Legal Certainty of Authentic Deeds Drawn up By Notaries Violating the Dual Office Holding Prohibition Pursuant to Article 17 of Law No. 2 Of 2014 on Notary Positions

Abstract

Notaries are public officials authorized to draw up authentic deeds. However, violations of the prohibition on holding dual offices under Article 17 of Law No. 2 of 2014 continue to occur, including cases in which notaries concurrently practice as advocates or engage in other prohibited professions, sometimes by attempting to circumvent the prohibition through formal leave. This article aims to analyze violations of the prohibition on dual office holding by notaries and examine their legal consequences for the legal certainty of the deeds they draw up, using the Theory of Authority to assess the legality of actions performed by public officials and the Theory of Legal Certainty to evaluate the authenticity of the resulting legal instruments. This normative juridical study employed statutory, conceptual, analytical, and case approaches. Data were collected through a literature review and analyzed using a qualitative-deductive method. The findings indicate that the validity of an authentic deed requires the cumulative fulfillment of formal and substantive requirements and that compliance with the prohibition on dual office holding forms part of the formal requirements governing a notary’s authority. If a notary is proven to hold a prohibited concurrent position, including through circumvention by taking formal leave, the notary’s legal authority to act may be deemed impaired. Consequently, pursuant to Article 1869 of the Civil Code, the deed may lose its status as an authentic deed and instead have the evidentiary value of a private deed, irrespective of the substantive correctness of its contents. Furthermore, supervision by the Notary Supervisory Council remains suboptimal and largely reactive. The legal defect in the deed therefore arises from the impairment of the notary’s authority at the time the deed was drawn up. Notaries are advised to comply strictly with their oath of office and statutory obligations in order to preserve the legal certainty of the deeds they produce.