Document Legalization Through Apostille: A Comparative Perspective of the Legal Systems in Indonesia and the Philippines

The present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State.

Apostille Convention, Art.1

Diplomatic relations and cooperation between countries and between citizens in the current era of globalization have no limits, especially in the fields of business, and education, because they are all for the benefit of establishing relations with other countries. Cooperation between one country and another has been growing. When citizens of one particular country interact with citizens of other countries, there will be civil legal relations.  On the other hand, in establishing such cooperation, important administrative requirements that must be completed such as the legalization of foreign public documents sometimes become obstacles in establishing relations between the two countries, especially in the administrative process and the high cost of obtaining legalization of public documents needed for various purposes. Moreover, public documents that have been legalized by institutions or ministries in Indonesia are not automatically accepted in the destination country. The demand for international public documents is also increasing. These documents can include birth certificates, death certificates, marriage certificates, education certificates, and other important documents needed in daily life and in legal proceedings. Therefore, international cooperation in document legalization is very important to facilitate interactions between citizens effectively and efficiently. For example, notarial deeds, power of attorney, and other documents must be legalized before they can be recognized by the destination country. To overcome this impasse, there is an institution called Apostille as an institution for attesting an official’s signature, stamp attestation, and or official seal in a public document by matching with a specimen through one agency, one of which is the Ministry of Law and Human Rights as the Competent Authority. The documents that can be submitted include the legalization of 66 types of public documents that are standard in visa applications and marriage registration (mixed marriages), as well as education and training requirements abroad such as diplomas and transcripts, and public documents. The existence of this Apostille institution makes the process of legalizing public foreign documents in Indonesia easier, faster and more efficient.

In situations or transactions that occur in other countries, public documents are often a necessity. However, such public documents must first be authenticated or certified before being used abroad. Therefore, legalization systems have been developed to ensure the origin of public documents through a series of formalities in the country of origin. To fulfill the traditional requirements of public document legalization, an application is required to several authorities, such as the Ministry of Law and Human Rights, the Ministry of Foreign Affairs, and the foreign Embassy or Consulate of the country where the document will be used. Although the legalization system has been established in regulations, the chain of legalization involving multiple authorities is often slow, cumbersome and expensive, causing inconvenience to the document applicant.

In using documents abroad, Indonesia has several legalization processes, including at the issuing institution, the Ministry of Law and Human Rights, and the Ministry of Foreign Affairs. For example, if in a civil case in the Jakarta District Court, one of the parties lives abroad and authorises a lawyer in Jakarta, the client who is abroad cannot directly sign the power of attorney sent by his lawyer from Jakarta. The power of attorney document must be signed before a notary in the client’s domicile and legalised by the Ministry of Law and Human Rights. Then, the document is submitted to the Ministry of Foreign Affairs of the country concerned to legalize the signature of the Ministry of Law and Human Rights official. The document is then sent to the Embassy or Consulate of the Republic of Indonesia in the country concerned to be legalized again before being sent back to the client’s lawyer in Jakarta with the stamp and legalization signature of the relevant agency, so that it can be filed with the Jakarta District Court.

To overcome the problems associated with the attestation of these documents, in this case, Indonesia has registered itself as a state party to the Apostille Convention since 5 October 2021. However, it will only be effective from 4 June 2022, namely after there are no objections from countries that have become state parties to the Apostille Convention previously. Indonesia has been a state party to the Convention Abolishing the Requirement of legalization for Foreign Public Documents (Apostille Convention) since 4 June 2022. Indonesia’s commitment to the Apostille Convention is then realized through the Apostille Service organized by the Directorate General of General Legal Administration of the Ministry of Law and Human Rights as the appointed Competent Authority.

As a party to the Apostille Convention, Indonesia has issued Presidential Regulation Number 2 of 2021 concerning the Ratification of the Convention Abolishing the Requirement of legalization for Foreign Public Documents or the Apostille Convention. The Apostille Convention is a convention established in order to simplify administrative processes by acceding to the Convention Abolishing the Requirement of legalization for Foreign Public Documents (“the Convention”).

The Apostille Convention was established to address this issue. With this convention, formal legalization procedures will be simplified, and apostilled public documents will be accepted by member states. The purpose of this convention is to eliminate the requirements of diplomatic or consular legalization derived from foreign documents that are public documents. 

Indonesia’s membership in the Apostille Convention has a very important urgency because many business and administrative purposes require legalization of official documents abroad. With Indonesia’s membership in the Apostille Convention, the process of verification and legalization of official documents can be done more quickly, easily and efficiently. So that this can facilitate business and administrative activities, as well as provide convenience for Indonesians who want to take care of needs abroad. An Apostille Certificate is a certificate that authenticates the validity of the origin of the document along with the signature of the official who authorized certain public documents, including diplomas, birth certificates, divorce certificates, power of attorney, and death certificates. Apostille guarantees the authenticity of a document by an examination by an authorised official on several points: the authenticity of the document that produced the signature, assurance of the individual’s ability to sign the form, and the identity of the document’s seal or stamp.

In relation to the notary over the presence of this Apostille, the notary can provide legalization by including the Apostille on public documents issued by the notary. However, the authority of the Notary in the legal system adopted in each country is very different. legalization and waarmerking are proof of documents made and signed by the parties where the process of making an agreement is witnessed by a Notary. 

INDONESIA

1. Application of Document legalization through Apostille in Indonesia

Indonesia has registered as one of the countries participating in the apostille convention to attest documents. Apostille certificates have long been used in many countries, including: South Korea. It is stipulated that all foreign official documents used in South Korea must be accompanied by an apostille certificate. The Apostille Convention has been ratified by 115 countries around the world. Many countries participating in this Apostille Convention have benefited not only from promoting the legalization of interlateral documents, but also from increased foreign investment interest. 

The Apostille Convention provision is a middle ground to accommodate the attestation of a public document with more effective terms and procedures. In order to support Indonesia to reach the top 40 in the Ease of Doing Business (EoDB) index, the Directorate General of General Legal Administration has accessed the Apostille Convention to cut the authentication of documents to be legalized from 5 (five) to only 1 (one) Agency in accordance with Presidential Regulation 2 of 2021. Convention Abolishing the Requirement of legalization for Foreign Public Documents (Apostille Convention 1961) is an Apostille convention acceded by Indonesia. This convention was signed in The Hague, Netherlands, on 5 October 1961. The Apostille Convention aims to remove the requirement for diplomatic or consular legalization of foreign public documents, as stated in the preamble of the Convention.

The Apostille Convention entered into force on 21 January 1965 with 120 participating countries. The provisions contained in the Apostille Convention apply to public documents created in the territory of a state party that accedes the Apostille Convention into the laws of its country to ease legalization requirements. Documents that fall under the definition of public documents should only be “Apostille” if they are signed abroad. By acceding to the Apostille Convention, Indonesia becomes a state party to the Convention and must make changes to the legalization process that is usually carried out by the Government of Indonesia with the legalization process using the Apostille service.

The legal basis for the enactment of this Apostille in Indonesia is:

1. Convention Abolishing the Requirement of legalization for Foreign Public Documents. 
2. Presidential Regulation of the Republic of Indonesia Number 2 of 2021 on the Ratification of the Convention Abolishing the Requirement of legalization for Foreign Public Documents. 
3. Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 6 of 2022 concerning Apostille legalization Services on Public Documents. 
4. Regulation of the Minister of Finance of the Republic of Indonesia Number 101/PMK.02/2022 on Types and Rates of Non-Tax State Revenue for Urgent Needs for Apostille legalization Services on Public Documents Applicable to the Ministry of Law and Human Rights. 
5. Decree of the Minister of Law and Human Rights of the Republic of Indonesia Number M.HH-01.AH.03.01 of 2022 concerning List of Types of Documents for Apostille legalization Services on Public Documents.

One of the things that can be done to reduce administrative procedures in international relations is to eliminate the requirement for legalization of foreign official documents. Eliminating the need for authentication of foreign official documents is closely related to business facilitation support. Without the removal of this certification requirement, the certification process will be long, time-consuming and expensive. In general, the legalization process in Indonesia for use abroad or vice versa is legalization at the document issuing institution, legalization at the Ministry of Law and Human Rights, legalization at the Ministry of Foreign Affairs must go through several processes, such as conversion.

For an apostille to be accepted, the document must be issued or approved by an official recognized by the authority. Apostille certificate contains 10 Apostille elements. An apostille certificate can be stamped or issued on paper consisting of 10 squares on a dartboard. The notice can be attached to the document, including the back of the paper, or attached to the paper as a page or as a paper attached to the document. Adding an apostille to a document certifies the authenticity of the authoried signature on the document to the recipient under the status of another signature.

The Apostille service simplifies the legalization process of public documents issued in Indonesia by eliminating the legalization stage by the Ministry of Foreign Affairs and Embassies/Consular. Thus, the legalization process becomes one step, namely through the issuance of an Apostille Certificate by the Ministry of Law and Human Rights. When an Apostille, Certificate has been attached to a document, the document can be directly used in more than 120 countries that are parties to the Apostille Convention. 

. The Apostille legalization Service has been accessible to the public since 4 June 2022 in line with the provisions of Article 12 of the Apostille Convention and was officially launched on 14 June 2022 by the Indonesian Minister of Law and Human Rights. Even now it can be accessed online through the Directorate General of General Legal Administration online page with the link address https://apostille.ahu.go.id/.

The apostille service organized by the Directorate General of Legal Administration of the Ministry of Law and Human Rights has the following requirements and procedures: 

Cost/Time

The apostille document fee is IDR 150,000 per document

Application completion time: (2-3 working days).

In Apostille Convention, Art.1, “The present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State”. It is explained that an Apostille is a slip of paper that is affixed to the document in question or can also be affixed to the public document in question. If a separate slip of paper is used then it is called an “Allonge.”. (Look at article 4 of the Convention). The scope of this Convention as regulated in Article 1 Paragraph (1) is to apply to so-called public documents and documents that have been created in the territory of one of the participating States and will be implemented in the territory of one of the other participating States. Apostille is carried out on documents issued in the territory of Indonesia and will be used in the territory of other countries which are parties to the Convention, these documents include: 

1. Documents originating from an authority or official related to a state court or tribunal, including those originating from a public prosecutor, court clerk or bailiff; 
2. Administrative documents; 
3. Document issued by a notary; and 
4. Official certificates attached to documents signed by individuals within their civil authority, such as certificates that record the registration of a document, or record the specific validity period of a document on a certain date, and ratification of signatures by officials and notaries.

However, this Apostille Convention does not apply to: 

1. Documents executed by diplomatic and consular representatives; 
2. Administrative documents directly related to trade or customs operations. These documents are exempt from legalization requirements because generally, in the practice of many countries, these documents are given special treatment.

Implementing regulations for the Apostille Convention have also been issued by the Indonesian Government. This regulation further explains what types of documents can be categorized as public documents along with exceptions. The Implementing Regulations also stipulate that judicial institutions are obliged to recognize the validity of public documents made abroad and equipped with an Apostille Certificate. An Apostille Certificate is a piece of paper that is attached to the document in question.

Furthermore, the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 6 of 2022 concerning Apostille Legalization Services on Public Documents, considers; 

1. That to improve services to the public in the field of legalization, a model for legalization of foreign public documents that is fast and has affordable access is needed and adapts to global developments (developments in international private law) that bridge civil legal interests across countries;
2. That with the issuance of Presidential Regulation of the Republic of Indonesia Number 2 of 2021 concerning Ratification of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, it is necessary to prepare technical instructions regarding the implementation of Apostille services in Indonesia.
3. Notary’s Authority Regarding Ratification of Apostille Documents in Indonesia

Article 1 point (1) of Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning the Position of Notaries explains that a Notary is a public official who has the authority to make authentic deeds and has other authorities as intended in this Law or under other laws. Until now, Indonesian notaries have been qualified as public officials. Notary as a position can be traced from the existence of the notary’s oath and promise of office as formulated in Article 4.

The freedom referred to is that the Notary in carrying out his office can act neutrally and independently. The general authority of a Notary is regulated in Article 15 of the Law concerning the Position of Notaries, namely that a Notary has the authority to make authentic Deeds regarding all deeds, agreements and provisions that are required by statutory regulations and/or desired by interested parties to be stated in an authentic deed, guarantee certainty of the date of making the deed, keep the deed, provide grosse, copy and quote of the deed. The preparation of these deeds is not assigned or excluded to other officials as determined by law.

To make authentic deeds relating to all acts, agreements and provisions required by law. The authority to make an authentic Deed is carried out by a Notary to formulate the wishes of the parties as outlined in the authentic Deed, taking into account the applicable legal regulations. 

Apart from this authority, the notary is given special authority which is carried out by the Notary as regulated in Article 15 paragraph (2), validating signatures and determining the date of private letters by registering them in a special book, recording private letters by registering them in a special book, making copies of handwritten letters in the form of copies containing descriptions as written and depicted in the letter concerned, validating the suitability of the photocopy with the original letter, providing legal counselling in relation to making deeds, making deeds relating to land, and making auction minutes.

The Notary also has special authority to correct written errors or typographical errors contained in the Deed Minutes that have been prepared by making a Correction Minutes and a copy of the Correction Minutes and is obliged to convey them to the parties. Apart from these authorities, Notaries also have other authorities regulated in statutory regulations to carry out legalization, waarmerking and copy collationnee.  

These three institutions have different meanings, namely legalization, which means that the document/letter made privately is signed in the presence of a notary after the document/letter has been read or explained by the Notary concerned. So that the date of the document or letter in question is the same as the date of legalization from the notary. Thus, the notary guarantees the validity of the signatures of the parties whose signatures are legalized, and the party (who signed the document) because the notary has explained the contents of the letter, cannot deny it and say that the person concerned does not understand the contents of the document/letter. Waarmerking is, that the document/letter in question is listed in a special book made by a Notary. Usually, this is done if the document/letter has been signed first by the parties, before being submitted to the notary concerned. Meanwhile, Copie Collationnee is where a notary makes a copy (rewrites) of a document. The notary makes a photocopy of the original letter under his hand in the form of a copy that contains the description as written and described in the letter in question.

With the presence of an Apostille, the notary can provide legalization by including the Apostille on public documents issued by the notary. 

However, the authority of a Notary in the legal system adopted in each country is very different. Legalization and waarmerking are proof of documents created and signed by the parties where the process of making the agreement is witnessed by a Notary as a public official at the time of signing the agreement. Apostille Legalization is an Online Document Legalization Service from Indonesia that can be recognized for use abroad by both Indonesians and foreign citizens who are members of the Apostille Convention. Legalization must go through the Ministry of Law and Human Rights which will carry out signature matching. This is because every Notary who will carry out his position must send a sample of his signature to the Ministry of Law and Human Rights. The role of the Notary in legalizing private deeds which will be used for the purposes of legalizing public documents. The notary certifies public documents so that they can be used, after which they are sent to the destination country. The public documents in question include: documents originating from an agency or official that has relations with the courts of a country’s judicial bodies, administrative documents, notarial deeds and official certificates affixed to documents signed by authorized officials. Apostille guarantees the authenticity of a document by checking by an authorized official on several things: the authenticity of the document that produces the signature, a guarantee of the individual’s ability to sign the form, and the identity of the document seal or stamp. 

THE PHILIPPINES

1. Application of Document legalization through Apostille in the Philippines

• Instrument of Accession signed 3 April 2018
• Instrument of Accession deposited 12 September 2018
• Entered into Force 14 May 2019
• Abolished the requirement of legalization
• Facilitated the use of public documents abroad

2. The Competent Authority in the Philippines

• The Competent Authority for the Apostille Convention in the Philippines is the DFA Office of Consular Affairs – Authentication Division

BEFORE: the Philippines issued limited validity (5 y) Authentication Certificates, signed in original

NOW: there is no expiration; signature of the Authentication Officer is digitized

3. Highlights and Updates

• Online appointment system – March 2021
• Services dropped by 38% in 2020
• Services fully recovered now, with sharp increase in the latter part of 2022
• Implementation of the E-Register system that allows manual or QR code verification.

4. Procedure

• Digital certificates for all signatories of PH public documents
• Government portal for submission and transmission of PH public documents
• Use of official emails for submission and transmission of PH public documents
• Verifiable documents for all PH public documents Government portal for submission and transmission of PH public documents
• Use of official emails for submission and transmission of PH public documents
• Verifiable documents for all PH public documents

5. Challenges

• Limited access to services due to unreliable postal service and lack of nationwide delivery
• Country Objections (Finland, Germany, Greece)
• Limited resources hamper planning for target and maximization of services

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Citations

1.  LECTURER IN LAW  Notary  Program  Faculty of Law , Pancasila University , Indonesian 
2.  LECTURER IN LAW,  ATENEO DE MANILA SCHOOL OF LAW, PHILIPPINES
3.  Melly Aida, Yunita Maya Putria, Ria Wierma Putria, Kasmawatia, Ria Silviana, Kepentingan Indonesia Mengaksesi Konvensi Apostille  dan Relewanisnya  di Bidang Kenotariatan, Reperterium, Julnal Ilmiah Kenotariatan
4. Andy Putra Rusdianto, Ruang Lingkup Dokumen Apostille, Jurnal Abdikarya: Jurnal Karya Pengabdian Dosen dan Mahasiswa E-ISSN: 2655-9706 Vol 5 No 2
5. Andy Putra Rusdianto, Ruang.. Op.Cit
6. Ara Anisa Armi,  Mencederai  Aksesi Apostille Convention dalam Mendukung Debirokratisasi Legalisasi Dokumen di Indonesia Injuring the Accession of the Apostille Convention in Supporting the Debureaucratization of Document Legalization in Indonesia, IPMHI Journal, Volume 2 (Juli -Des 2022)