The enforcement of law in Indonesia’s State Administrative Courts (PTUN) is currently hindered by various complex normative issues. Since Law No. 5 of 1986 on State Administrative Courts (UU Peratun) officially came into force nearly four decades ago, the procedural framework contained in the law has largely been adopted from civil procedural law.
“The two amendments introduced in 2004 and 2009 only addressed certain sectoral issues,” explained Dr. Umar Dani, Coordinator of the Research Team at the Supreme Court of the Republic of Indonesia (MA RI), in a statement released on Friday (Jun. 5), following a visit by the Center for Legal and Judicial Policy Strategy of the Supreme Court of the Republic of Indonesia (Pustrajak Kumdil MA RI) to the Department of Administrative Law at the UGM Faculty of Law (Law UGM).
This uncertainty intensified following the enactment of Law No. 30 of 2014 on Government Administration (UU AP). While the law contributed to the development of public law and the modernization of government administration, several of its provisions created inconsistencies with UU Peratun.
This situation has resulted in a legal dualism that lacks harmony in practice, including the emergence of the positive fictitious decision regime under UU AP, while the negative fictitious decision regime remains in force under UU Peratun, as well as the requirement that administrative remedies be exhausted before filing a lawsuit.
“The Supreme Court has been compelled to bridge these antinomies internally through Supreme Court Circular Letters (SEMA), applying principles of legal preference to avoid problematic legal dualism and legal vacuums that could disadvantage justice seekers,” he said.
In response to these deep-rooted challenges, Dr. Hendry Julian Noor of Law UGM’s Department of Administrative Law presented an analysis of key issues that should be incorporated into the forthcoming legislative revision.
The first concern relates to the overlap in absolute jurisdiction between general courts handling civil matters and PTUN, which often appear to encroach upon each other’s authority and create confusion in the application of the law.
In addition, he emphasized the urgency of clarifying the PTUN’s jurisdiction in reviewing allegations of abuse of authority under UU AP, so that clear boundaries can be established and overlap with corruption-related criminal proceedings can be avoided.
“Another issue is determining which legal regime should be adopted in the future, whether to retain the negative fictitious decision system or transition entirely to the positive fictitious decision system,” explained Dr. Hendry.
According to Dr. Hendry, empirical evidence shows that the enforcement of administrative court decisions frequently fails due to the absence of an effective enforcement institution, preventing the courts from fully restoring individuals’ rights.
Meanwhile, Dr. Richo Andi Wibowo, another lecturer in the Department of Administrative Law at UGM, noted that the adoption of civil procedural law for administrative court proceedings has created difficulties for justice seekers appearing before Peratun. Under the current framework, individuals are generally required to demonstrate that they have already suffered harm before being recognized as having legal standing.
However, from the public’s eyes, problematic government decisions, permits, plans, or policies should be open to challenge from the outset. Legal protection should not have to wait until such decisions or policies have been implemented and caused significant losses to the public.
“In such circumstances, justice arrives too late. As the saying goes, ‘justice delayed is justice denied’, delayed justice is effectively injustice,” he explained.
Dr. Richo also highlighted provisions in UU Peratun that make it difficult for judges to grant requests to suspend the implementation of administrative decisions. In many countries, such suspensions are among the primary forms of legal protection for individuals and communities against potentially problematic administrative decisions or actions.
He pointed out that Peratun’s system was established during the Soeharto era, a period when there was a desire to create administrative courts without granting them substantial authority.
“The reliance on civil procedural logic and provisions that restrict suspension requests may reflect an effort to weaken Peratun’s system. Therefore, these issues should become a primary focus in revising UU Peratun,” he added.
The visit by Pustrajak Kumdil, MA RI, to meet with academics in Law UGM’s Department of Administrative Law is expected to contribute to the formulation of an Academic Paper to support the transformation of Peratun. Such a transformation should not merely address technical challenges but also serve as a strategic response to critical issues that require stakeholder attention.
Author: Salwa
Editor: Gusti Grehenson
Post-editor: Jasmine Ferdian
Photo: Magnific