JurnalPost.com -- Amid the wave of digital transformation sweeping through various public and private sectors in Indonesia, the world of notaries remains confronted with a monumental contradiction: the ever-growing stacks of paper archives.
As public officials authorized by the state to create authentic evidence with full evidentiary power under the provisions of Article 1868 and Article 1870 of the Civil Code (KUHPerdata), notaries bear a significant historical and administrative responsibility as mandated by Article 16 paragraph (1) letter b of Law Number 2 of 2014 concerning the Office of Notary (UUJN).
The obligation to draft every deed in the form of a minute and store it meticulously as part of the Notarial Protocol, which serves as a state archive, now faces serious challenges.
Conventional storage mechanisms are reaching their capacity limits due to space crises in notary offices and the Regional Supervisory Board (MPD). Furthermore, physical archives are vulnerable to decay due to age, natural disasters, and fire.
When the concept of Cyber Notary is promoted as a solution to improve the efficiency of legal services, the notarial world is instead faced with a seriouslegal deadlock.
The good intention to digitize is clashing with positive law provisions that have not been fully synchronized.
Regulatory Clashes in the Digitization of Notarial Protocols
Digital transformation in Indonesia has generally gained a legal foundation through Law Number 19 of 2016 in conjunction with Law Number 1 of 2024 concerning Electronic Information and Transactions (UU ITE).
Article 5 paragraph (1) of the ITE Law explicitly recognizes electronic documents as valid legal evidence. However, Article 5 paragraph (4) letter b provides an exception for documents that, by law, must be made in the form of a notarial deed.
This provision creates an issue that can be viewed as avacuum of norm, because the Law on the Office of Notary as lex specialis still relies on the mechanism of storing deed minutes physically, without specific regulations providing formal juridical recognition for the existence of e-minutes.
In such conditions, the act ofscanningor digitizing documents as data backups exists in a zone of legal uncertainty.
This issue not only impacts notaries as public officials but also potentially affects the civil legal protection of the public, as the legal standing of e-minutes can be challenged in court proceedings.
Therefore, the reformulation of regulations regarding the storage of deed minutes through electronic systems is aconditio sine qua nonto maintain the standing and dignity of authentic deeds in the digital era.
If examined based on positive law, the regulations regarding this issue include several important provisions.
First, the Civil Code (KUHPerdata), specifically Article 1868 regarding authentic deeds, which relates to full evidentiary power (volledig bewijskracht) and binding evidentiary power (bindende bewijskracht).
Second, the Law on the Office of Notary (UUJN), specifically Article 15 paragraph (1) and Article 16 paragraph (1) letter b, which regulates the authority of notaries and the obligation to store deed minutes as part of the Notarial Protocol, with legal accountability consequences that can include administrative or civil aspects.
Third, the Electronic Information and Transactions (ITE) Law, including the exception provision for notarial deeds as stated in Article 5 paragraph (4) letter b.
Additionally, there are the Archives Law and the Personal Data Protection Law (UU PDP), which provide a framework for national archival governance and the obligation to secure personal data.
This condition reveals a tension between the formal provisions of the UUJN, which are still oriented toward physical document storage, and the provisions of the ITE Law, which exclude notarial deeds from general electronic document recognition.
Consequently, the implementation of Cyber Notary cannot yet run optimally and still faces various legal risks.
Juridical Analysis through Three Legal Theory Perspectives
To academically unravel the complexity of this issue, a juridical analysis is required through three legal theory perspectives: the Rule of Law Theory, the Legal Liability Theory, and the Legal Certainty Theory.
1. The Rule of Law Theory
The first perspective uses the Rule of Law Theory through the The Rule of Law thought of A.V. Dicey and the Rechtsstaat concept of Julius Stahl.
Both schools of thought emphasize the importance of the supremacy of law, equality before the law, and the administration of government based on law (wetmatigheid van bestuur).
In the context of notarial practice, this theory demands that a notary's actions in managing vital state archives in the form of Notarial Protocols not be based solely on technological innovation without a clear basis of authority.
Digitization must have legitimacy based on statutory regulations so that the principle of formal legality is maintained.
Thus, the state, through the House of Representatives (DPR) and the government, needs to provide a valid legal basis to ensure the protection of the public's civil rights in the digital notarial system.
2. The Legal Liability Theory
The second perspective uses the Legal Liability Theory from Hans Kelsen through his thoughts ontheory of legal liability.
In that theory, legal liability relates to the consequences or sanctions for violations of norms, including discussions on individual responsibility, fault (fault), and strict liability (strict liability).
This theory is relevant for analyzing theliability gapthat can arise when the storage of notarial documents digitally involves third parties, such as Electronic System Providers (PSE).
The issue becomes more complex if there is a data leak, hacking, server damage, or electronic storage system disruption.
In such circumstances, the question arises as to who must be held responsible for the losses incurred.
Therefore, positive law needs to provide clear and proportional liability boundaries between a notary's personal fault (fautes personnelles) due to administrative negligence and digital service system failures (fautes de service) managed through centralized infrastructure.
Separating these responsibilities is important so that notaries do not face disproportionate liability risks for technological disruptions beyond their control.
3. The Legal Certainty Theory
The third perspective uses the Legal Certainty Theory from Gustav Radbruch, which places justice, utility, and legal certainty as important values in law.
In this perspective, legal regulations ideally have clear, consistent, and non-contradictory formulations, and can provide certainty regarding the legal consequences of an action.
The current regulation of deed minute storage is considered to face structural issues due to the lack of synchronization between norms in Article 5 paragraph (4) letter b of the ITE Law and Article 16 paragraph (1) letter b of the UUJN.
This lack of synchronization has the potential to cause a legal deadlock in the implementation of electronic deed minute storage.
The public, notaries, and law enforcement officials may be faced with uncertainty regarding the evidentiary power of e-minutes if such documents are used in court proceedings.
The fundamental question is whether e-minutes can obtain recognition as authentic documents with evidentiary power equivalent to physical minutes or if they are only treated as ordinary electronic copies.
This ambiguity shows the need for regulatory updates so that digital transformation in notarial services has a strong legal basis.
The Urgency of Reconstructing Deed Minute Storage Regulations
Based on the background, review of positive law, and the aforementioned juridical analysis, there are three main conclusions that can be drawn.
First, notarial regulation currently faces a legal impasse because the regulation regarding e-minutes has not been specifically accommodated in the Law on the Office of Notary.
Yet, the Notarial Protocol as a state archive requires a storage mechanism that is secure, sustainable, and possesses formal legal legitimacy.
Second, one of the fundamental weaknesses lies in the regulation of Article 16 paragraph (1) letter b of the UUJN, which has not provided a specific operational framework regarding the media conversion of deed minutes, cybersecurity standards, or the division of legal liability in electronic storage.
Third, there is an urgency to reconstruct regulations through a revision of the Law on the Office of Notary to provide clear legal recognition for the existence of e-minutes of deeds.
This reconstruction is necessary so that technological development does not outpace the readiness of the legal system that governs it.
Recommendations for Updating Digital Notarial Law
As a concrete solution from the perspective of the law as it should be (ius constituendum), a revision is needed for Article 16 paragraph (1) letter b of the Law on the Office of Notary.
This revision can be carried out by adding a new norm that provides recognition for electronic deed minutes, with the proposed formulation as follows:
"In carrying out their duties, a Notary is required to create deeds in the form of deed minutes and e-deed minutes and store them as part of the Notarial Protocol."
This proposed norm is expected to serve as the basis for developing an electronic Notarial Protocol storage system that possesses formal legal power.
In addition to regulatory updates, it is also necessary to build an ecosystem for a National e-Notary Platform System under the coordination of the ministry responsible for legal affairs.
The system needs to be developed based on seven main principles: authenticity, data integrity, cybersecurity, confidentiality, availability, traceability through anaudit trail, and archival sustainability.
These seven principles are an important foundation to ensure that the digitization of Notarial Protocols not only provides administrative efficiency but also guarantees document security and the protection of the parties' rights.
With progressive and measured regulatory update steps, the notarial profession in Indonesia is expected to be able to adapt to technological developments without ignoring the principles of prudence, document authenticity, and legal responsibility.
Ultimately, digital transformation in the notarial world must be able to bridge the need for technological innovation with the demands of legal certainty.
Through a clear regulatory framework and a reliable electronic storage system, the notary profession is expected to continue to maintain the authenticity of legal documents, protect the interests of the public, and stand firmly on the foundation of legal certainty in the digital era.
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