On 4 January 2021, President Joko Widodo signed Presidential Regulation No. 2 of 2021, which ratified the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (the “Convention”). The Convention is designed to enhance public services and ease of doing business by simplifying the process of legalizing foreign public documents in Indonesia.
Under the Convention, legalization of certain types of foreign documents by a diplomatic or consular official is exempted. The foreign public documents include:
- Documents originating from an authority or official relating to a court or state tribunal, including those from public prosecutors, court clerks or court bailiffs;
- Administrative documents;
- Documents issued by a public notary;
- Official certificate attached to a document signed by an individual in his/her civil authority, such as certificates that records the registration of a document or certain validity period for a document on a certain date and legalization of signatures by officials and notaries.
Meanwhile, the Convention does not apply to the following type of documents:
- Documents signed by a diplomatic or consular official;
- Administrative documents that are related to commercial activities or customs.
Despite being exempted, the certification of signature authenticity of foreign public documents is still required. The Convention provides that each country must appoint its competent authority as substitute of diplomatic or consular official to issue certificate of signature authenticity of foreign public documents.
Previously, Ministry of Foreign Affairs Regulation No. 09/A/KP/XII/2006/01 (“MOFA Regulation No. 09/2006”) provides that each document made overseas and to be used in Indonesia need to be legalized by a diplomatic representative where the documents are originated. In this regard, the Convention changes the authorized party to legalize foreign public documents, namely from diplomatic representative into the competent authority appointed by each member of the Convention. The Convention does not specify on which competent authority should be appointed to perform the legalization of foreign public documents.
Prior to ratification of the Convention, any document issued/executed outside Indonesia is required to be notarized by the public notary and later legalized by the consulate general of Indonesia where the documents are originated in order to be enforced or to be presented as evidence in Indonesia.
Additionally, the Convention also regulates new specific forms of foreign public document legalization. The certificate of authenticity issued by a competent authority appointed by the member of the Convention shall be given the title of “Apostille (Convention de la Haye du 5 octobre 1961)” and it must be written in French in accordance with the Appendix of the Convention.
The Use of Power of Attorney Signed Overseas Before the Court
It is pivotal to understand that the Power of Attorney (“POA”) can be qualified as one of the foreign public documents under the Convention. This understanding has been widely accepted by the Indonesian government. As such, until further regulated otherwise, the legalization of the POA signed overseas by a diplomatic or consular official is exempted, albeit may still need to be apostilled by the competent authority appointed by the country where the POA is signed. It is expected that the Indonesian government will follow it up by issuing a regulation on which the kind of foreign public documents need to be apostilled.
Based on the foregoing, we see that it is possible for the Indonesian judges would take a conservative approach when it comes to the use of foreign POAs before Indonesian courts. Beforehand, the Supreme Court has taken the position that POAs signed overseas must be legalized by Indonesia’s diplomatic representative in the country where the POA is signed.1 In addition, there has been no Supreme Court circular letter guiding the changes of this legalization mechanism.
Although, as a matter of law, a circular letter is not considered as a part of laws and regulations, however, it is frequently applied by judges in examining and adjudicating cases, and it plays an important role in the Indonesian judicial system.