Legal Literacy - The government can commit unlawful acts. This is called unlawful acts by public authorities. However, its nature is slightly different from the arrangements in civil and criminal law.
Background
Unlawful acts by public authorities is a development of the classical legal theory regarding unlawful acts, namely the actions of a legal subject that are contrary to the law and cause certain losses.
Specifically, unlawful acts are found in the concepts of civil law and criminal law.
In civil law, tort (onrechtmatige daad) is 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 conceptualized by the two branches of law above. Currently, unlawful acts can also be considered attached to actions taken by the government. This is referred to as unlawful acts by the authorities (onrechtmatige overheidsdaad).
The recognition of onrechtmatige overheidsdaad is reinforced through the Supreme Court Regulation Number 2 of 2019 concerning Guidelines for Resolving Disputes over Government Actions and the Authority to Adjudicate Unlawful Acts by Government Bodies and/or Officials ("PERMA 2/2019").
If we examine the regulation, we will see that, essentially, unlawful acts by the authorities are acts identical to the provisions of Article 1365 of the Civil Code. It's just that these acts are carried out by the government and are classified as state administrative decisions.
The Essence of Unlawful Acts by Public Authorities
When administering governmental 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 ("UU Administrasi Pemerintahan").
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 issuing the decision and the party requesting the issuance of the decision.
At certain times, and regardless of whether it is issued based on initiation or application, a decision may 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 the authorities.
In the past, the interpretation of unlawful acts by the 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 which 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 serve as indicators of unlawful acts by the authorities.
However, unlawful acts by the government involve governmental authority in administration of governance. It is difficult to equate the government as an individual or legal entity capable of performing civil legal acts so that it can become a defendant as in civil judicial 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 the government also cannot use the concept in criminal law and be tried by criminal justice mechanisms. Indeed, criminal acts can be disguised as administrative actions, but it should be noted that not all issuances of state administrative decisions can be criminal acts. Moreover, the reach of criminal justice in the administration of government, especially in the issuance of state administrative decisions, tends to be the competence of the state administrative court.
So, what is the legal basis for measuring the existence of unlawful acts by the government 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 both have similar considerations in assessing onrechtmatige overheidsdaad.
In both decisions, there are 2 parameters of unlawful acts by the government. The first parameter is the applicable formal law. If using the current concept of law, the context of "formal law" in both decisions can be expanded to "legislation" because unlawful acts by the government can arise in the issuance of state administrative decisions that use many legal instruments other than laws.
The second parameter is the interests of the community. Unfortunately, there is no further explanation regarding the concrete form of these community interests. This raises questions such as, how far can the interests of the community be affected so that a government action is considered worthy as onrechtmatige overheidsdaad? Then, what segments of society can be affected by an act?
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