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, on January, 5th 2021, President Regulation No. 2 of 2021 (“President Regulation 2/2021”) came into force to ratify the Convention Abolishing the Requirement of Legalization for Foreign Public Documents as adopted by The Hague Conference on Private International Law on October, 5th 1961 (“Apostille Convention”). By the ratification of the Apostille Convention, Indonesia has officially become one of the contracting state parties to the Apostille Convention, thus officially abolished the mandatory legalization in the utilization of certain public documents that originate from or which will be used within another state party.
The Simplified Procedure: Apostille Certificate
Before the ratification of the Apostille Convention, the public documents that are issued or signed abroad is required to get the legalization which consists of the followings: the notarization of the document, the legalization by Ministry of Law of the country in which the document is issued, the legalization from the Ministry of Foreign Affairs of the country in which the document is issued, and the legalization from the Indonesia embassy in the country where the document will be signed. Now, with the ratification of the Convention, the legalization procedure has been abolished and is now simplified by requiring the state party to instead issue the apostille certification.
Scope of Public Documents
Article 1 of Apostille Convention regulates specifically that the Apostille Convention only apply to public documents, however, the Apostille Convention also limits the scope of public documents and exclude the following documents:
- Documents that are executed by diplomatic or consular agents; or
- Administrative documents that deal directly with commercial or customs operations.
It is also important to note 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 excludes the documents issued by the Indonesia’s prosecutor office from the scope of public documents whose requirements of legalization have been abolished under the Apostille Convention.
Details of the list of public documents which the Apostille Certificate will be applicable to, can be seen on the Ministry of Law and Human Rights decree number M.HH-01.AH.03.01 of 2022.
Procedure to request for Apostille Certificate in Indonesia
As a follow-up to President Regulation 2/2021, the government issued an implementing regulation in the form of the Ministry of Law and Human Rights Regulation Number 6 of 2022 regarding Apostille Legalization Services for Public Documents (“MoLHR 6/2022”). This regulation states that an apostille certificate shall be issued by the competent authority which had been appointed by the state. Indonesia itself has appointed the Ministry of Law and Human Rights of the Republic of Indonesia to be the competent authority which has the capacity to issue the apostille certificate as requested by the Applicant or his/her representative. In Indonesia, to request for the Apostille Certificate, Applicant may submit electronically by filing the form provided by the Ministry of Law and Human Rights through the website https://apostille.ahu.go.id/.
On a side note, it is also important for us to remember one of the principle of international law, pacta sunt servanda which states that international convention is only bound to the contracting state party. Therefore, we shall be reminded that the ratification of the Apostille Convention does not deem the various legalization processes set out under Indonesia’s existing regulatory frameworks as inapplicable, as the aforementioned legalization processes may still be applicable in relation to the utilization of public documents issued or signed within the non-contracting state parties.
ConclusionWhile the MoLHR 6/2022 as the implementing regulation of President Regulation 2/2021 is clear, a gap between the written regulation and implementation in practice during the initial period may likely occur between government institutions, for instance, as of publication of this legal knowledge the Supreme Court and/or Ministry of Law and Human Rights is yet issuing technical/procedural guidelines on matters which may not be explained explicitly under the Apostille Convention such as the procedure/system or treatment of the convention towards evidence brought before the court, power of attorney and affidavit made abroad, etc.