Legal Literacy - The government can commit unlawful acts. This is called an unlawful act by the government. However, its nature is slightly different from the arrangements in civil and criminal law.

Background

Unlawful acts by the government are a development of the classical legal theory of unlawful acts, namely actions legal subject that are contrary to law and cause certain losses.

Specifically, unlawful acts are found in the concepts of civil law and criminal law.

In civil law, unlawful acts (onrechtmatige daad) are qualified as an act of a legal subject regulated in Article 1365 of the Civil Code ("KUHPER"). This is different from criminal law which tends to classify unlawful acts (wederrechtelijk) as one of the elements of an offense that harms the public interest.

However, unlawful acts are no longer merely attached to individuals or legal entities as the concept according to the two branches of law above. Currently, unlawful acts can also be considered inherent in actions taken by the government. This is referred to as an unlawful act by the government (onrechtmatige overheidsdaad).

Recognition of onrechtmatige overheidsdaad is reinforced through Supreme Court Regulation Number 2 of 2019 concerning Guidelines for Resolving Disputes over Government Actions and Authority to Adjudicate Unlawful Acts by Government Agencies and/or Officials ("PERMA 2/2019").

If we trace these regulations, we will see that, essentially, unlawful acts by the government are acts that are identical to the provisions of Article 1365 of the KUHPer. It's just that this act is carried out by the government and is classified as a state administrative decision.

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.

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").