Legal Literacy - Learn practically about the structure of administrative justice to resolve state administrative disputes.

What is a State Administrative Dispute?

A state administrative dispute is a dispute that arises in the administrative field due to the issuance of a state administrative decision.

In general, the legal basis regarding state administrative disputes is contained in Law Number 5 of 1986 concerning State Administrative Courts ("UU PTUN") which has undergone the first amendment through Law 9/2004 and the second amendment through Law 51/2009.

Article 1 number 4 of the UU PTUN regulates the definition of a state administrative dispute as follows.

A State Administrative Dispute is a dispute that arises in the field of State Administration between individuals or private legal entities and State Administrative Bodies or Officials, both at the central and regional levels, as a result of the issuance of a State Administrative Decision, including employment disputes based on prevailing laws and regulations.

Furthermore, from the definition above, there are several elements that we can draw to understand a "dispute" as a "state administrative dispute", namely:

  1. The dispute is in the realm of state administration, including disputes in the field of employment based on prevailing laws and regulations,
  2. The dispute occurs between individuals or legal entities and state administrative bodies or officials, and
  3. The dispute arises because of a state administrative decision.

As a note, state administrative disputes involve many authorities, such as state administrative bodies or officials ("B/P TUN") and State Administrative Courts ("PTUN").

B/P TUN is bound by government administration regulations. In Indonesia, the legal basis for government administration is regulated through Law Number 30 of 2014 concerning Government Administration ("UU Administrasi Pemerintahan").

B/P TUN is also bound by institutional-level administrative regulations that specifically grant them the authority to carry out government administration. There are many B/P TUN in the government structure with their own institutional rules. For example, officials in the field of the Ministry of Health will be bound by regulations in the field of the Ministry of Health. The same logic applies to officials in the field of the Ministry of Finance, state civil apparatus, TNI/POLRI, and the like.

Furthermore, PTUN is guided by other laws and regulations besides the UU PTUN and its amendments, such as Supreme Court Regulations ("PERMA") and Supreme Court Circulars ("SEMA").

Therefore, to understand state administrative disputes, it is not enough to only understand the UU PTUN. We also need to understand the regulations that guide B/P TUN and PTUN.

Introduction to the Judicial Structure

A state administrative dispute is an administrative dispute. This means that this dispute will only be an administrative matter that impacts all interested parties.

Theoretically, administrative disputes involve policies issued by the government in an effort to carry out government administration.

For example, the government issues a policy to dismiss someone as a state civil apparatus in the government structure. The dismissal of the state civil apparatus is confirmed through a decree of dismissal of the state civil apparatus. However, the dismissed apparatus does not accept the dismissal decision and sues the decision. At this point, an administrative dispute arises; there is an administrative issue from the state administrative decision that is questioned by the parties concerned and affected by the decision.

The authority to adjudicate state administrative disputes is the state administrative court, namely the PTUN for disputes adjudicated at the first level, then the High Administrative Court for disputes adjudicated at the appeal level.

In the judicial process, the dispute begins with the process of filing a lawsuit. Article 1 number 5 of the UU PTUN states that the lawsuit is initially filed by the plaintiff to the PTUN. Later, the PTUN will issue a decision on the lawsuit.

Object of State Administrative Dispute

Previously, it was mentioned that a state administrative dispute can arise due to a state administrative decision. See further discussion regarding "state administrative decisions" in this article.

Subjects of State Administrative Dispute

Based on the definition of state administrative dispute according to the UU PTUN, there are 2 subjects of dispute. The first is individuals or legal entities. The second is B/P TUN.

Article 1 number 6 of the UU PTUN affirms that B/P TUN will always be the defendant. This is even reinforced through the provisions of Article 1 number 12 of Law 51/2009. This is logical because only B/P TUN can issue state administrative decisions that are the object of the dispute.

Still based on the provisions of the same UU PTUN, the plaintiff is an individual or a legal entity. However, the status as an "individual" or "legal entity" is not enough. To file a lawsuit, the plaintiff must be a party who has legal standing (legal standing).

In his book entitled Efforts to Understand the Law on State Administrative CourtsIndroharto stated that legal standing can be measured based on the impact experienced by the plaintiff due to the issuance of a state administrative decision. The impact of the decision must be direct and individual. Direct impact means an impact that does not arise through a specific intermediary or a derivative impact. Individual impact means an impact that is only experienced by the plaintiff and not by other parties.

An example case of a lawsuit filed by a plaintiff who does not have legal standing is found in Decision No. 36/G/2021/PTUN.PDG. In this case, the panel of judges stated that the plaintiff did not have legal standing because the object of the lawsuit, in the form of a land certificate issued by the relevant land agency, did not have a directly detrimental impact on the plaintiff. Consequently, the lawsuit was declared inadmissible.

Administrative Efforts

Before filing a lawsuit with the State Administrative Court (PTUN), interested parties may first file administrative efforts regarding the issuance of a state administrative decision.

The definition of administrative efforts is regulated in Article 1 number 16 of the Law on Government Administration which reads as follows.

Administrative Effort is a dispute resolution process carried out within the Government Administration as a result of the issuance of a Detrimental Decision and/or Action.

Furthermore, the option to file administrative efforts is regulated in Article 75 paragraph (1) of the Law on Government Administration which reads as follows.

Members of the Public who are harmed by a Decision and/or Action may submit Administrative Efforts to the Government Official or Superior Official who stipulates and/or takes the Decision and/or Action.

Further arrangements can be found in Chapter X regarding Administrative Efforts of the Law on Government Administration. Essentially, this provision regulates several administrative effort mechanisms, such as the form of effort consisting of "objection" and "appeal", the authority to be addressed, and the specified time period.

According to the provisions of the Law on Government Administration, administrative efforts are an optional step. This means that interested parties can take this effort or can directly file a lawsuit with the PTUN.

However, the optional nature of these administrative efforts has been annulled through several provisions. For example, Article 48 of the Law on PTUN stipulates that the PTUN is only authorized to adjudicate state administrative disputes if the interested parties have completed administrative efforts first. This means that administrative efforts are no longer an option, but an obligatory effort to take.

The obligation to take administrative efforts is also reinforced through Supreme Court Regulation Number 1 of 2018 ("PERMA 6/2018"). Article 3 of PERMA 6/2018 stipulates that the PTUN is only authorized to adjudicate state administrative disputes after the plaintiff has carried out the administrative efforts determined through the Law on Government Administration or other relevant and still valid laws and regulations.

Note that the obligation to take administrative efforts is relative. The plaintiff only has to take administrative efforts if the laws and regulations relating to the subject matter of the lawsuit do require administrative efforts. This obligation also needs to be fulfilled if the laws and regulations do not regulate the obligation to take administrative efforts, so the reference is Chapter X of the Law on Government Administration. The plaintiff can only be freed from administrative efforts and can directly file a lawsuit if the related laws and regulations do regulate it.

Adjudication Authority

In state administrative disputes, the authority to adjudicate is closely related to the authority possessed by the PTUN to adjudicate disputes.

Through a publication entitled Competence of the State Administrative Court in the Judicial System in Indonesia, Supreme Court Justice Yodi Martono Wahyunadi stated that this adjudicating authority is divided into 2 forms, namely absolute competence and relative competence.

Absolute competence relates to the substance of the case. Here, the PTUN has absolute authority to adjudicate disputes that are only in the form of state administrative disputes. So, civil, criminal, religious, or military disputes are not disputes that can be adjudicated by the PTUN.

An easy way to determine the absolute competence of the PTUN over a dispute is to check whether the dispute involves a state administrative decision. However, the relevance of the state administrative decision in the dispute also needs to be evaluated because, in some cases, the existence of a state administrative decision is not always an indicator of the absolute authority of the PTUN to examine the dispute.

Meanwhile, relative competence relates to the location of the court. Here, the issue is not the substance of the case, but rather the area where the case is examined.

A person may file a lawsuit in a state administrative dispute with the PTUN, but incorrectly determine that the authorized PTUN is located in their place of residence. Therefore, we need to be careful with the location of the PTUN that is authorized to examine the dispute.

Relative competence is regulated in Article 54 of the Law on PTUN. In short, this article regulates relative competence in several forms as follows.

  1. The PTUN that is authorized to examine the dispute is the PTUN that is located in the area that includes the domicile of the plaintiff and the defendant.
  2. If the plaintiff and the defendant are not in the same area, the authorized PTUN is the PTUN that is located in the area of the plaintiff's domicile.
  3. If there is more than 1 defendant and both are in different places, the authorized PTUN is the PTUN that is located in one of the areas of domicile of one of the defendants.
  4. If the dispute is regulated through government regulations, the authorized PTUN may be the PTUN that is located in the area of the plaintiff's domicile.
  5. If the plaintiff and defendant are abroad, the authorized PTUN is the court in the Jakarta area.
  6. If the plaintiff is abroad and the defendant is in the country, the authorized PTUN is the PTUN that is located in the area of the defendant's domicile.

Time Limit

The time limit is related to the deadline in court procedures. Knowing the time limit is important for parties filing a lawsuit, even during administrative efforts.

If the plaintiff pursues administrative efforts first before filing a lawsuit, the plaintiff has a grace period based on the provisions of Article 77 paragraph (1) and Article 78 paragraph (1) of the Law on Government Administration, which essentially state the following.

  1. The plaintiff has a deadline of 21 days to file an objection since the announcement of the state administrative decision.
  2. The plaintiff has a deadline of 10 days to file an appeal if the official issues a rejection decision on the objection, and this time is calculated from when the rejection decision has been received by the plaintiff.

SEMA 5/2021 regulates additional provisions, namely, if the objection and/or appeal submitted by the plaintiff goes to the incorrect State Administrative Court/Administrative Court, the time period from the objection and/or appeal submission process will not be counted if the plaintiff will submit the objection and/or appeal once again to the authorized State Administrative Court/Administrative Court.

If the plaintiff directly files a lawsuit with the State Administrative Court, the plaintiff has a deadline of 90 days since the state administrative decision that is the object of the lawsuit was announced by the State Administrative Court/Administrative Court. Article 5 paragraph (1) of PERMA 6/2018 specifically regulates that the calculation of this deadline starts from when the state administrative decision is received by the plaintiff.

Furthermore, through SEMA 5/2021, the Supreme Court stated that even though the plaintiff has passed the 21-day deadline to file an objection, this does not eliminate the plaintiff's right to file a lawsuit with the State Administrative Court as long as the plaintiff files the lawsuit within a period of 90 days as described previously.

The author argues that the provisions in SEMA 5/2021 above are quite confusing. If the plaintiff does not file an objection after the 21-day period for the issuance of a state administrative decision, the plaintiff is automatically considered to have not pursued administrative efforts. Is it not futile to give the plaintiff the flexibility to file a lawsuit with the State Administrative Court with the consequence that the lawsuit is declared premature, if based on other laws and regulations related to the subject matter of the lawsuit, the plaintiff is required to pursue administrative efforts first?

In this case, SEMA 5/2021 should provide additional provisions that become requirements for filing a lawsuit. For example, the plaintiff can file a lawsuit even after 21 days from the issuance of the decision, but still within the 90-day period according to the provisions of the State Administrative Court Law, provided that the laws and regulations that bind the subject matter of the lawsuit do not require administrative efforts first before filing a lawsuit with the State Administrative Court.

Substance of the Lawsuit

The State Administrative Court Law regulates several requirements that must be met by the plaintiff in the substance of the lawsuit.

First of all, the lawsuit must contain the identity of the plaintiff, the identity of the defendant, the basis of the lawsuit, the request, the power of attorney if the lawsuit is made and signed by the plaintiff's attorney, and the attachment of the state administrative decision that is the object of the lawsuit. This is regulated in Article 56 of the State Administrative Court Law.

The form of "request" in the lawsuit is the petitum which relates to the status of the decision. Article 53 of Law 9/2004 regulates that the petitum of the lawsuit can be in the form of a request that the state administrative decision that is the object of the lawsuit be declared null and void, then it can be accompanied by a claim for compensation and/or rehabilitation.

The petitum of the lawsuit is certainly based on the description of the posita that precedes it. Article 53 of Law 9/2004 regulates that the posita of the lawsuit can contain 2 reasons for filing the lawsuit, namely that the state administrative decision being sued is contrary to the prevailing laws and regulations; or that the state administrative decision being sued is contrary to the general principles of good governance.

Form of Verdict

Article 97 paragraphs (8) to (10) of the State Administrative Court Law regulates that the decision handed down by the State Administrative Court on a state administrative dispute can have various forms of verdict with their own consequences.

First of all, the form of the verdict is as follows.

  1. The lawsuit is rejected,
  2. The lawsuit is not accepted,
  3. The lawsuit is dropped, and
  4. The lawsuit is granted.

Furthermore, if the verdict is that the lawsuit is granted, the verdict may include an order to the State Administrative Court/Administrative Body that is the defendant to issue a new state administrative decision that will have an impact on the state administrative decision that is the object of the lawsuit.

The new state administrative decision from the State Administrative Court/Administrative Body can be in the form of:

  1. A decision containing the revocation of the decision that is the object of the lawsuit;
  2. A decision that not only contains the revocation of the decision that is the object of the lawsuit, but also contains the issuance of a new decision;
  3. A decision containing the issuance of a new decision that affirms a fictitious negative decision.

Furthermore, the verdict may include the imposition of compensation, and the granting of rehabilitation for the plaintiff in a dispute involving employment.

The plaintiff or defendant in a state administrative dispute who is not satisfied with the decision of the State Administrative Court can file a legal recourse. This legal recourse consists of appeals, cassation, and judicial review.

Appeals are submitted to the High Court of State Administration. This is different from the State Administrative Court which examines at the first level. Appeals have a period of 14 days after the decision from the State Administrative Court is notified to the parties.

Cassation and judicial review are submitted to the Supreme Court. The cassation period is 14 days after the decision from the appeal effort is notified to the parties. The judicial review period is 14 days after the decision from the cassation effort is notified to the parties.