26 February 2021
What you need to know
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Following the efforts in improving Indonesia's ease of conducting business, the government is aiming to simplify the processes involved in the legalisation of foreign public documents by adopting the recognised international practice. Therefore, through the issuance of President Regulation No. 2 of 2021 ("Pres Reg 2/2021"), the waiting is finally over, the government of Indonesia finally ratified the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, as adopted under The 1961 Hague Convention ("Apostille Convention"). In which it is noted that Pres Reg 2/2021 has been in force since 5 January 2021.
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Implementation of the Apostille Convention is to eliminate the requirement of the Indonesian embassy's legalisation for the documents produced outside Indonesia to be used in Indonesia, especially for the following types of documents: 1) Documents produced by any authority or officials connected with state courts or tribunals; 2) Administrative documents; 3) Notarial acts; and 4) Officials certificates which are placed on documents, as signed by persons in a private capacity.
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The above shall apply for documents produced among contracting states of the Apostille Convention. Whereas, to date there are approximately 120 contracting states, including Singapore, Australia and Japan which are frequent business players in Indonesia.
What you need to do
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Keep yourself updated on the implementation of the Pres Reg 2/2021 in practice.
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Consult with local counsel if you are uncertain as to the requirement of an apostille for commercial documents.
Rationale of the issuance of Pres Reg 2/2021
Legalisation of documents signed in foreign countries or issued by foreign public officials for use in Indonesia is obviously one of the most cumbersome processes of doing business in Indonesia. Further to the current government regimen's effort in simplifying business in Indonesia, the government issued Pres Reg 2/2021 which abolish the requirement of legalisation for public documents among contracting parties, and replacing legalisation with the use of a one-step process involving the use of apostilles that will be internationally recognised. This process should apply to the contracting states of the Apostille Convention, which to date is approximately 120 contracting states [The World Organisation for Cross-border Co-operation in Civil and Commercial Matters].
Consequence of ratifying the Apostille Convention in Indonesia
Prior to the ratification of Apostille Convention, public documents originating in one country for use in another had to go through a lengthy legalisation process meant to evince that the document is in itself what it is proclaimed to be when issued in its originating country. For documents that are going to be used in Indonesia, the legalisation process may need to go through many steps of bureaucracy including a legalisation process at Indonesian embassies or consulates. To that extent, the Apostille Convention replaces the latter onerous chain of process to legalise such public documents with a simple one-step process.
Such one-step process is performed by a single government entity/agency, designated by the contracting state at the time of ratification, which then certifies the validity of the official signature on the public document, thus constituting the entire process of legalisation. The process of legalisation would then be evinced with the issuance of a certificate usually defined as an "apostille".
Under the Apostille Convention, an apostille is presumed proof of:
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authenticity of the signature on the document;
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the capacity in which the person signing the document has acted; and
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where appropriate, the identity of the seal or stamp that the document bears.
It should be mentioned that the contracting state is required to designate a competent authority that is authorised to issue apostille certificates.
Up to date, Indonesia has yet to designate the said authority, however, it is expected the designation will most likely fall to either the Ministry of Foreign Affairs or the Ministry of Law and Human Rights. To that end, prior to the designation of the competent authority by the government of Indonesia to issue such apostille, Indonesian public documents that are to be utilised abroad must be legalised in each respective government agency and the destination country's embassy and/or consulate.
On the other hand, for public documents issued abroad to be used in Indonesia, the apostille from the relevant country should be enough proof of legalisation. As such government agencies, including courts in Indonesia, may no longer require such foreign public documents to be legalised in embassies and/or consulates if the documents originate from a contracting party to the Apostille Convention.
Scope of Public Documents and Procedures under the Apostille Convention
Article 1 of the Apostille Convention stipulates the various types of documents that can be categorised as public documents, as follows:
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Documents emanating from an authority or an official connected with the courts or tribunals of the state, including those emanating from a public prosecutor, a clerk of a court or a process server;
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Administrative documents;
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Notarial acts; and/or
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Official certificates that are placed on documents signed by persons in a private capacity.
Nevertheless, the abolishment of any requirement of legislation does not apply to 1) documents executed by diplomatic or consular agents and 2) administrative documents dealing directly with commercial or customs operations.
In addition, it is important to mention that in terms of the ratification of the Apostille Convention, Indonesia has issued a declaration in relation to Article 1 of the Apostille Convention stating that Indonesia will exclude documents issued by the prosecutor's office from the scope of public documents as such documents from prosecutor's office (such as summons, indictment, etc) still require legalisation process.
Conclusion
The application and implementation of the Apostille Convention is currently at its earliest stage. At the moment, Indonesia still has not appointed the authority designated to issue an apostille certificate. As such clients may still need to legalise public documents which are issued in Indonesia and utilised outside of Indonesia. In the same train of thought, until the full application of Pres Reg 2/2021, foreign public documents may still be requested to be legalised in order to be utilised in Indonesia.
Therefore in terms of its novel application, we identify below the issues that still need to be resolved by the Indonesian government/public institution:
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On the court process, as there is no clear direction as to how to implement the Apostille Convention, we may see judges and/or public officials still insisting on requesting legalisation of foreign public document (ie. public documents as mentioned under Article 1 of the Apostille Convention, which may entail power of attorney, marriage certificates, documents issued by the courts, etc).
This is due to the application of the Supreme Court No. 3038 K/Pdt/1981, which states that the validity of any power of attorney created overseas should be determined by various formal requirements and should be subject to a process of legalisation undertaken by the relevant local Indonesian Embassy(ies). From our discussion with Court officials, we understand that at the moment, the Indonesian Court indeed still require foreign documents to be legalised if they are to be presented before the Court.
It is hoped the above practice will be changed once there is more familiarity with the implementation of the Pres Reg 2/2021.
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The Apostille Convention does not specifically address the issue of evidence from a foreign origin and how it may be weighted upon the court/panel of judges. This may result in the panel of judges resorting to previous applicable procedures prior to the ratification of the Apostille Convention, which entails the legalisation process conducted by government agencies and embassies or consulates.
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Given the absence of a time frame on when such public document may be attached with an apostille, we may see public documents issued predating the Pres Reg 2/2021 to be potentially legalised in Indonesia by means of the Apostille Convention to be utilised abroad. Nevertheless, such apostille may be subject to the designation of an authority by the Indonesian Government and further regulations that may be issued in order to provide provisions on the technicality of applying the Apostille Convention.
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The Apostille Convention does not address the issue of whether the apostille issued in Indonesia shall be made in Bahasa Indonesia and later translated individually by the bearer of the public document in order to be utilised abroad. The question of translation may also arise as to whether the official translation of the public document needs to also attach the apostille specifically for such translation.
To conclude, we may need to wait until there is a clear understanding on how Pres Reg 2/2021 can be implemented by the various Indonesian government institutions. This is especially the understanding of what constitutes public documents or administrative documents as per idealized under the Apostille Convention. Additionally, it is hoped that the Supreme Court and/or Ministry of Law and Human Rights may issue further technical/procedural guidelines on matters which may not be specifically explained under the Apostille Convention (eg. Treatment of the Apostille convention towards evidence brought before the court, power of attorney affidavit made abroad, court documents, etc). The hope is that with the ratification of the Apostille Convention, there would be a simpler process of utilisation of Indonesian documents abroad and vice versa. However before such understanding is reached, the previous legalisation process may still need to be upheld to avoid any unnecessary issue in utilising foreign documents in Indonesia and Indonesian documents abroad.
For further information, please contact:
Prawidha Murti, Partner, Ashurst
prawidha.murti@ashurst.com
