Unlawful Acts by the Government

Concept Renewal

Several lingering questions regarding efforts to prosecute unlawful acts by authorities may be answered with the enactment of the Law on Government Administration and PERMA 2/2019.

According to Hotma Sibuea, in his book entitled AThe principle of the Rule of Law, Policy Regulations, and the General Principles of Good Governance, the provisions in the Law on Government Administration serve as a basis for assessing the existence of onrechtmatige overheidsdaad. These provisions are those concerning the general principles of good governance ("AUPB").

Article 1 paragraph 17 of the Law on Government Administration states that AUPB can be a parameter for the validity of government actions in administering government, especially in issuing state administrative decisions.

Furthermore, Article 10 paragraph (1) of the Law on Government Administration specifically regulates the form of AUPB as follows.

1. The principle of legal certainty,
2. The principle of benefit,
3. The principle of impartiality,
4. The principle of prudence,
5. The principle of non-abuse of authority,
6. The principle of transparency,
7. The principle of public interest, and
8. The principle of good service.

Interestingly, paragraph (2) of this article grants the judge the authority to adjudicate cases of unlawful acts by authorities using other principles as a basis for consideration.

In contrast to the Law on Government Administration, which provides a new basis, PERMA 2/2019 regulates the technical aspects of filing a lawsuit if the interested party desires a judicial process for unlawful acts by authorities.

The enactment of PERMA 2/2019 brings a new nuance. This regulation explicitly states that unlawful acts by authorities can only be adjudicated through the state administrative court ("PTUN"). Thus, civil court and, perhaps, criminal court mechanisms no longer apply. This regulation also affirms that judicial processes other than through the PTUN mechanism and currently underway must be declared rejected and transferred to the PTUN.

Not much different from state administrative court proceedings in general, a request for judicial review of onrechtmatige overheidsdaad is carried out by filing a lawsuit with the state administrative court. The submission is made within 90 days after the implementation of the government action deemed unlawful. The basis of the lawsuit can refer to applicable laws and regulations and/or the General Principles of Good Governance.

Unfortunately, neither the Law on Government Administration nor PERMA 2/2019 regulates provisions regarding the definition of unlawful acts by the authorities. To understand whether a government action qualifies as onrechtmatige overheidsdaad, we can only interpret it from relevant provisions.

Initially, an unlawful act by the authorities begins with the existence of a "government action." Article 1 number 1 of PERMA 2/2019 defines government action as an act by a government official or other state administrator to carry out and/or not carry out concrete actions in the context of government administration.

If the government action harms the interests of a party, that party may file a lawsuit with the State Administrative Court with a request demanding the government action. Later, if this lawsuit has been accepted by the State Administrative Court, what is called a dispute will arise onrechtmatige overheidsdaad. The plaintiff is the person or legal entity who feels aggrieved by the government action, while the defendant is the government that took the government action.

In the final process of the trial, the court's decision may contain a ruling that grants, rejects, does not accept, or dismisses the lawsuit filed by the plaintiff. If the lawsuit is granted, the court may require the government to take government action, not take government action, or stop government action. In the decision, the court may also burden the defendant with the provision of compensation and/or rehabilitation.

The compensation mechanism in the lawsuit onrechtmatige overheidsdaad no longer refers to Article 1365 of the Civil Code and other related provisions. Now, the compensation mechanism refers to the provisions in Law Number 5 of 1986 concerning State Administrative Courts ("UU PTUN") which are specifically regulated through Government Regulation Number 43 of 1991 concerning Compensation and Procedures for Implementation in State Administrative Courts ("PP 43/1991").