So, what is the legal basis for measuring the existence of unlawful acts by authorities if we cannot use the concept of unlawful acts in civil and criminal law?

Quoting the opinion of Ridwan HR, in his book entitled State Administrative Law, the measure of the existence of unlawful acts can be seen in 2 court decisions, namely Decision No. 66K/Sip/1952 and Decision Number 838K/Sip/1970. These two decisions have different scopes, but they both have similar considerations in assessing onrechtmatige overheidsdaad.

In both decisions, there are 2 parameters of unlawful acts by the authorities. The first parameter is the formal law in force. If using the current developing legal concept, the context of "formal law" in both decisions can be extended to "laws and regulations" because unlawful acts by the authorities can arise in the issuance of state administrative decisions that use many legal instruments other than laws.

The second parameter is the interest in society. Unfortunately, there is no further explanation regarding the concrete form of the public interest. This raises questions such as, how far can the public interest be affected so that a government action is considered worthy as a onrechtmatige overheidsdaad? Then, what kind of community segments can be affected by an act?

Concept Renewal

Some outstanding questions regarding efforts to process unlawful acts by the authorities may be answered with the enactment of the Government Administration Law and PERMA 2/2019.

According to Hotma Sibuea, in his book entitled Asas Negara Hukum, Peraturan Kebijakan, dan Asas-Asas Umum Pemerintahan yang Baik, the provisions in the Government Administration Law become the basis for assessing the existence of onrechtmatige overheidsdaad. These provisions are the provisions regarding the general principles of good governance ("AUPB").

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

Furthermore, Article 10 paragraph (1) of the Government Administration Law 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 not abusing authority,
  6. Principle of transparency,
  7. Principle of public interest, and
  8. Principle of good service.

Interestingly, paragraph (2) of this article authorizes judges to try cases of unlawful acts by authorities using other principles as a basis for consideration.

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

The enactment of PERMA 2/2019 brings a new nuance. This regulation explicitly states that unlawful acts by authorities can only be tried 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 which are underway must be declared rejected and transferred to the PTUN.

Not much different from the state administrative court process 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 to be an unlawful act. The basis of the lawsuit can refer to applicable laws and regulations and/or AUPB.

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

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

If the government action harms the interests of a party, the party can 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. As for the plaintiff, it is a person or legal entity that 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 verdict 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 can also burden the defendant with providing compensation and/or rehabilitation.

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