Opinions Opinion

Unlawful Acts by the Authorities

Ramos Perisai

Contributor

17 Feb 2024 · 11:00 17 February 2024 11:00 WIB 8 minutes reading time: 8 minutes 4 read

The government can commit unlawful acts. This is called unlawful acts by the authorities. However, its nature is somewhat different from the arrangements in civil and criminal law.

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Table of Contents

Background
The Essence of Unlawful Acts by Authorities
Concept Renewal

Section 2/3: The Essence of Unlawful Acts by Authorities

The Essence of Unlawful Acts by Authorities

When organizing government administration, the government has the authority to issue state administrative decisions. These decisions are issued based on the provisions of relevant laws and regulations, especially Law Number 30 of 2014 concerning Government Administration ("Government Administration Law").

Decisions are issued by the government either on the government's initiative or based on applications by interested parties. Once a decision has been issued, it will have legal consequences for the wider community. Specifically, for decisions issued based on applications, the resulting legal consequences generally only affect the government that issued the decision and the party requesting the issuance of the decision.

At certain moments, and regardless of whether it is issued based on initiation or application, a decision can have detrimental consequences. This loss is borne by the party targeted in the decision. It is not uncommon for the same loss to be borne by a third party who has some connection with the issuance of the decision.

State administrative decisions issued by the government that harm the public are a reflection of unlawful acts by authorities.

In the past, the interpretation of unlawful acts by authorities was identical to unlawful acts regulated in Article 1365 of the Civil Code. As a result, to understand the elements of onrechtmatige overheidsdaad, we can refer to the elements of onrechtmatige daad.

Onrechmatige daad has 5 elements, namely the existence of an act, the act is against the law, the existence of fault, the existence of loss, and the existence of a causal relationship between the fault and the loss. These five elements also become indicators of unlawful acts by authorities.

However, unlawful acts by authorities involve government authority in administration of government. It is difficult to equate the government as an individual or legal entity capable of carrying out civil legal actions so that it can become a defendant like in civil court mechanisms. In exercising its authority, the government will take actions that impact the interests of the community. For this reason, the concept of unlawful acts in civil law does not offer an elaborative legal basis.

Unlawful acts by authorities also cannot use the concept in criminal law and be tried by criminal court mechanisms. Indeed, criminal acts can be disguised in administrative actions, but it should be noted that not all issuances of state administrative decisions can become criminal acts. Moreover, the reach of criminal courts in the administration of government, especially in the issuance of state administrative decisions, tends to be the competence of state administrative courts.