EC on Reciprocal Recognition and Implementation of Free Movement of Legal Services and Legal Profession.
“Taking the EU’s liberalization of the free movement of lawyers and the provision of legal services [within its territory] as an example, it may well be possible that another MRA will be drawn up in the future [which liberalizes the notary profession], which is why Indonesian notaries must take anticipatory steps in order to prepare themselves,” asserted Mrs. Harkrisnowo.
During her address, Mrs. Harkrisnowo highlighted a number of essential skills which she claims must be mastered by Indonesian notaries in order that they are able to cope effectively with the open borders ushered in by the AEC. Firstly, the ability to speak English competently is seen as essential in order that notaries are able to attract and communicate effectively with potential foreign clients.
Secondly, notaries should also be well-versed in investment law, as the inauguration of the AEC era should in time lead to a significant increase in the amount of foreign direct investment (FDI) in Indonesia. Knowledge of capital-exchange market law, trade law, and similar laws are thus viewed as crucial.
“Notaries can no longer focus their energies solely on the drawing up of notarial deeds [for clients] and must further improve their skill sets. Remember, Europe has already opened up its legal system. Proper preparation and anticipation are therefore essential and the traditional mantra of ‘business as usual’ no longer applies,” claimed Mrs. Harkrisnowo.
Thirdly, notaries are also being urged to improve their general competency, which is ultimately the responsibility of the Central Board of the Indonesian Notary Association (PP INI). By way of example, Mrs. Harkrisnowo recalled her time as Director General of General Law Administration at the Ministry of Law and Human Rights and related how she would often receive widely differing reports regarding the general competency of notaries hailing from many different regions across the country.
As a result of this formative professional experience, Mrs. Harkrisnowo asserted that possession of a master’s degree was no longer sufficient for professionals working in the notary profession. Instead, she suggested that aspiring professional notaries should first undergo a mandatory two-year management training program, as well as take an additional special professional notary course, in the same way that aspiring lawyers are required to take a mandatory Special Professional Lawyers Course (Pendidikan Khusus Profesi Advokat - PKPA). Moreover, Mrs. Harkrisnowo also believes that candidates should pass several tests, including a code of ethics test as well as a professional competency test, before they can finally obtain official notary status and are allowed to offer notarial services to the general public.
“Ethics are only a small part of the larger picture. After all, you’re not going to get very far if you are an honest person but don’t possess the knowledge needed in order to draw up a notarial deed properly. So it is vital that any potential notary possesses both of these qualities and that the PP INI thus discusses these issues with the various public and private universities which are currently offering master’s degree programs for notaries,” asserted Mrs. Harkrisnowo.
Miftachul Machsun, a senior notary from Surabaya who was also present at the discussion event, also ventured an opinion on this issue, asserting that the main obstacle to be faced by notaries during the AEC era was not competition from foreign professionals, but instead the issue of their readiness to deal with and resolve legal issues of an increasingly complex nature which are brought to them by potential clients.
However, Mr. Machsun also affirmed that the AEC offered significant opportunities, such as the liberalization of market access in line with the growth of various industrial sectors. One issue deemed to be of particular interest is the securing of legal certainty and protection through the issuing of authentic notarial deeds, which will present a major opportunity for the country’s notaries, provided that they are in possession of the proper qualifications, knowledge, skill sets, and standards of ethical behavior.
Notaries must be willing to master all aspects of the laws which are of relevance to their various duties and responsibilities, specifically as they relate to the substance of any agreements which are to be incorporated into a given notarial deed (e.g. issues relating to civil law, trade law, and agrarian law). Moreover, notaries should also master formal aspects of civil law, as authentic notarial deeds drawn up by notaries are often used as evidence during trial proceedings.
“Notaries must understand the impact that sloppily drawn up notarial deeds can have, as it is ultimately the notaries themselves that will have to shoulder responsibility for any mistakes. Indeed, mistakes made by notaries constitute unlawful acts, so it is essential that notaries are extremely thorough [in the performance of their duties],” Mr. Machsun asserted.
From a slightly different perspective, the ultimate issue for Indonesian notaries is the absence of a uniform set of national, professional standards. PP INI have already formulated a draft set of professional standards, however these have yet to be finalized. Currently, the provisions set out in Law No. 2 of 2014on the Amendment to Law No. 30 of 2004on the Notary Profession (Notary Law), as well as the Code of Ethics for Notaries, the Articles of Association (Anggaran Dasar) and the Memorandum of Association (Anggaran Rumah Tangga) of the INI already constitute a set of professional standards, however they have yet to be harmonized under a single framework.
Commenting on this thorny issue, Adrian Djuaini, former PP INI Chair from 2009 to 2012 and from 2013 to 2016, admitted that a uniform set of professional standards had yet to be finalized, but also claimed that a draft set of professional standards had been drawn up by his staff last year.
“The concept has already been decided upon and is currently being formulated and finalized. Unfortunately though, it is proving quite difficult to finalize a unified set of professional standards for the profession, despite the fact that some matters are already regulated under the Notary Law,” Mr. Djuaini concluded.
(rfs/sp)
Marcell Sihombing, Nando Narendra
A seminar entitled Notary Readiniess and Professional Competency Standards: AEC Era Opportunities and Challenges. Photo by: NNP
The effective implementation of the ASEAN Economic Community (AEC) in 2015, means that eight Mutual Recognition Agreements (MRA) agreed by ASEAN member countries are now in force. These agreements facilitate the opening up of a number of professions (engineering services, nursing services, architectural services, and so forth). This effectively means that the MRAs in question allow professionals or skilled laborers working across the eight sectors covered to set up shop in any ASEAN member country of their choice, so long as they are in possession of the proper qualifications for the job and adhere to the various standards agreed by ASEAN member states.
At present, the notary profession is not covered by any of the above eight professional services which have been incorporated into the new MRAs. However, there’s no guarantee that the notary profession will not also be liberalized under a future MRA. This particular concern was raised during a recent discussion event entitled Notary Readiness and Professional Competency Standards: AEC Era Opportunities and Challenges. The event took place during the 22nd Indonesian Notary Association Congress, which was held in Palembang on Friday, 20 May 2016.
During the discussion, Harkristuti Harkrisnowo, a Criminal Law Professor at Universitas Indonesia, asserted that notaries would see an exponential increase in the number of foreign clients working to acquire notarial deeds as the AEC became established. Mrs. Harkrisnowo also reminded the assembled delegates that notaries would need to overcome a number of major hurdles in order to be able to compete in any free-market of notaries introduced under the auspices of the AEC at some point in the near future. By way of example, Mrs. Harkrisnowo pointed to the liberalization of the legal profession in the European Union (EU) through the adoption of European Union Directive No.25/36/EC on Reciprocal Recognition and Implementation of Free Movement of Legal Services and Legal Profession.
“Taking the EU’s liberalization of the free movement of lawyers and the provision of legal services [within its territory] as an example, it may well be possible that another MRA will be drawn up in the future [which liberalizes the notary profession], which is why Indonesian notaries must take anticipatory steps in order to prepare themselves,” asserted Mrs. Harkrisnowo.
During her address, Mrs. Harkrisnowo highlighted a number of essential skills which she claims must be mastered by Indonesian notaries in order that they are able to cope effectively with the open borders ushered in by the AEC. Firstly, the ability to speak English competently is seen as essential in order that notaries are able to attract and communicate effectively with potential foreign clients.
Secondly, notaries should also be well-versed in investment law, as the inauguration of the AEC era should in time lead to a significant increase in the amount of foreign direct investment (FDI) in Indonesia. Knowledge of capital-exchange market law, trade law, and similar laws are thus viewed as crucial.
“Notaries can no longer focus their energies solely on the drawing up of notarial deeds [for clients] and must further improve their skill sets. Remember, Europe has already opened up its legal system. Proper preparation and anticipation are therefore essential and the traditional mantra of ‘business as usual’ no longer applies,” claimed Mrs. Harkrisnowo.
Thirdly, notaries are also being urged to improve their general competency, which is ultimately the responsibility of the Central Board of the Indonesian Notary Association (PP INI). By way of example, Mrs. Harkrisnowo recalled her time as Director General of General Law Administration at the Ministry of Law and Human Rights and related how she would often receive widely differing reports regarding the general competency of notaries hailing from many different regions across the country.
As a result of this formative professional experience, Mrs. Harkrisnowo asserted that possession of a master’s degree was no longer sufficient for professionals working in the notary profession. Instead, she suggested that aspiring professional notaries should first undergo a mandatory two-year management training program, as well as take an additional special professional notary course, in the same way that aspiring lawyers are required to take a mandatory Special Professional Lawyers Course (Pendidikan Khusus Profesi Advokat - PKPA). Moreover, Mrs. Harkrisnowo also believes that candidates should pass several tests, including a code of ethics test as well as a professional competency test, before they can finally obtain official notary status and are allowed to offer notarial services to the general public.
“Ethics are only a small part of the larger picture. After all, you’re not going to get very far if you are an honest person but don’t possess the knowledge needed in order to draw up a notarial deed properly. So it is vital that any potential notary possesses both of these qualities and that the PP INI thus discusses these issues with the various public and private universities which are currently offering master’s degree programs for notaries,” asserted Mrs. Harkrisnowo.
Miftachul Machsun, a senior notary from Surabaya who was also present at the discussion event, also ventured an opinion on this issue, asserting that the main obstacle to be faced by notaries during the AEC era was not competition from foreign professionals, but instead the issue of their readiness to deal with and resolve legal issues of an increasingly complex nature which are brought to them by potential clients.
However, Mr. Machsun also affirmed that the AEC offered significant opportunities, such as the liberalization of market access in line with the growth of various industrial sectors. One issue deemed to be of particular interest is the securing of legal certainty and protection through the issuing of authentic notarial deeds, which will present a major opportunity for the country’s notaries, provided that they are in possession of the proper qualifications, knowledge, skill sets, and standards of ethical behavior.
Notaries must be willing to master all aspects of the laws which are of relevance to their various duties and responsibilities, specifically as they relate to the substance of any agreements which are to be incorporated into a given notarial deed (e.g. issues relating to civil law, trade law, and agrarian law). Moreover, notaries should also master formal aspects of civil law, as authentic notarial deeds drawn up by notaries are often used as evidence during trial proceedings.
“Notaries must understand the impact that sloppily drawn up notarial deeds can have, as it is ultimately the notaries themselves that will have to shoulder responsibility for any mistakes. Indeed, mistakes made by notaries constitute unlawful acts, so it is essential that notaries are extremely thorough [in the performance of their duties],” Mr. Machsun asserted.
From a slightly different perspective, the ultimate issue for Indonesian notaries is the absence of a uniform set of national, professional standards. PP INI have already formulated a draft set of professional standards, however these have yet to be finalized. Currently, the provisions set out in Law No. 2 of 2014on the Amendment to Law No. 30 of 2004on the Notary Profession (Notary Law), as well as the Code of Ethics for Notaries, the Articles of Association (Anggaran Dasar) and the Memorandum of Association (Anggaran Rumah Tangga) of the INI already constitute a set of professional standards, however they have yet to be harmonized under a single framework.
Commenting on this thorny issue, Adrian Djuaini, former PP INI Chair from 2009 to 2012 and from 2013 to 2016, admitted that a uniform set of professional standards had yet to be finalized, but also claimed that a draft set of professional standards had been drawn up by his staff last year.
“The concept has already been decided upon and is currently being formulated and finalized. Unfortunately though, it is proving quite difficult to finalize a unified set of professional standards for the profession, despite the fact that some matters are already regulated under the Notary Law,” Mr. Djuaini concluded.
(rfs/sp)