ANALYSIS
OF VIOLATIONS OF THE OFFICE OF A NOTARY AS AN ADVOCATE BASED ON A SHARIA
PERSPECTIVE
Muhammad Adriansyah
1, Muhammad Jefri Kurniawan2
Universitas Islam IndonesiaYogyakarta
m.adriansyah2705@gmail.com1, mjkurniawan158@gmail.com2
|
Keywords |
Abstract |
|
Notary; Multiple Positions; Sharia |
A notary is a public
official who has the authority to make authentic deeds. In Law Number 2 of
2014 concerning Amendments to Law Number 30 of 2004 concerning the Position
of Notaries, article 17 paragraph (1) states that Notaries are prohibited
from holding the same position as Advocates. However, there are also cases of
notaries who hold the same position as advocates. This research examines
further the violations against Notaries who hold concurrent positions as
advocates based on a sharia perspective. This research uses normative
juridical research methods. The data used in this research is secondary data.
Secondary data includes primary legal materials and secondary legal
materials. In this research, the author uses qualitative data analysis to
produce descriptive data. Based on the research results, Notaries may not
violate the code of ethics that has been established in their position.
Because, if a Notary violates the professional code of ethics, it means that
the Notary has violated the oath which in Islam is called the karate oath.
Violations of the Code of Ethics for Notaries with Multiple Positions are
prohibited in the view of Islamic law to avoid conflicts of interest or
conflicts of interest. In Islam it is also said that every profession must be
carried out diligently (Putin). The prohibition on holding multiple positions
for Notaries is also in line with independence (al-istiqlaliyah)
in the legal field. This independence can only be realized in other
professions within the notary environment. |
Corresponding Author: Muhammad Adriansyah
E-mail: m.adriansyah2705@gmail.com
INTRODUCTION
The Republic of
Indonesia as a legal state based on Pancasila and the 1945 Constitution of the
Republic of Indonesia guarantees certainty, order, and legal protection for
every citizen (Harisman, 2021)
. To guarantee
legal certainty, order, and protection, authentic written evidence is needed
regarding actions, agreements, stipulations, and legal events made in the
presence of or by authorized officials (Darus & Luthfan, 2017). Article 1 number 1 in Law Number
2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning Notary
Services (from now on referred to as UUJN) states that a Notary is an official
who has the authority to make authentic deeds and has other authorities as
intended in the lawthis law or based on other laws (KP Putri, 2016).
The notary
profession is a noble profession because the notary profession is very closely
related to social or humanitarian functions (Prbawa, 2017). Authentic deeds, which are the
main product of a notary, can be a source of legal force for material status,
as well as a person's rights and obligations (Qasthari et al., 2019). Therefore, in carrying out the
professional position of a Notary, you must comply with the applicable
provisions (NM et al., 2021).
The Notary Code
of Ethics as a supporter of UUJN must be adhered to by all members of the
Indonesian Notary Association who carry out their duties and positions as
Notaries. The Notary Code of Ethics contains matters related to the notary
profession, obligations, prohibitions, sanctions, and so on. To carry out
supervision is carried out by the Notary Supervisory Committee (Mardiyah et al., 2017).
In carrying out
their duties, the position of the code of ethics for Notaries is very
important, not only because Notaries are a profession, so they need to be
regulated by a code of ethics, but also because the nature and essence of
Notaries' work is very legalization-oriented so that it can become the main
legal foundation regarding status. property, rights and obligations of a client
who uses the services of the Notary (Sagala, 2016).
In practice, as
time goes by and technological developments become increasingly rapid,
opportunities open up for Notaries to compete to get as many clients as
possible (Ardiansyah & Kurniawan, 2023). This creates an opportunity for
several Notaries to be willing to hold concurrent positions as Advocates. Even
though this violates Article 17 paragraph (1) letter e UUJN, which states that
Notaries are prohibited from holding the same position as Advocates (Judge, 2022). The case of having multiple
positions was carried out by a notary in Lampung with the initials CA, who was
later found guilty through the Decision of the Central Supervisory Council of
Notaries of the Republic of Indonesia No. 06/B/MPPN/X/2018 dated November 9,
2018.
Therefore,
based on this background, the author conducted research with the title Analysis
of Violations in Notary's Office Case Study of the Decision of the Central
Notary Supervisory Council Number: 06/B/Mppn/X/2018
Date November 9, 2018 Based on Perfective Sharia, where this research is to
find out how the view of Islamic law on the ethics of notary office, as well as
the Islamic view on violations of the notary code of ethics in decision Number:
06/B/MPPN/X/2018.
RESEARCH METHODS
In this writing, the author uses a
normative juridical research method. This type of research is also known as
literature study, which refers to legal norms and statutory regulations. The
type of data used in this research is secondary data. Secondary data includes
primary legal materials and secondary legal materials. The primary material
used is statutory regulations, while the secondary material used is literature
related to this research. In writing this research, the author used qualitative
data analysis, which produces descriptive data.
RESULTS AND DISCUSSION
1. Notary
Public Ethics from a Sharia Perspective
A notary is a person who is trusted by the public;
therefore, his position must be upheld. In carrying out his office, a Notary
must comply with all moral rules that have lived and developed in society.
Apart from the responsibilities of professional ethics, integrity and good
morals are important requirements that a Notary must have (Wibowo et al., 2022).
The Notary Code of Ethics is all the moral rules
determined by the Indonesian Notary Association based on the decision of the
association's congress and determined by and regulated in the laws and
regulations governing this matter, which apply to and must be obeyed by each
and all members of the association and all people who carry out their official
duties as Notaries, including Temporary Notary Officials, Substitute Notaries,
and Special Substitute Notaries. This Notary's Code of Ethics has a very important
role/function for notaries, namely as a basis, benchmark, reference, and
guideline in every action, attitude, and behavior in carrying out their duties
and position as a Notary (Ardiansyah & Kurniawan, 2023).
Based on Article 15 UUJN, the authority of a Notary
that must be exercised in carrying out his/her office is outlined, namely: The
Notary has the authority to make authentic deeds regarding all deeds,
agreements, and provisions that are required by statutory regulations and that
are desired by interested parties to be stated in authentic deeds, guaranteeing
certainty of Date. Making deeds, keeping deeds, providing grosses, copies, and
quotations of deeds, all of this as long as the making of the deeds is not also
assigned or excluded to other officials or other people as determined by law (Ma'ruf & Wijaya, 2015).
Notarial obligations are something that the Notary
must carry out; if not carried out or violated, sanctions will be imposed on
the Notary. Notary obligations are stated in Article 16 paragraph (1) letters a
to k of the Notary Position Law, which, if violated, will be subject to
sanctions as stated in Article 84 (Rizqiyah, 2021).
Many notary ethics codes in Islam align with Islamic
teachings (Pradiptasari, 2017). In Surah Al-Baqarah, it is told
about the study of the basics, benefits, and importance of recording and
recording in every financial transaction (especially regarding debts and
receivables) (Abidin, 2020). There is a relationship between
the contents of Al Baqarah Verse 282 and the notary profession. There are
similarities between the Notary and the writing in Surah Al Baqarah Verse 282 (Aldiano et al., 2021). In Surah Al Baqarah verse 282,
it is written that in carrying out his work, the writer is bound by the
procedures and ethics that have been determined by Allah, namely that they must
be honest, impartial and not harm the parties, so also with the notary
profession which is bound by the notary position law and the notary code of
ethics (Ardiansyah & Kurniawan, 2023).
Actions prohibited for a writer in Surah Al Baqarah
Verse 282 include being prohibited from writing unfairly and impartially and
writing that does not comply with the rules of writing (Sifdiatul, 2023). The author should be willing to
write it as Allah taught him. Let him not reduce the debt in the slightest; Let
not the witnesses be reluctant (to give testimony) when they are summoned; Do
not get tired of writing down debts, whether small or large, until the deadline
for paying them; Do not make things difficult for the writer and the witness;
and Do not you (witnesses) conceal your testimony. In fact, from this
description, most of the contents of Surah Al Baqarah are contained in the
Indonesian Notary Code of Ethics (Ardiansyah & Kurniawan, 2023).
Furthermore, the role of a notary from an Islamic
law perspective is to carry out the authority in his position; he must be fair
and honest. As in the Al-Qur'an surah an-Nisa verse
59, which means:
O you who believe, obey Allah and obey His Messenger,
and the ulil amri among
you. Then, if you have different opinions about something, then return it to
Allah (the Qur'an) and the Messenger (sunnah) if you truly believe in Allah and
the Last Day. That is more important (for you) and the consequences are better.
"
The verse above contains meanings, among others:
1)
The command to obey Allah means the command to carry
out the laws contained in the Koran
2)
The command to obey the apostle means the order to
practice what the apostle said in his sunnah
3)
The order to obey until amri
means the order to practice the law found based on ijma
4)
The command to return something permitted by law to
Allah and the Messenger. This means the order to practice the law found through
qiyas, which is the result of ijma (ijtihad ulama).
In Islam, in carrying out his position, a Notary is
not permitted to violate the established code of ethics (Ardiansyah & Kurniawan, 2023). This is because, according to
the Islamic religion, if a notary violates the professional code of ethics, it
means that the Notary is violating an oath, which in the Islamic religion is
called a karat oath.
According to the rules and law, it has been stated
clearly and firmly that there are several professions where notaries are not
permitted to carry out these professions simultaneously while serving as a
notary profession. The prohibited professions are:
a)
Concurrently, as a civil servant,
b)
Concurrently serving as a State official;
c)
Concurrently serving as an advocate;
d)
Holding a position as leader or employee of a
State-owned enterprise, regional-owned enterprise, or private enterprise;
e)
Concurrently serving as a land deed official and
class II auction official outside the Notary's place of residence;
f)
Become a substitute notary or
g)
We are carrying out other work contrary to religious
norms, morality, or propriety, which could affect the honor and dignity of the
Notary's position.
Based on UUJN Article 17 Paragraph (2), Notaries who
are proven to have violated these rules will be subject to sanctions in the
form of:
a.
Written warning;
b.
Temporary suspension
c.
Dismissal with respect; or
d.
Dishonorable discharge.
2. Views on
violations of the Notary Code of Ethics in decision Number: 06/B/MPPN/X/2018
The position is an entrustment and gift from God to certain people. The
position is close to importance, leadership, power, fame, honor, and wealth.
Therefore, it is unsurprising that most people compete for the desired
position. They can compete in many ways and justify any means (Ardiansyah & Kurniawan, 2023).
A position that is similar to leadership is a very noble task. The
position (leadership) serves as a substitute for prophethood in protecting
religion and regulating the welfare of life. The intima of the ulama has agreed
that the law must appoint someone who has credibility in carrying out
leadership duties (positions) among Muslims (Ardiansyah & Kurniawan, 2023). The position can also be
considered a test because, with this position, you will be asked to take
responsibility in this world and the afterlife. As stated in the hadith of the
Prophet Muhammad SAW, which means:
" From Abdullah, Rasulullah
SAW, said: Know that each of you is a leader, and each of you will be held
accountable for those he leads. The ruler who leads the people will be held
accountable for those he leads. The head of the family is the leader of his
household and he is held accountable for his family. The wife is the leader of
her husband's home as well as her children, and she will be held accountable to
them. And the servant is the leader in matters of his master's property and
will be held accountable for his duties. Know that each of you is a leader and
each of you will be held accountable for what he leads.
Responsibility as a leader takes work. The higher a person's position,
the greater their responsibility. The more people he leads, the greater the
responsibility he has to bear. All details regarding his leadership will be
asked (Voegtlin, 2016). Therefore, positions will be
based on their responsibilities. However, this high risk encourages certain
people to hold that position. They will do everything possible to make their
wishes come true.
In this case it is known that the case started from a land dispute
between PTPN VII and PT Bumi Madu
Mandiri (BMM) in 2012. Chairman of SPPN VII Muhammad Baasith said that when the case was being processed
legally, Chairul Anom acted
as PT BMM's attorney. Due to this incident, SPPN VII filed a multi-level
lawsuit against the Notary Regional Supervisory Council (MPDN) of Bandar
Lampung City. The long process up to the Central Notary Supervisory Council
(MPNN) is supervised by SPPN VII. SPPN VII sees that the alleged violations
committed by Chairul Anom
have tarnished the honor of the noble profession of Notary (official mobile)
for actions, not by the provisions of Article 15, Article 16, and Article 17 of
the Notary Position Law. "Based on the SPPN VII report, the examination
has been followed up in stages by the Regional Supervisory Council of Notaries
(MPDN) of Bandar Lampung City, the Regional Supervisory Council of Notaries
(MPWN) of Lampung Province, and the Central Supervisory Council of Notaries
(MPPN).
It is known that Chairul Anom
has worked as Legal Counsel for PT Bumi Madu Mandiri in civil cases but,
at the same time, is still registered as a Notary. This is very clearly
contrary to Article 15, Article 16, and Article 17 of the Notary Position Law.
This indicates that there is partiality and the working relationship in
question with PT Bumi Madu Mandiri, Chairul Anom is an active notary domiciled in Bandar Lampung City
based on the Decree of the Minister of Justice of the Republic of Indonesia
Number: C-175.HT.03.01 TH.1998 dated September 8 1998, p. This can be seen on
the website of the Lampung Province Regional Office of the Ministry of Law and
Human Rights.
The Central Supervisory Council of Notaries of the Republic of Indonesia
decided that Choirul Anom,
the notary attorney for PT Bumi Madu
Mandiri (BMM), was proven guilty. The decision
followed reports of alleged Law on Notary Positions violations reported by the
Nusantara Plantation Workers Union VII (SPPN VII). This came to the fore in the
Decision of the Central Supervisory Council of Notaries of the Republic of
Indonesia No. 06/B/MPPN/X/2018 dated November 9, 2018.
In the dictum of the Decree on the Temporary Dismissal of Chairul Anom, SH, he also decided
to block the account on the online Directorate General of AHU system
(www.ahu.go.id) and hand over the protocol to Notary DR. Tjempaka,
SH, MH, MKn., as Protocol Holder for Notary Chairul Anom, SH, while
undergoing the temporary dismissal sanction.
Based on the facts above, it is clear that the authority of the Regional
Supervisory Council in implementing sanctions is real and not only at the
normative level of legislation but has been implemented in order to guide
notaries who violate to maintain the dignity of the notarial profession ( Ardiansyah & Kurniawan, 2023). The logical consequence is that
the Regional Supervisory Council, in carrying out one of its authorities,
including examining violations of the dual position of a notary, can be carried
out independently, professionally, and impartially and have real consequences
in imposing sanctions, thereby fulfilling the public's expectations and trust
in the performance of the supervisory council (Almuslimah et al., 2021 ).
Article 17, paragraph 1, letter e, states that Notaries are prohibited
from holding the same position as advocates (Kusuma, 2019). This is in line with the view of
Islamic law. According to Islamic law, the prohibition on holding multiple
positions is carried out to avoid the following things: firstly, so that there
is no conflict of interest. Then, in the Islamic religion, it is also said that
every profession must be carried out diligently (Putin). Then, in the view of
Islamic law, it is also prohibited to do things that reduce a client's rights,
including not providing services due to leaving the office. The prohibition on
holding multiple positions for notaries also aligns with independence (al-istiqlaliyah) in the legal field. One form of independence
is not serving in other professions outside of Notary. Apart from that, this is
also in line with the principle of professionalism, which in the Sharia concept
is called al-qowiy (Ardiansyah & Kurniawan, 2023).
CONCLUSION
In overcoming the problems identified in
the case study, concrete steps need to be taken to strengthen the integrity and
ethics of the notary profession. First, strengthening professional ethics
training is needed which includes an in-depth understanding of applicable
ethical codes, especially in the context of Islamic law. This training program
can involve religious authorities to provide specific direction and emphasize
the prohibition of holding several positions simultaneously in the perspective
of kifarat oath and al-Cowley principles. In
addition, the implementation of strict internal monitoring mechanisms,
including regular audits by authorized institutions, needs to be implemented to
monitor notaries' compliance with ethical and legal standards.
Second, strict enforcement of sanctions
needs to be implemented as a preventive and corrective measure. Sanctions
appropriate to ethical violations, such as temporary or permanent suspension of
notarial practice, must be applied consistently. Transparency in enforcing
sanctions is also very important to set an example for other notaries and
encourage compliance with the code of ethics. In addition, the establishment of
an independent institution or ethics committee consisting of legal experts and
religious experts can provide an objective view in assessing complex cases and
provide advice on appropriate resolution steps. With this approach, it is hoped
that we can build a strong foundation to prevent violations of notary ethics
and maintain the integrity of the profession in the future.
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