Notary’s Role In Giving Free Legal Service Toward Unaffordable People In Jambi

Notary’s role in providing legal free service for unaffordable people in Jambi City

The authority of Notary is defined as making authentic deeds, which are expanded with other authorities. The expansion of authority, based on good planning with reference to the reality of the society that is demand for Notary services assistance. In carrying out its duties, the Notary is obliged to act in a trustworthy, honest, thorough, independent manner, and to keep the interests of the parties in a legal act impartially. A detailed description of the obligations of a Notary is provided in this Law to provide assurance of certainty, order and legal protection for people who need Notary services.

The authority of Notary also included in making agreements or contracts, such as sale and purchase agreements, loan agreements, rent agreements, leasing, hire purchase agreements and others. Although such contracts have lived and developed in the community, but form of regulation which concerning this authority is still not exist. Whilst the one that exist is in the form of Ministry Regulation, which is only limited to regulation that regulate leasing. Whereas other contracts have not yet received specific regulation.

As a result of the lack of legal certainty about the contracts thus will cause some problems. In reality one of the party often makes contracts in standard form, while the other party will accept the contract because of their weak socioeconomic condition. (Salim, Hukum Kontrak Teori dan Teknik Penyusunan Kontrak, 2014) Therefore it require the role of a notary in providing legal assistance toward parties who need to make contracts/agreements in order to provide a balanced position to the parties in fulfilling their rights and obligations.

The need for legal services of notary can be given to the society and do not recognize the social status, whether for the people who can or can’t afford it must get the best service from a notary. This is explained by Tobing, quoted by Widyadharma as follows: "The efforts in order to increase the professionalism of the notaries are not only known about the duties and notary positions but also must be known how desired by the society to be served" (Widyadharma, 1991)Tobing's opinion above, clarified the role of a notary as a public official who is given the trust to carry the task of the state that must be able to meet the needs of the society.

The existence of Article 37 paragraph (1) UUJN State guarantees all the rights of its citizens without exception while in the NKRI Territory. The statement is explicitly stated in Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia. Indonesia as a state law has its own characteristics. Everyone shall be respected, upheld and protected by the State, thus giving a sense of justice when a person commits a legal act. Notary is bound and obedient to the regulations governing the position of Notary i.e. UUJN. These laws and regulations shall serve as a guideline of a Notary in carrying out its duties and obligations, when it got violation there are sanctions.

Notary get honorarium from the general public. (Salim, Teknik Pembuatan Akta Satu (Konsep Teoretis, Kewenangan Notaris, Bentuk dan Minuta Akta), 2016) Notary during carrying out his/her position, although appointed and dismissed by the government, but not get a salary from the government or pension from the government. Thus it can be said that honorariums/fees received by a notary become personal income for the notary concerned. Nevertheless Notary is obliged to assist by free of charge to those who are unable to provide honorariums/fees to the notary.

Based on the results of the interview with the notary respondent, said that the price or notary honorarium reduction was given if the client is unable to pay the notary honorarium according to the type of deed that’s made, the notary will ask how much the client is able to pay the honorarium. If not able to pay, a notary will help. The provision of free services by the notary was usually motivated by humanitarian factors, client honesty and notary belief that the client is not capable. The notary may ask the client to indicate a certificate of incapacity issued by the client's domicile official to be more convincing (Nirmaliana, 2017).

The results of interviews with respondents also mentioned that clients who come only for consultation are never charged for the services. When a notary performs his or her duties and authority, if legal services can be provided without requesting an honorarium, the notary is required to do so. However, if the legal services can not be given free of charge, the notary must explain the reason. Based on the interview result of the researcher with the respondent about the procedure of giving the free service first, the notary would request the client's identity and then asked the client to bring a certificate of incapacity issued by the client's domicile official, then Notary notified the local notary organization that he providing services free of charge to an unaffordable client, after obtaining oral or written consent from the organization, he may provide such services for free, for example in the case of making a certificate of inheritance. Respondents declared making deeds to clients who can not afford it free of charge based on their own wishes and come from their conscience (Santiliana, 2017).

Based on the interviews results with respondents, the definition of free of charge is the client is not burdened with the payment of honorarium related to the making of the deed toward the notary. The problems that proposed by the client must have a proper legal basis, which concerning the interests of the poor community both personal and public interests. The processes are:

• Client who belong to the incapable community faced the notary and consult his/her problem;

• This client prepares his/her identities such as identity card, and then prepares other supporting data;

• Client must bring a certificate of incapability of money, by requesting a covering letter which stated that the client belongs to the incapable community from the head of the local neighborhood association where the client is living, which then the letter is taken to the kelurahan to be recorded and registered officially. After obtaining approval from the kelurahan, The certificate of incapability of money shall be submitted to the notary;

Then the notary provides solutions and makes legal documents such as authentic deeds required by the client who belong to the incapable community. (Nirmaliana, 2017).

Law Number 16 Year 2011 concerning Legal Aid explains that any person or group of poor people who cannot fulfill their basic and appropriate right can receive free legal assistance. This requirement is indicated by a letter of incapability of money or other documents as a substitute, such as a public health insurance card, cash transfers, poor rice cards, and so on. Therefore Notary as a public official who authorized to create an authentic deed when get clients of the incapable community, must provide assistance to them, one of them is by providing legal services with free of charge.

The provision of legal services free of charge by notaries is not limited to making legal documents only. Based on Article 15 paragraph (2) UUJN, one of the notary's authority is to conduct legal counseling. Legal counseling is part of the development of national law, while the development of national law is part of national development. Legal awareness activities are one of socialization to illustrate how it is justice. National law can not guarantee the realization of justice.

The function of legal counseling is preventive measures, corrective steps, maintenance steps and development functions.

• Counseling as a preventive measure, ie preventing the emergence of negative and desdructive rights that can cause harm to the community.

• Counseling as a corrective measure, which serves as a correction of things that already exist, so if there is something that violates the law, it can reduce the impact or eliminate it.

• Counseling as a preservative step, which provides encouragement to foster the spirit to participate in legal development in accordance with the ability and position respectively.

• Counseling as a function of development (developmental), which provides encouragement and to input something so people can be more independent and independent or rely on others.

The authority of a notary is to provide legal counseling related to the making of the deed. Legal counseling conducted by a notary in the making of deed is indispensable. The purpose of legal counseling by a notary is to provide a more understanding of authentic deed making. Currently there is still a lot of misunderstanding in the community in making authentic deed. Legal counseling can be done by providing a correct understanding of clients. The notary must explain the contents of the authentic deeds that have been made. Not everyone who aska notary to make an authentic deed can understand well the deed. Notary does not receive honorarium in providing legal counseling to clients.

Legal counseling given by the Notary is very useful both to the Notary and the constituents who will make the deed. Usefulness is in order to provide legal certainty in the making of deed, where the parties will understand the legal provisions that are mandatory in the fulfillment of the making of the deed, so that there is no violation of the law because it has been notarized by Notary through legal counseling. In addition, notarial deeds made must have evidentiary power.

Legal services in the world of Notary must keep referring and obdient to UUJN as well asNotary code of ethics with the goal that in carrying out the notary profession in society does not lower the dignity and get complaints.

Obstacles faced by Notary in the provision of legal services free of charge to people who can not afford in the Jambi City

Based on the results of interviews with notary respondents, basically the provision of legal services by notaries did not experience many obstacles and notaries would not complicate clients, as long as the clients has good intentions and had completed the required file. In notarial practice, important documents that are usually required for legal services of notary, namely:

• Identity self

• Identity of husband or wife (if already married)

• Documents of ownership of goods (if deeds are made concerning certain goods).

However, for the obstacles faced by a notary when providing free legal assistance, it is difficult to assess whether the the client is incapable of paying the notary if they don’t bring such important documents to prove their incapability. Notary can not always judge from appearance only. Obstacles that must be faced by a Notary is the issue of operational expenses of the office. Some Notary legal services require a notary to incur expenses. Notary is a public official appointed and inaugurated by the State but not receiving honorarium from the State, but a Notary seeking his own income from honorarium for services make the deed needed by society. The notary honorarium provided is not only for private notaries, but most of the honorarium is used for operational expenses of notary offices. Operational costs such as:

• Employee salary costs as labor.

• The cost of electricity as electrical power of computers and other electronic devices that require electrical power to type deeds and other purposes related to the interests of the client.

• If there is in the making of deed dealing with other agencies such as the Land Official Government, the cost is paid from the notary's honorarium.

The efforts to resolve the obstacles that face by Notary in giving free legal service toward unaffordable people in Jambi City

Respondents explain about the efforts to resolve the obstacles encountered which is Notary Organization especially in Jambi City should be more actively in conducting counselling activities or in the form of seminars to educate Notaries to real problems experienced during their works. Afterward the Notary Organization should hold a regular meeting every month and invite all its members consisting of Notaries with one of the agenda of the activity that is finding a solution if the notary gets a client who cannot afford to give fees (Sari, 2017).

It is necessary to make agreement between Notaries through Notary Organization toward what kind of case that can be given free legal service, for example in case of making a certificate of inheritance for the community who cannot afford to pay it, the reason for making the certificate of inheritance is thing that must be done by heir. If the heirs are categorized as incapable and they do not have the expenses to make a certificate of inheritance, the heirs will have difficulties with administrative records related to the estate of the heirs. Such matters would become a consideration for the notary in the provision of legal services free of charge (Christi, 2017).

It is better for Notary Organization in Jambi City to cooperate with legal aid agencies or non-governmental organizations in the use of notary services, Notary Organization appointed several scattered Notaries in the city to help LAA or NGOs in Jambi City. When there are people who cannot afford to pay come to LAA or NGOs and they need the services of a notary, then LAA and NGOs can appoint a notary who has been assigned to be their partners, because having a notary partners, thus the notary appointed can provide legal counsel in the field of notary and notary can give Legal services free of charge (Santiliana, 2017).