On 5 October 1961, the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (“Apostille Convention”) has been concluded. Apostille Convention aims to abolish the chain of legalization process of the public document and simplifies the process through the issuance of an authentication certificate.1
In line with the principle of the newly issued Job Creation Law, Indonesia strives to increase the public service and support for the easiness in doing business by acceding to the Apostille Convention. The Apostille Convention is acceded under the Presidential Regulation Number 2 of 2021 on the Accession of the Convention Abolishing The Requirement of Legalization for Foreign Public Documents (“PR No. 2/2021”) on 5 January 2021.
This article discusses briefly (i) the Apostille, (ii) the types of document which are considered as public documents under the Apostille Convention, (iii) the designated authority to issue the Apostille Certificate, and (iv) the differences of the process before and after the Apostille Convention.
Apostille: The Only Formality Required
The Apostille Convention simplifies the chain of legalization process toward the public document.2 The only formality required in order to certify (i) the authenticity of signature, (ii) the capacity of the signatory, and (iii) the identity of the seal or stamp which it bears, is by furnishing the public document with a certificate known as “Apostille Certificate” (“Apostille”)3. The Apostille Certificate is issued by the Competent Authority (as explained below) upon request from the person who signs the public document or any bearer.
In general, Apostille Certificate is issued in a paper-based form. It is however also possible that the Apostille Certificate is also be issued in an electronic form (“E-App”). Some Competent Authority in several states allows the E-App to be issued electronically for public documents which are produced electronically.
The issuance of E-App might also be issued by the Competent Authority of Indonesia, since several public documents (eg. land documentation, and NIB) might be issued electronically and the use of electronic signature has been recognized.
First and foremost, it has to be determined what constitutes a public document? As per the Apostille Convention Handbook, the concept of the public document is intended to be interpreted broadly. In essence, any document issued by a person who acts as an authority or in an official capacity (not as private individual) is a public document.4
The Apostille Convention does not provide an exhaustive list of documents that constitute a public document. Nevertheless, it provides some guidelines on the type of documents which are treated as public documents, namely:5
Competent Authority
As we have established earlier, the Apostille Certificate is issued by a competent authority, who serves as a designated authority to perform functions in relation to the Apostille (“Competent Authority”)12. The fundamental functions of the Competent Authority in relation to the Apostille, namely:13
To date, the Competent Authority of Indonesia has not been designated by the Government of Indonesia. The designation of the Competent Authority of Indonesia shall be notified to the Ministry of Foreign Affair of the Netherlands at the time the instrument of accession is deposited14. Any change of the Competent Authority shall also be notified.
Pre v Post Apostille Convention
Prior to the accession of the Apostille Convention, Indonesia distinguishes the process of legalization of public documents depends on the place in which such documents are produced and the place in which such documents will be used, as follows:15
After the accession of the Apostille Convention comes into force, however, the above mentioned legalization process is abolished and simplified by the Apostille.
Please refer to the flowchart below which illustrates the process of the Apostille:
Aftermath
The implementation of the Apostille Convention in Indonesia shall be in force on the sixtieth day after the deposit of the accession instrument in the Ministry of Foreign Affair of the Netherlands. During the deposit, the Government of Indonesia shall also notify who will be the Competent Authority of Indonesia.
First thing to be done by the Government of Indonesia is to designate the Competent Authority. The designation of the Competent Authority needs to consider the vast geographical condition of Indonesia. Therefore, perhaps it is better to designate a Competent Authority in every city in Indonesia in order to give accessibility for the people who live in a remote area.
Furthermore, the implementating regulation of the Apostille Convention shall also be issued by the Government of Indonesia (“Implementing Regulation”). The Implementing Regulation may further emphasize the type of documents which fall under the scope of public document and its exception. It may also stipulate that the court shall admit the validity of public documents executed abroad which has been furnished by the Apostille Certificate.
Kevin Samuel Fridolin Manogari