Substantial Defects in State Administrative Law Jurisprudence

 

Elements of Legal Validity of State Administrative Decision

As one of the validity requirements, the fulfilment of the substantial aspect in a Indonesia State Administrative Decision (Keputusan Tata Usaha Negara/KTUN) constitutes as an essential element to be addressed to. As stipulated in the Article 52 of Law Number 30 of 2014 on Government Administration (“Government Administration Law”), that the requirements for the validity of a KTUN are as follows:

• Designated by authorized officials;
• Made in accordance with the procedure; and
• The substance is in accordance with the object of the KTUN.

In the context of fulfilling the substantial aspect, it implies that the content of the issued KTUN must be in accordance with the prevailing laws and regulations. In practice, however, it is common for KTUN to be confronted with legal issues due to the non-compliance with this validity requirement, among others, its substantial requirement.

When there is a substantial defect, therefore a KTUN will be subject to legal consequences, namely revocation or annulment, as stipulated in the Article 64 and Article 66 of the Government Administration Law. These legal consequences arising from substantive defects in a KTUN have led to issues concerning the revocation and/or annulment of KTUN often become the subject of disputes.

Read Also: Authority Defects in State Administrative Law Jurisprudence

Substantial Defects in the Government Administration Law

Referring to the Elucidation of Article 64 paragraph (1) letter c of the Government Administration Law, what is meant by substantive defects includes the following circumstances:

• The Decision is not implemented by the recipient of the decision until the specified time limit;
• The facts and legal requirements that form the basis of the Decision have changed;
• The Decision may endanger and harm the public interest; or
• The Decision is not used in accordance with the objectives stated in the content of the Decision.

Following this, Article 71 of the Government Administration Law stipulated that KTUN may be annulled if there is an error of substance. The elucidation of the Law clarifies that an “error of substance” is an error in the event that the intended material does not match the formulation in the KTUN, for example, if there is a conflict of interest, a juridical defect, it was made under physical or psychological coercion, or it was made by deception.

As its legal consequences, through the Article 64 and Article 66 of the Government Administration Law, it has been stipulated that a decision can only be revoked or cancelled if there are defect in authority, procedure, and/or substantial. If a decision (KTUN) is revoked or cancelled, a new KTUN must be issued by stating the legal grounds for the revocation while taking into account the general principles of good governance (asas-asas umum pemerintahan yang baik/AUPB).

Furthermore, in order to gain deeper understanding, this issue will be examined through the following jurisprudence, to identify the condition of a KTUN that may be categorized as containing substantive defects therein.

Jurisprudence on Substantial Defects of State Administrative Decision: No. 616 K/TUN/2015

In the case described below, the Head of Village was dismissed through a KTUN on the grounds of a criminal offense prior to a legally binding court decision, which he had been legally proven to have committed a criminal offense.

Judex Facti‘s legal considerations in Decision Number 57/G/2014/PTUN-PLG:

“…then the Defendant should have first waited for the decision of the authorized institution stating that the falsification of the data was proven in accordance with the legal instrument that regulates it…”

“…the Defendant in issuing the object of dispute has failed to consider relevant matters to be used as the reasons and grounds for a decision, therefore the reasons, grounds and petitum are not correlated, resulting in the decision being unclear and detrimental to the Plaintiff…”

The Judex Facti decision was then strengthened by Judex Juris in its considerations in Decision Number 616 K/TUN/2015:

“…The State Administrative Decision on the Object of the Dispute contains a substantial flaw, namely that it does not comply with the provisions of Article 7 paragraphs (1) and (2) and Article 8 of the Regional Regulation…”

Jurisprudence on Substantial Defects of State Administrative Decision: No. 532 K/TUN/2015

Furthermore, in the following jurisprudence, the main issue discussed is whether a violation of the oath of office that legally require proof in the form of a court decision be assessed without waiting for the court decision?

Let us look at the legal considerations of Judex Facti and Judex Juris in the legal case of dismissing a Village Head who is considered to have violated the oath of office even though, according to the relevant regional regulations, it is stipulated that a statement of violating the oath/promise of office is determined by a court decision.

In Decision Number 02/G/2014/PTUN.PL, Judex Facti considered:

“…The Plaintiff was dismissed on the grounds of violating the oath/promise of office of the Village Head without being accompanied by a decision of a competent court for that purpose, therefore the issuance of the object of dispute related to the dismissal of the Plaintiff from the position of Head of Betaua Village substantially contradicts Article 17 paragraph (2) letter d of Government Regulation Number 72 of 2005 on Villages…”

The Judex Facti Decision was upheld by the Supreme Court in Decision Number 532 K/TUN/2015 where Judex Juris considered:

“…that the State Administrative Decision of the Object of Dispute a quo issued by the Defendant, substantially contradicts Article 17 paragraph (2) letter d of Government Regulation Number 72 of 2005…”

Importance of Substantive Element of State Administrative Decision

Both of the aforementioned jurisprudences have provided an illustration on the legal consequences arising from a KTUN issued with a substantive defect. These decisions emphasize the critical role of substantial elements in determining the validity of a KTUN, where the implication of a substantial defects constitutes the inconsistencies between the intended content and the formulation in the issued KTUN, as well as the inconsistency with the existing laws and regulations.

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Sources:

• Law Number 51 of 2009 on the Second Amendment of Law Number 5 of 1986 on State Administrative Court.
• Law Number 30 of 2014 on Government Administration.
• Supreme Court Decision Number 616 K/TUN/2015.
• Supreme Court Decision Number 532 K/TUN/2015.
• Palembang Administrative Court Decision Number 57/G/2014/PTUN-PLG.
• Palu Administrative Court Decision Number 02/G/2014/PL.