EXPLORING THE NOTARY LIABILITY IN TORTS (An Exclusive Interview with the Chairman of the Indonesian Notary Association of Batam City)1 Triana Dewi Seroja, Nurlaily, Rina Shahriyani Shahrullah, Nur Hadiyati, KwariyonAltison

In practice, it often occurs that a notary is summoned to the 
court on the ground that he/she provides information on the 
deeds or documents containing torts (an act against the law). 
This study questions whether a notary is liablewhen the torts 
occur. This study utilizes a socio-legal research method by 
adopting qualitative juridical data analysis. It found thattorts 
may occur due to 2 (two) factors, namely (1) lack of precaution 
when drafting the deeds, and (2) deliberatelymaking the deeds 
which do not meet the specified conditions. As the results, the 
notary is liable to bear all losses arising from the issuing of the 
deed, including a liability due to a criminal lawsuit. In order to 
prevent torts, a notary mustdisclose all relevant information, 
clarify documents, and have more legal awareness.


INTRODUCTION
In various commercial relations pertaining to banking, land, social activities, the need for written evidence in the form of original documents is necessary to meet a legal certainty, both in economic and social relations at local or national level. 2 Authentifciation constitutes as the most convincing and the most comprehensive evidence which plays an important role in all legal relations in community life. As it is confirmed by Law No. 2 of 2014 concerning the Position of Notary (the Notary Law) under Article 1 number 1 that the Notary is authorized to take legal actions and has other powers as required by this Law or by other Laws. Furthermore, it is emphasized in Article 1 point 7 of the Notary Law that notarial deedsare the authentic deeds made by or for Notary in accordance with the forms and procedures stipulated in this Law.
Notary is a government official who has the authority to create authentic instruments. 3 Making legal documents is legally required to establish security, order, and legal protection. It is also because there isa guarantee of the rights and obligations of the parties and as well as for security, order, and legal protection for both the involved parties and the public at large. 4 The authentic instrument basically contains the official authorization as it is conveyed by the parties. The Notary has the obligation to register those contained in the Notary deed, and the deedmust bewell understood and in accordance with the wishes of all parties in the deed. In this regard, the Notarymust read the deed until it becomes clear to the parties regarding the contents. The parties are free to agree or reject the contents of the deed. If they agree, they sign it. 5 It may seem that the tasks of Notary are quite simple, therefore there is no way of suing the notary.However, in practice, Notaries are often summoned to court even though the notary deed has problems. In addition, even though the Notary carries out his/hertasks in accordance with the Notary's code of honor, one party may conduct awrongful actby using the notary deed either intentionally or unintentionally, for example a fraudulent in giving information for the deed, may disadvantage or cause damages for the other party. 6   in the study, namely, 1) what is the liability of the Notary when he/she conducts wrongful acts (torts) in making deeds?; and 2) What are the efforts made to prevent wrongful acts (torts) committed by Notaries in making deeds?.This study aims to analyze the gap between the legal norms (Das Sollen) and reality (Das Sein) of parties who are prone to experiencing losses due to notarial deeds.

RESEARCH METHODS
This study adopts a socio-legal research which uses secondary data, and it is followed by primary data or field data. Data collection techniques is conducted through document research and interviews. The socio-legal research focuses on the Notary Law by examining its application (Das Sein). 8 The secondary and primary data are analized based on their contents by applying a qualitative approach.

THE LIABILITY OF THE NOTARY WHEN CONDUCTING WRONGFUL ACTS (TORTS) IN THE MAKING OF A NOTARIAL DEED
Profession is a permanent job in a certain field which is based on a special expertise and it is pursued responsibly to earn income. Professions can be based on certain skills and abilities. It becomes a permanent and sustainable profession. The profession aims to earn income and it imposes legal responsibility (liability) on the owner of the profession and the community. 9 Abdul GhofurAnshori explained that "Notary is a legal profession and thus the Notary profession is a noble profession (position). The actions of a Notary can provide a legal basis for a person's property status, rights and obligations. Errors in notarial deeds can lead to deprivation of someone's rights or imposition of obligations on someone". 10 Thus, this profession involves jobs with specific skills that require broad knowledge and liability. It involves the interests of many people and has a professional organization or association. Thus, it is recognized by the public and has a code of ethics. 11 Notary is a profession which is protected by the Notary Law. Legal protection is not only given to the notarial profession, but also to the deeds made by Notaries. Accordingly,if a Notary commits tortin a deed, the loss shall be borne by the Notary since legal protection is also given to parties who utlize the service of a Notary. This notion is in line with the theory of legal protection, in which the theory of legal protection mandates that the law must provide protection for human rights that are harmed by others. This protection is given to everyone to enjoy the rights given by law.
The Legal Protection Theory also reinforces that the law must protect human rights and legal security provided by law. Consequently, this theory also suggests protection for individuals against notary deeds. 12 If parties are aggrieved by a Notary deed because of tort, then it is the Notary's fault. If it can be proven, then the notary must fully bear the loss so that the injured party gets justice. The existence of such justice constitutes a legal protection. Accordingly, every person who violates the law, whether intentionally or unintentionally, which causes harm to other parties, will be imposed on 8 13 This liability arises because of a legal relationship between the person who is injured and the person who causes the loss. 14 According to Hans Kelsen, there are 4 (four) types of liability, namely: 1) Individual liability means an individual is responsible for the violations he/she has committed; 2) Joint liability means that one person is liable for crimes committed by another; 3) Liability is based on error, which means that someone is liable for a crime that was committed on purpose and must have caused harm; and 4) Absolute liability, which means that someone is liable for a violation that was committed accidentally and unexpectedly. 15 Based on the interviews to Mr.  19 Abdul GhofurAnshori stated that "Civil liability for the correctness of material in the actions of a notary public can be derived from actions against the law, which can be differentiated based on active or passive nature. Acting against the law is an action that causes detriment to another party. Acting against the law is passive in the sense of not taking an action that is necessary for the other party to suffer a loss. So, in this case, the element of action against the law is an act that violates the law, there is an error and damage caused". 20 Actions against the law are broadly interpreted as an act not only against the law, but it is also against the politeness, decency or rights of others and causing detriment. An action is considered an act against the law if that action violates the rights of a third party; breaks the rules; in contrast to politeness; and contrary to comfort by considering the personal interests and property of others in everyday life. 21

b. Notary criminal liability
The role of a Notary is also to provide legal advice based on existing problems, as required by Article 15 paragraph (2) letter e of the Notary Law. Any legal advice that is given to interested parties the correctness of the contents and procedures of the deed he/she has drafted. This has a positive impact in the sense that anyone will admit that the Notary deed has perfect evidentiary power both in court and outside court. And if the Notary is proven to have violated the code of ethics and is not in accordance with the disciplinary code of ethics of the Notary Public, the Notary can be liable according to the code of ethics.Sanction based on the ethics are rendered by the Regional Honor Council (Dewan Kehormatan Daerah/DKD). DKD is appointed based on the National Working Meeting (RAKERNAS) by the Indonesian Notary Association. 26

The efforts to prevent wrongful acts (torts) committed by Notaries in making deeds
Prevention is a way to avoid an incident that may arise. Prevention is an anticipation so that problems that will arise in the future can be resolved. The enactment of the Notary Law as the basis for all Indonesian Notaries to make deeds, has already thought in advance about the prevention of actions that may result in torts on a Notary deed. There are preventive steps prior to the the occurrence of a tort because of a Notary deed. Based on the interviews to Dr. Dian Arianto, S.H, S.E, M.Kn., he said that "there are several steps in preventing notaries from a tort in making a deed, namely: 1) disclosure of information from the Notary and the parties, 2) clarification of documents by the Notary to authorized agency, 3) legal awareness from the Notary and the parties, (4). the efforts and roles of Kn. said that "when the notary deed is drafted, it must be explained to the parties and provide them the opportunity to ask questions, so that they understand the rules or norms as well as the legal consequences contained in the deed. If they do not understand, the Notary will explain again the purpose and the contents of the deed. In the sale agreement for example, when the parties have read and understood the meaning and purpose of the contents of the agreement, the notary will ask the parties to initialize one page at a time and then put a stamped signature which is deemed that the parties have read and understood all the contents of the sheet which has been initialized". 28 The parties must provide clear information to the notary, both identity and other documents. The importance of honesty in providing documents of the parties so that the validity of a deed can be accounted for. documents such as death certificates. So, the importance of openness and honesty must exist to prevent incorrect data in making deeds. 29

b. Clarification of documents by the Notary to authorized agency
The function of coordination is to ensure that the parties' documents are correct before the issuance of a deed. The process of coordinationtoday is very easy due to the advance technologysuch as via email, Gmail, WhatsApp, telephone, and sending letters for the purpose of clarifying the truth of documents. With the help of technological media, the requests for clarification ware less time-consuming compared to visiting the relevant agencies directly. The purpose of such coordination is to prevent lies, falsification, fraud or the parties' non-disclosure of a document that will be used on a deed.Based on interviews conducted to Dr. Dian Arianto, S.H, S.E, M.Kn., he said that "before making a deed, a notary should be very careful and use a sharper premonition in analyzing a document submitted by the parties. Lots of fake documents submitted to the Notary for the sake of one of the parties. Therefore, it is very important to clarify the document to the stakeholderswho issued the document by checking the authenticity of a document to avoid a tort in making the deed in the future". 30 c. Legal awareness from the Notary and the parties SoerjonoSoekanto said that "legal awareness is a narrative of the values that a person has in implementing the applicable or existing law". 31 SudiknoMertokusumo stated that "legal awareness means an awareness of what we should do or what we should do or not do, especially towards other people". This means awareness is each invidual'sobligations. 32 Public life requires legal certainty in the public sector, including public services provided by a Notary to citizens. This means that the Notary is responsible for overseeing the planned actions. Public services are provided by Notaries must be in accordance with actual practice. 33 Legal awareness is self-awareness without external pressures, coercions, or orders to comply with the applicable laws. The interviews with Dr. Dian Arianto, S.H, S.E, M.Kn who has served as a Notary for about 10 years in Batam City and currently the Chairman of the Indonesian Notary Association in Batam City said that "actually, before being appointed as a Notary Public, the counselings and trainings have been carried out by the Notary Public Organization.The Notary gives an official oath and has understood the applicable legal rules and laws, particularly those governing the Notary itself, namely the Notary Law".Hence, a Notary is required to have high legal awareness and uphold the principle of prudence. This makes the Notary to be professional and has high integrity in the community. Most Notaries who are inflicted in illegal acts are caused by their lack of knowledge on the latest regulations and information issued by the Notary Organization. 34

d. The efforts and roles of IkatanNotaris Indonesia/INI (the Indonesian Notary Association)
Notary Public Organization is a certified professional association which constitutes a legal entity association. As an organization, the Indonesian Notary Association (IkatanNotaris