Journal of Legal, Ethical and Regulatory Issues (Print ISSN: 1544-0036; Online ISSN: 1544-0044)

Research Article: 2018 Vol: 21 Issue: 2

The Extension of Absolute Competence of State Administrative Court after the Enactment of Act Number 30 of 2014 on Government Administration in Indonesia

Firzhal Arzhi Jiwantara, University of Mataram

Huala Adolf, University of Padjajaran

Gatot Dwi Hendro Wibowo, University of Mataram

RR Cahyowati, University of Mataram

University of Mataram, University of Padjajaran

Abstract

After the enactment of Act Number 30 of 2014 on Government Administration, an extension on the authority or absolute competence of the State Administrative Court revealed, which involved examining whether or not any misuse of authority on the judgment of the State Administrative Court, the judgment in determining the object of Positive Fictitious dispute and the content of factual action by the officials of State Administrative Court, as well as the authority of the Administrative Court to examine the public lawsuit since they do not receive any appeal from the official. The juridical implications of the extension of absolute competence in the practice of the State Administrative Court after enactment of Act Number 30 of 2014 on Government Administration was the existence of two judicial institutions that seemed to have the same authority to examine the elements of authority abuse. They are “Tipikor’ Court”-a Court for corruption cases-and State Administrative Court. The organization of procedural law for State Administrative Court after the enactment of Act Number 30 of 2014 on Government Administration, given a vacuum of law in both State Administrative Court and Government Administration Court related to the examination of any misuse of authority, the Supreme Court has issued Regulation of the Supreme Court Number 4 (2015) on the Procedure Guidelines in Examining the Misuse of Authority, as well as Regulation of the Supreme Court Number 5 (2015) on Procedure Guidelines to Have Judgment of Receiving an Application in order to Have Judgment and/or Action from the Government Official orAgency

Keywords

Extension, Absolute Competence, State Administrative Court, Government Administration, Court for Corruption.

Introduction

The enactment of Act Number 30 of 2014 on Government Administration has brought the consequences of extending the absolute competence of the Administrative Court, examining government action. The absolute competence of the State Administrative Court is extended based on the article 87, while the Act Number 5 of 1986 about the State Administrative Court, as amended by Act Number 9 of 2004 and Act Number 51 of 2009 Article 1, subsection (9), is temporarily applied as long as it is not abolished. However, this may emerge the conflict of norm, in addition to the establishment of circular letter of the Supreme Court Number 4 of 2016 about the application of plenary meeting result of the Supreme Court in 2016 as the guidelines to do the function for the Court and it contains the substances of judgment and/or execution of the State Administrative officials including the extension of Absolute Competence of the State Administrative Court after the enactment of Act Number 30 of 2014 about the Government Administration.

In sociological context, this may decrease the public trust toward the existence of court itself, particularly the State Administrative Court in which people, based on the previous administrative law, only see judgment as the disputed object in the State Administrative Court. However, after the enactment of Act Number 30 of 2014 on Government Administration, they have seen a factual action or deed known as the disputed object. As the extended definition of judgment after the enactment of Act Number 30 of 2014 has disturbed the public understanding on the existing definition of Judgment of the State Administrative Court and although the definition of Judgment of the State Administrative officials mentioned in article 1 subsection (9) Act Number 5 of 1986 has been amended by Act Number 51 of 2009, the definition has been extended under the Act Number 30 of 2014, which should be seen as like the definition of judgment mentioned in article 87, Act Number 30 of 2014. However, in relation to the definition of judgment mentioned in Act Number 5 of 1986 up to the current days, this Act-which has been amended by Act Number 51 of 209 about the State Administrative Court-is still applied and this condition has successfully confused the public to understand the problems that relate to the judgment seen as the disputed object.

In juridical context, the extension of Absolute Competence of the State Administrative Court after the enactment of Act Number 30 of 2014 on Government Administration, it seem Act Number 30 of 2014 on Government Administration to be clear on its regulation under the article 87 Government Administration, in which the application relates to the definition of judgment mentioned in Act Number 5 of 1986 and it should be seen as mentioned in article 87 Government Administration, that the definition of judgment mentioned in those two different Acts may reveal the conflict of norm which makes the government official and society feel difficult to understand and interpret the actual definition of judgment by the State Administrative Court, often seen as the disputed object of an individual or disputing civil agency. The conflict of norm is due to those two different sectorial acts that have different definition of judgment are still applied since they have not been ever abolished or nulled. The conflict of norm may reveal a question such as: Does the definition of the judgment keep using the guidelines and references mentioned in Act Number 5 of 1986 or Acts within Government Administration? And do those two norms still have any validity or efficacy.

Research Method

This study is a research of normative law, pointing to the court’s judgment and the legal norm under several regulations. In addition, this study is descriptive, revealing some Acts that relate to the theory of law as the research object. It used several approaches including philosophical, stature, conceptual and case approaches.

Literature Review

Act Number 30 of 2014 on Government Administration is a statutory law of state administrative law or administrative law. In Government Administration governing the governance of decision making within the government. Government officials are authorized to issue administrative decisions and perform administrative actions. Control of government action in the form of Administration and administrative action may be exercised within the government itself through the objection and appeal of the Administration known as the administrative effort. Solutions through administrative measures must first be diledaui in the case of legislation requires it. The new Government Administration Court is authorized to adjudicate after the administrative effort is bypassed.

In the Administrative Law the competence of the Administrative Court is not only a State Administrative Decree or also called Administrative Decision but has the competence to adjudicate the Administrative Measures. In addition, the Government Administration Court has the competence to decide upon the application to determine whether there is an element of abuse of authority and a positive fictitious decision application. The silence or absence of the Agency and/or the Government Official on the request of the body or a person shall be considered to issue a decision. Positive means that the decision shall be deemed granted. However, to determine the granting of a person's or civil law's request not automatically, but must first be tested through the Administrative Court, The presence of Government Administration Act adds to the absolute competence of Government Administration Court.

Results And Discussion

The Extension of Absolute Competence of the State Administrative Court after the Enactment of Act Number 30 of 2014 on Government Administration

The judgment of Court’s absolute competence as mentioned in article 24 subsection (1) up to (5) Act Number 48 of 2009 on Judicial Power is still abstract. For instance, what elements to be met in order to be categorized into a State Administrative dispute? And who are the disputing subjects in that Administrative Court? The absolute competence of the State Administrative Court had been set under Act Number 5 of 1986 on State Administrative Court, which has been amended several times. Act Number 9 of 2004 is the first amendment of Act Number 5 of 1986 on State Administrative Court. Furthermore, Act Number 51 of 2009 is the second amendment and functioned as the implementation of article 24A subsection (5) the Constitution 1945.

In part of systematically interpretation, the absolute competence of the State Administrative Court is elaborated based on Article 47 junco Article 1 subsection (10) junco Article 1 subsection (9) Act Number 51 of 2009 about the Second Amendment of Act Number 5 of 1986. The administrative dispute emerges due to the establishment of the State Administrative Judgment and thus, the judgment is one primary component in the state administrative dispute. The organization of Court’s absolute competence is on the domain of the procedural law that should be further set “under the law”. The State Administrative dispute as the absolute competence of the State Administrative Court has a disputed object; the judgment of the State Administrative Court and it has been set specifically under the Act Number 51 of 2009 about the Second Amendment of Act Number 5 of 1986.

Based on Act Number 30 of 2014 about the Government Administration, Article 87 sets that: With this Act, the judgment of the State Administrative Court as mentioned in Act Number 5 of 1986 about the State Administrative Court as amended by Act Number 9 of 2004 and Act Number 51 of 2009 should be defined as:

• The written decision that involves factual actions.

• The judgment of the Government Administration officials in executive, legislative, judicative and other Government officials;

• Based on the provision of law and Good Governance Principles;

• It is final in broader context;

• The judgment that may emerge any legal consequences’ and/or

• The judgment that is publicly applied.

The provision of Article 87 is one alternative regulation set in Act Number 30 of 2014 about the Government Administration. Comparing to the elements of interpretation of judgment by the State Administrative Court as mentioned in article 87 Act Number 30 of 2014 about the Government Administration, the element of Judgment by the State Administrative Court based on Article 1 subsection (9) Act Number 51 of 2009 may have several differences, such as follow (Table 1):

Table 1
The Elements Of Judgment By The State Administrative Court
The Elements of Judgment by the State Administrative Court based on Article 1 subsection (9) Act Number 51 of 2009 The Elements of interpretation of Judgment by the State Administrative Court based on Article 87 Act Number 30 of 2014
•The written decision;
•Established by the State Administration Officials;
•Containing the acts of administrative law
•Based on the provision of applied law;
•It is concrete and final;
•Causing particular legal consequences toward an individual or civil agency.
•The written decision involving factual actions.
•The judgment of the State Administration Officials in executive, legislative, judicative and other Government officials;
•Based on the provision of law and General Principle of Good Government;
•It is final in broader context;
•The judgment may cause particular legal consequences; and/or
•The judgment that is publicly applied

In the formulation of norms set under the Article 87 Act Number 30 of 2014 on Government Administration, as the amendment, contains an implicit amendment over the provision of norms in Article 1 subsection (9) Act Number 51 of 2009 about the second amendment of Act Number 5 of 1986 about the State Administrative Court. This implicit amendment was not accepted as the Enclosure II Act Number 12 of 2011 about the Enactment of Acts subsection (135) that: The formulation in amendment did not contain any implicit amendment over the provision of other Acts. This amendment should be conducted by making a framework for a new definition in general provision of law or by making the legal regulation of amendment.

The State Administrative judgment in relation to the absolute competence of the State Administrative Court-as a domain of procedural law set in a specific content-cannot be inserted into other regulations; by amending the Act Number 51 of 2009, particularly to Article 1 subsection (9) to make it correspond to the Article 24A subsection (5) the Constitution 1945. The further organization is “through Acts” (bij de wet), not through any insertion “into Acts” (in de wet) toward the amendment of Act Number 30 of 2014 on Government Administration, which has nothing to do with the procedural law of the State Administrative Court.

The Organization of Judgment and/or Governmental Execution based on Act Number 30 of 2014 on Government Administration

There is no specific and separated organization on its different chapters, sections or paragraphs between the judgment and/or execution in Act Number 30 of 2014 on Government Administration. The organization of execution is unified with articles that set judgments and other related articles. Each Judgment and/or execution is a species of a genus of government law.

The Organization of Judgment

Before organizing the aspects that relate to the content of judgment, Act Number 30 of 2014 on Government Administration, it needs to set the concept and definition of judgment at first.

The concept of judgment itself is set in Chapter I entitled The General Provision Article 1 subsection (7). The State Administrative Judgment is also known as the Judgment of the State Administration and latterly popular as Judgment. It is defined as a written judgment by government officials and/or agency in order to organize the government.

Why the concept of judgment is mentioned in Chapter I the General Provision of Act Number 30 of 2014 on Government Administration? The general provision of an Act contains: Materials of definition or understanding. If a term has been defined in the general provision of Act, the term should be interpreted based on the predetermined definition anytime it is applied to the related acts, unless it has different intention explicitly mentioned in the regulations itself. A term defined in the General Provision of an Act is an authentic interpretation of an Act maker. Definition is a boundary that should be differentiated from others.

Act Number 30 of 2014 on Government Administration, in addition to provide conception of Judgment, regulates the rights and obligations of the government officials that relates to the judgment in detail. The rights and obligation of the government officials in relation to Judgment are mentioned in a separated chapter which specifically contains the materials of rights and obligations of the government officials; it is in Chapter IV entitled “Rights and Obligation of the Government Officials” and it contains 2 (two) articles: Article 6 contains the rights of the government officials, while Article 7 contains the obligations of the government officials. There are 4 (four) kinds of rights that relate to the judgment and 7 (seven) kinds of obligation that relate to the judgment.

The aspects that relate to the content of Judgment are set in Chapter IX classified into several sections: 1) The legal requirement of Judgment; 2) the application and the constraint of Judgment, divided into two paragraph (paragraph 1 set the application of the judgment and paragraph 2 set the constraint of the judgment); 3) the delivery of judgment; 4) the amendment, abolishment, adjournment and nullification of judgment and it is set in several paragraphs including: Paragraph 1 set the amendment, paragraph 2 set the abolishment, paragraph 3 set the adjournment and paragraph 4 set the nullification; 5) the legal consequence and/or execution and it is set in several paragraph: Paragraph 1 set the legal consequences of invalid judgment and/or execution, while paragraph 2 set the legal consequences of null able judgment and/or execution; 6) the legalization of document.

In order to comprehensively capture the aspects that relate to the content of judgment, the following table presents the detail (Tables 2 & 3):

Table 2
Rights And Obligations Of The Government Officials In Relation To The Judgment
Rights of the Government Officials (Article 6) Obligations of the Government Officials (Article 7)
•Having authority to make judgment (Article 6 subsections (1).
•Making written or electronic judgment (Article 6 subsection (2) letter (c)
•Establishing or not establishing, amending, substituting, abolishing, suspending, and/or abrogating the judgment (Article 6 subsection (2) letter (d)).
•Handling an administrative action that public file due to the judgment they made (Article 6 subsection (2) letter (k)).
•Making judgment under their authority (Article 7 subsection (2) letter (a)).
•Obeying the requirement and procedures of making judgments (Article 7 subsection (2) letter (c)).
•Providing chances to hear the public opinions before making judgment based on the provision of applied legal regulation (Article 7 subsection (2) letter (f))
•Publicly Informing the judgment that cause disadvantages in 10 (ten) workdays at most since the judgment was made and/or executed (Article 7 subsection (2) letter (g)).
•Organizing the standard operational procedures of making judgment (Article 7 subsection (2) letter (h)).
•Establishing judgments for people petition, based on things that have been judged in an appeal (Article 7 subsection (2) letter (j)).
•Executing the official judgment and invalid or nulled judgment by the Court or the concerned stakeholders (Article 7 subsection (2) letter (k)).
Table 3
The Organization Of Judgment In Chapter Ix
Chapter IX First Second Third Fourth Fifth Sixth
The government’ judgementArticle52-Article74 The legal requirement of judgment Article 52-Article56 The application and constraint of judgment The delivery of judgment, Article 61 and Article 62 The Amendment, Abolishment, Adjournment and Nullification The Legal Consequence of Judgment and/or Execution The Legalization of Document Article 73-Article 74.
    Paragraph 1 The application of judgment Article57-Article59   Paragraph 1 The Amendment Article 63 Paragraph 1 The Legal Consequence of Invalid Judgment and/or execution  
    Paragraph 2, the constraint of judgment Article60   Paragraph 2 The Abolishment Article 64 Paragraph 2 The Legal Consequence of null able Judgment and/or Execution Article 71-Article 72  
        Paragraph 3 The Adjournment Article 65    
        Paragraph 4 The Nullification Article 66    
Table 4
The Organization Of Judgment Out Of Chapter Ix
Chapter The Contents and Articles
Chapter V: The Government Authority The authority to take and/or execute a judgment {Article 8 subsection (1)}.
•The prohibition to misuse any authority in taking and/or executing a judgment {Article 8 subsection (3)}.
•The principles of Judgment {Article 9 subsection (1)}.
•The obligation to mention or inform the provision of regulations applied as the basis of authority and taking and/or executing the judgment {Article 9 subsection (3)}.
•The absence of obstacle to take and/or execute a judgment although the legal regulation is unavailable or unclear {Article 9 subsection (4)}.
Chapter VII: The Organization of Government Administration The power to constrain the judgment established by the authorised officials {Article 33subsection (1)}.
•The capacity of applying the judgment established by the authorized officials {Article 33 subsection (2)}.
•The authorized officials abolish the judgment as set in Article 33 subsection (2) {Article 33 subsection (3)}.
•Various government officials and/or authorised agency make and/or execute the judgment {Article 34 subsection (1)}.
•Official assistance that relates to the judgment (Article 34).
•The responsibility toward the judgment in official assistance (Article 37).
•Electronic judgment.
•Judgment in the form of admission, dispensation and concession (Article 39).
Chapter VIII: Government Administration Procedures •The prohibition to make and/or execute a judgment that may cause a conflict of interest (Article 42).
•Various reasons causing a conflict of interest in making and/or execute judgment (Article 43).
•Public rights in the notion of conflict of interest by the officials in making and/or executing the judgment {Article 44 subsection (1) and (2)}.
•The obligation of the stakeholder in the notion of the officials having a conflict of interest in making and/or executing a judgment {Article 44 subsection (3) and (4)} and Article 45}.
•The socialization of Judgment causing imposition toward people (Article 46 and Article 47).
•Exception on Article 46 and Article 47 (Article 48).
•The obligation to organize and apply the general guidelines of standard in making judgment (Article 49).
•The obligation to do examination, procedures and the deadlines before determining and/or executing a judgment (Article 50).
Chapter X: Administrative Effort Legal action toward the judgment (Article 75, Article 76, Article 77 and Article 78.

The provision of judgment is not only set separately in Chapter IX, but also spread out into other chapters such as Chapter V about Government Authority, Chapter VII about the Organization of State Administration, Chapter VIII about State Administration Procedures and Chapter X about Administrative Effort. Those provisions are related to Judgment set in Act Number 30 of 2014 on Government Administration and it should be read and connected to one another systematically (Table 4).

Organizing the aspects of content of judgment is ended by interpreting the judgment as mentioned in Act Number 5 of 1986 on State Administrative Court, as amended by Act Number 9 of 2004 and Act Number 51 of 2009 and finally amended by Act Number 30 of 2014 as mentioned in Chapter XIII entitled ‘The Provision of Amendment Article 87’.

The implementation of that reciprocal law can be modelled, related to the concept of the State Administrative Judgment in Article 1 subsection (9) Act Number 51 of 2009 about the Second Amendment of Act Number 5 of 1986 about the State Administrative Court that contains comprehension/connotation/intention: The written judgment, established by the State Administration officials, contains the legal actions of the State Administration based on the applied regulations and it is concrete, individual and final in nature. It causes particular legal consequences toward an individual or civil agency (Figure 1). Toward the comprehension/connotation/intention as mentioned in Article 1 subsection (9) Act Number 51 of 2009 about the Second Amendment of Act Number 5 of 1986 about the State Administrative Court and amended by Act No. 30/ 2014 on Government Administration, particularly in Article 87 should be interpreted as:

Figure 1: The Relation Between Comprehension And Extension

• Written judgment that also involves factual actions;

• The judgment by the Government officials in executive, legislative, judicative and other Governmental officials;

• Based on the provision of Law and Good Governance Principles;

• It is final in broader context;

• The judgment that may cause any legal consequences; and/or

• The judgment that is publicly applied.

Adding the phrase “that also involves factual actions” after the phrase “the written judgment”; the phrase “executive, legislative, judicative and other government officials” after the phrase “the judgment of the State Administrative officials”; the phrase “in broader context” after the phrase “it is final” and alleviate the element of concrete may make extension/denotation of the object in a genus of judgment increase. The concept of scientific discussion recognizes it as ‘terms’, as Mochtar & Sidharta (2013) argued that every science must contain various concepts and definition expressed within a term or combination of some terms, those terms and definitions is strived to be used consistently in order to make light of its structuring, understanding and mastery on the studied object in particular field so that a knowledge in particular field could be well-constructed.

Concept is a universal representative of an entity. It is structured in terms. Term is a word or phrase with particular definition in order to construct a concept. Concept can be considered as a universal representative of a number of objects with similar elements, as well as a generalization of particular criteria in a number of objects. Concept or definition in law is known as juridical (legal concept); a constructive and systematically concept for understanding law or the legal system.

Act Number 51 of 2009 about the Second Amendment of Act Number 5 of 1986 about the State Administrative Court and Act Number 30 of 2014 on Government Administration, all use the concept of “State Administrative Judgment” and it can be seen in Article 1 subsection (9) of Act Number 51 of 2009 about the Second Amendment of Act Number 5 of 1986 on State Administrative Court and Article 1 subsection (7) of Act Number 30 of 2014 on Government Administration. The difference is that Article 1 subsection (7) of Act Number 30 of 2014 on Government Administration is for the concept of State Administrative Judgment, known as Administrative Judgment up to Government Administration Judgment and latterly called as the Judgment.

The concept of “Judgment” in Article 1 subsection (7) of Act Number 30 of 2014 on Government Administration is a term to represent the concept of State Administration, the concept of State Administrative Judgment and the concept of State Administration Judgment (Figure 2). The concept of State Administrative Judgment as stated in Article 1 subsection (9) of Act Number 51 of 2009 about the Second Amendment of Act Number 5 of 1986 on State Administrative Judgment actually cannot be compared or inserted into a set of concepts of Government Administrative Judgment, known as State Administrative Judgment and latterly called as Judgment, as the comprehension/connotation/intention of both Acts is different. An object is likely to be inserted into a set of conception if it has similar characteristics (principium dictum de omni); the characteristics of the group is similar to the characteristics of the members, as well as the vice versa (principium dictum de nullo). Jhon Stuart Mill proposed 3 (three) association law. First, the similarity between two things that may cause association. Second, the further contiguity of two things and other things may make association. Third, the intention of connectedness between two things may make association.

Figure 2: The Concept Of Judgment Article 1 Subsection (7)

There is different comprehension/connotation/intention between State Administrative Judgment based on Article 1 subsection (9) of Act Number 51 of 2009 about the Second Amendment of Act Number 5 of 1986 on State Administrative Court and the Government Administration Judgment, known as State Administrative Judgment and latterly called as Judgment, based on Article 1 subsection (7) of Act Number 30 of 2014 on Government Administration. The differences may reveal legal consequences toward the range of category of Judgment.

Conclusion

The extension of the absolute competence after the enactment of Act Number 30 of 2014 on Government Administration involves several extensions of materials as set in Government Administration Act and, in relation to the absolute competence, it deals with the examination of any misuse of authority in the establishment of State Administrative Judgment, the materials to judge the object of Positive Fictitious dispute and the materials of factual actions by Government Administration Officials and the authority of the State Administrative Court to conduct examination on people accusation of not having any solution for the appeal from the officials.

The juridical implication of the extending the absolute competence, particularly in practical setting, after the enactment of Act Number 30 of 2014 on Government Administration is the existence of two juridical institutions that seem to have the same authority to examine the elements of authority abuse; “Tipikor” Court-a Court for corruption cases and State Administrative Court.

As the perspective of procedural law of State Administrative Court after the enactment of Act Number 30 of 2014 on Government Administration is the vacuum of law in both the State Administrative Court and the law of the state Government Administration Court that relates to the materials of examination on any misuse of authority, the Supreme Court of the Republic of Indonesia has established Regulation of the Supreme Court No. 4 (2015) on the Procedure Guidelines in Examining the Misuse of Authority, as well as Regulation of the Supreme Court Number 5 (2015) on Procedure Guidelines to Have Judgment of Receiving an Application in order to Have Judgment and/or Action from the Government Official or Agency.

Recommendation

With Government Administration Act, many extensions of materials that are not set in the law of the State Government Administration Court may become the absolute competence of the State Administrative Court to examine and make judgment. Therefore, in order to make people have better understanding on the extension of, Constitution Government Administration the materials that relate to the absolute competence of the State Administrative Court in Acts of State Administrative Court should be extended by adding some Articles and Acts of State Administrative Court, especially ones that relate to the extension, as set in Government Administration Act.

It needs to have boundaries in the form of clear organization in Government Administration Act that deals with the scope of authority of the State Administrative Court to examine any misuse of authority, so that both authorized Courts - State Administrative Court and Tipikor-will not feel that they are struggling for authority as they have the same authority to examine the elements of authority abuse.

It needs to add more substance of Article in Acts of State Administrative Court that deals with the examination of the elements of authority abuse, the materials to judge the object of Positive Fictitious Dispute and the materials of factual actions by the State Administrative Officials, as well as the authority of State Administrative Court to examine the public accusation of not having any solution for the appeal from the officials, so that it will not be set in Regulation of the Supreme Court Number 4 (2015) on the Procedure Guidelines in Examining the Misuse of Authority, as well as Regulation of the Supreme Court Number 5 (2015) on Procedure Guidelines to Have Judgment of Receiving an Application in order to Have Judgment and/or Action from the Government Official or Agency.

References