Legal Literacy- This article discusses three principles in the procedural law of state administrative courts (PTUN), namely the principle of presumption of rechtmatig (vermoeden van rechtmatigheid), the principle of active judge (free proof), and the principle that decisions are erga omnes. This article explains the provisions in Law Number 5 of 1986 concerning State Administrative Courts (UU PTUN) and Law Number 30 of 2014 concerning Government Administration related to these three principles. This article also discusses the implications of these three principles in the practice of PTUN procedural law.

1. Principle of Presumption of Rechtmatig (Vermoeden van Rechtmatigheid, Praesumptio Iustae Causa)

The principle of presumption of rechtmatig means that every action of the authority or government must always be considered correct until it is canceled, this is stated in the provisions of Article 67 paragraph (1) of Law Number 5 of 1986 concerning State Administrative Courts (UU PTUN). This principle is also closely related to the fact that a lawsuit basically cannot postpone the implementation of the Disputed State Administrative Decision (KTUN), unless there is an urgent interest from the plaintiff (Article 67 paragraph (1) and paragraph (4) letter a of the UU PTUN).

Resistance to a determination that is equipped with considerations that the lawsuit filed is declared unacceptable or unfounded can be submitted to the Court within a period of 14 (fourteen) days after it is pronounced, examined and decided by the Court in a summary proceeding (Article 62 paragraph (4) of the UU PTUN).

Meanwhile, the provisions regarding the cancellation of KTUN can be found in Article 66 and Article 67 of Law Number 30 of 2014 concerning Administration Governance. Basically, the cancellation of KTUN can be done if there is a defect in authority, a defect in procedure, and/or a defect in substance. In the event that the KTUN is canceled, a new KTUN must be established by the TUN body or official by including the legal basis cancellation and paying attention to the General Principles of Good Governance (AUPB). This confirms that the KTUN can only be canceled/not null and void by law.

2. Principle of Active Judge (Free Proof)

In Article 62 of the UU PTUN, it is stated that before an examination of the subject matter of the dispute is carried out, the judge holds a deliberation meeting to determine whether the lawsuit is declared inadmissible or unfounded, which is equipped with considerations.

Then in Article 63 of the UU PTUN, it is also explained regarding the preparatory examination to find out whether the plaintiff's lawsuit is unclear, so that the plaintiff needs to complete it. Thus, this principle gives a role to the judge in the trial process to obtain a material truth, therefore the UU PTUN leads to free proof.

The provisions of Article 80 of the UU PTUN state that for the smooth running of the dispute examination, the Presiding Judge has the right at the trial to provide instructions to the disputing parties regarding legal remedies and evidence that can be used by the parties in the dispute. This is related to the free proof by the judge, where the judge determines what must be proven, the burden of proof and the assessment of proof, and for the validity of the proof, at least 2 (two) pieces of evidence are required based on the Judge's belief (Article 107 of the UU PTUN).

In fact, if it is deemed necessary to overcome the difficulties of the plaintiff in obtaining the necessary information or data, the Judge may order the TUN body or official as the defendant to provide the necessary information or data. This is explicitly stated in Article 85 of the UU PTUN.

3. Principle of Decision is Erga Omnes

In PTUN procedural law, court decisions that have permanent legal force contain the nature of erga omnes, meaning that it applies to everyone and is not only limited to those involved in the case. In other words, a PTUN decision that has permanent legal force is basically a legal decision that is of a public legal nature.

The nature of erga omnes of the PTUN decision that has permanent legal force can harm well-intentioned third parties. For example, on land certificates that are already in the hands of third parties or at a bank that is used as credit collateral, and so on. Thus, the provisions of Article 83 of the UU PTUN which provide an opportunity for third parties to submit an intervention application become very important in order to provide legal protection.

4. Principle of Unrecognized Counterclaim

In administrative court procedure, a counterclaim is not recognized because the existence of a counterclaim would reverse the original positions of the parties. The positions of the parties in administrative court procedure are definitive and cannot be changed. The plaintiff remains an individual or private legal entity, civil law, while the defendant remains an administrative body or official.

This is clearly regulated in the provisions of Article 1 number 4 of the State Administrative Court Law which states that: “A State Administrative Dispute is a dispute arising 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 applicable laws and regulations.”

References

  • Philipus M. Hadjon, “Governance According to Law”, Dies Natalis Speech and Graduation of Bachelor S1 and DIII Program of Widya Karya Catholic University, Malang, June 27, 1992.
  • Zairin Harahap, “State Administrative Court Procedure Law”, Depok: PT. Raja Grafindo Persada, 2019.