Positive Fictitious on KTUN in the Government Administration Law

In Article 53 paragraphs (4) and (5) of the UU AP, it regulates the rights for legal subjects of applicants to obtain the determination and/or implementation of KTUN by submitting an application to the State Administrative Court. When the application to the PTUN is granted, then based on Article 53 paragraph (6) of the law a quo, the State Administrative Body and/or Official is obliged to stipulate the KTUN no later than 5 working days since the PTUN decision is determined.

Based on MA Regulation No. 8 of 2017 concerning Guidelines for Proceedings to Obtain a Decision on Acceptance of Applications to Obtain Decisions and/or Actions of Government Bodies or Officials which regulates the application process based on the implementation of Article 53 of the Government Administration Law submitted to the PTUN. This provision applies the principle of “Positive Fictitious” regarding the decisions or actions of government officials in the context of public services to meet the needs of the community in the administration of government.

Thus, the concept and nature of KTUN in Article 87 of the UU AP has been determined regarding the expansion of KTUN which was previously regulated in the UU PTUN. The expansion includes: written stipulations related to factual actions, Decisions of TUN Bodies and/or Officials in the executive, legislative, judicial, and other state administrators, referring to laws and regulations and AUPB, being final with a broader meaning, decisions that still have the potential to cause a legal consequence, and/or decisions that apply to the public.

Differences in Settlement of Negative Fictitious and Positive Fictitious KTUN Disputes

The legal basis governing the filing of lawsuits with negative fictitious KTUN as the object is regulated in the provisions of Article 53 of the UU PTUN. On the other hand, the submission of applications with positive fictitious KTUN as the object is regulated in Article 53 of the UU AP and MA Regulation No. 8 of 2017. The meaning of the application in the MA Regulation leads to an application in the form of a dispute between the parties, both the applicant (individual or private legal entity) against the respondent (government administrative body and/or official). Both the lawsuit and the application submitted must go through the same procedure in terms of resolving the case, even the final result of the two different terms is in the form of a judge's decision.

However, after the enactment of the Job Creation Law, the concept of fictitious decisions as regulated in Article 53 of the UU AP has the position of being granted legally only. Some judges use an alternative in the form of using Article 10 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power which regulates that judges may not refuse cases on the grounds that there is no law or the norm is vague.

Positive fictitious KTUN is immediately granted legally because with the existence of SEMA Number 5 of 2021 it has been emphasized that the PTUN is not authorized to examine and adjudicate cases of positive fictitious applications. Therefore, an institution is needed that is authorized to adjudicate applications for positive fictitious KTUN in the form of administrative efforts to test the validity of the issuance of the KTUN applied for and deemed legally granted.

Expansion of the Meaning of KTUN Dispute Objects in the Government Administration Law

Article 1 number 8 of the AP Law explains that government administrative actions are actions by Government Officials or other state administrators to carry out and/or not carry out concrete actions in the context of government administration, both within the legislative, judicial, and other state administrators. The legal actions of the Administrative Body or Official in these provisions have the following elements:

  1. The action is carried out by government apparatus in their position as rulers and as state equipment;
  2. The action is carried out in order to carry out government functions;
  3. The action is intended as a means to create legal consequences in the field of state administrative law;
  4. The action is carried out in the public interest; and
  5. The action is based on government norms and authorities.

Thus, the actions/deeds of the Government in the study of State Administrative Law consist of: carrying out material acts (materiele daad), issuing regulations (regeling); and issuing decisions/stipulations (beschikking).

The AP Law expands the object of TUN disputes by making Material Acts (Materiele Daad) as part of the definition of KTUN. This confirms that it is not only limited to the realm of making, issuing and validating KTUN, but has referred to factual (material) actions in the context of implementing KTUN to carry out government functions. In the perspective of the AP Law, government action is not enough to see the element of "will" from a TUN Body/Official alone, but what must be observed is the objective condition as a result of a government action. For example, factual actions objectively cause harm to the community.

KTUN in the Government Administration Law

In addition, according to the AP Law, KTUN is not only a decision that has legal consequences but also a decision that has the potential to have legal consequences can be used as an object of state administrative dispute. The essence of KTUN in the PTUN Law is actually still recognized for its relevance as long as it is interpreted more broadly in accordance with the intent of Article 87 of the AP Law. The elements of KTUN in the AP Law, especially Article 87, consist of the following:

  1. Written stipulations including factual actions;
  2. Issued by state administrative bodies or officials within the executive, legislative, judicial, and other state administrators;
  3. Contains state administrative legal actions;
  4. Based on laws and regulations and GPGP (General Principles of Good Governance);
  5. Concrete, individual, and final in the broad sense;
  6. Potentially has legal consequences;
  7. Applies to the community.

Based on the principle of lex specialis derogat legi generalis which means that laws and regulations governing more specific regulations will override regulations of a more general nature and are applied if there are specific provisions that conflict with general provisions. Thus, the regulation of KTUN in Article 87 of the AP Law is categorically not contradictory, but rather changes the meaning and/or expands its meaning, so that the principle of lex specialis derogat legi generalis cannot be applied to eliminate the validity of the provisions of Article 1 number 3 of the PTUN Law.

Legality of KTUN Determination

A KTUN is said to have legality if it is carried out by an authorized Agency/Official, namely an agency/official who is given the authority to act, either by attribution, or delegated by delegation or mandate. The validity of a KTUN is regulated in Article 8 of the AP Law, namely:

  1. Every Decision and/or Action must be determined and/or carried out by an authorized Government Agency and/or Official;
  2. Government Agencies and/or Officials in using their authority are obliged to be based on laws and regulations and GPGP;
  3. Government Administrative Officials are prohibited from abusing their authority in stipulating and/or carrying out Decisions and/or Actions.

According to Kuntjoro Purbopranoto, in order for a decision to be a valid decision, there are two conditions that must be met, namely material and formal conditions. Material requirements include: a) the government instrument that makes the decision must be authorized; b) in the will of the government instrument that makes the decision there must be no juridical deficiencies; c) the decision must be given the form stipulated in the regulations that form the basis for it and its formation must also pay attention to the procedure for making decisions if the procedure is expressly stipulated in the regulations (rechtmatig); d) the content and purpose of the decision must be in accordance with the content and purpose to be achieved.

Meanwhile, the formal requirements for the validity of the decision include: a) the conditions determined in connection with the preparation of the decision and in connection with the manner in which the decision is made must be fulfilled; b) it must be given the specified form; c) the conditions relating to the implementation of the decision are met; d) the time period must be determined between the emergence of the rights that caused the decision to be made and must not be remembered.

Authority of the State Administrative Court in the Government Administration Law

Through the AP Law, there is an expansion of the PTUN's authority, namely handling applications related to allegations of abuse of authority committed by the Applicant who is a state administrative body or official. The submission of a government administration dispute lawsuit that has been registered with the general court, but has not been examined, with the enactment of the law is transferred and resolved by the PTUN. If it has been examined by the General Court, with the enactment of the AP Law, it will still be decided and resolved by the General Court, including the execution of the court's decision.

Following up on the enactment of the AP Law, the Supreme Court issued Supreme Court Regulation Number 2 of 2019 concerning Guidelines for Resolving Disputes over Government Actions and Authority to Adjudicate Unlawful Acts by Government Agencies and/or Officials (Onrechmatige Overheidsdaad) which essentially regulates that disputes over unlawful acts by onrechmatige overheidsdaad are government actions that fall under the authority of administrative justice based on the AP Law.

Article 87 letter a of the AP Law as a reaffirmation that unlawful acts committed by the Government can be examined and resolved in the PTUN, which tests the decisions and/or actions of the TUN Agency or Official based on legislation in accordance with the AP Law, legislation in accordance with the basis of the plaintiff's claim and the AUPB regulated in Article 10 paragraphs (1) and (2) of the AP Law.

To provide legal certainty regarding the use of AUPB as the basis for KTUN and provide more detailed guidelines, it is necessary to form a Perma that regulates guidelines for judges in using AUPB as a touchstone for KTUN.

References

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