Defining Finality: Exploring the Critical Concept in State Administrative Jurisprudence

Elements of State Administrative Decision

Article 87 of Law Number 30 of 2014 on Government Administrative (“Government Administrative Law”) states that State Administrative Decision (“Keputusan Tata Usaha Negara/KTUN”) shall be interpreted as:

• A written determination that also includes factual actions;
• Decisions of State Administrative Bodies and/or Officials in the executive, legislative, judicial, and other state administrators;
• Based on statutory provisions and the general principles of good governance;
• Is final in a broader sense;
• Decisions that have the potential to have legal consequences; and/or
• Decisions that apply to citizens.

For a KTUN to be declared valid, it must fulfill the elements provided in that provision. One of the elements that must be fulfilled and which will be the focus of discussion in this writing is the “finality” in the broader sense.

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In its elucidation, it was further stated that the “final” nature can be interpreted in a broader sense under the Government Administrative Law, meaning that it includes decisions taken over by the superior of the authorized officials.

However, previously, under the Elucidation of Article 1 number 3 of Law Number 5 of 1986 on State Administrative Court which has been amended by Law Number 51 of 2009 on the Second Amendment of Law Number 5 of 1986 on State Administrative Court (“State Administrative Court Law”), it has been stated that:

“Final means definitive and therefore capable of creating legal consequences. Decisions that still require approval from a higher authority or other agency are not final and therefore cannot give rise to rights or obligations for the parties concerned.”

When comparing the concept of ‘final’ as defined in the Government Administrative Law and the State Administrative Court Law, it becomes apparent that there has been an expansion in its meaning. This broader meaning is further emphasized by the Supreme Court Circular Letter Number 4 of 2016 (“Surat Edaran Mahkamah Agung/SEMA 4/2016”), which stated that KTUN is considered final in a broader sense, meaning that KTUN has given rise to legal consequences, even though it may still require approval from a higher agency or another agency.

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The understanding of the final aspect of a KTUN may trigger debate. The expanded meaning of a KTUN being final, often requires further judicial interpretation, and differences in opinion among judges are not uncommon when determining whether or not a particular KTUN fulfills the finality element.

Determining Finality of State Administrative Decision

How do judges interpret the “final” nature of a KTUN? To examine this issue further, an analysis will be conducted through the following case study of Decision Number 482 K/TUN/2016.

In this legal case, an investigative audit report declaring that state losses had occurred was considered as KTUN that, among other things, had fulfilled the final nature requirement.

The Claimant essentially claimed that the object of dispute, namely the investigative audit report issued by the Defendant, be declared null and void, on the grounds that it has caused harm to the Claimant. As reflected in the process of the issuance of the disputed object, the Defendant did not provide the Claimant the opportunity to defend prior to its issuance.

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In one of its points of exception, the Defendant argued that the object of dispute still requires follow-up from the superiors, since it is only a form of recommendation for active civil servants (Pegawai Negara Sipil/PNS)/state civil servants (Aparatur Sipil Negara/ASN) and not for the Claimant, thereby not fulfilling the final nature requirements.

In the first level of court, Judex Facti, through Decision Number 176/G/2015/PTUN-JKT, argued that the object of dispute does not meet the final elements, as:

“… the object of the dispute, although it is concrete in nature as it is real, and individual… does not fulfill the element of finality as it consists of conclusions and recommendations to the Directorate General of Taxes to impose disciplinary sanctions on several employees suspected of committing disciplinary violations.”

Even further at the appellate-level, the decision was upheld, as stated in the consideration of Decision Number 112/B/2016/PT.TUN.JKT:

“Judging from its purpose, the investigative audit report is a form of evidence of duty completion from the investigator and does not automatically result in legal consequences. Furthermore, this investigative audit report is not final in nature, and therefore does not meet the criteria stipulated in Article 1 number 9 of Law Number 51 of 2009.”

The Judex Facti at both the first level and appellate levels declared that the Claimant’s claim was inadmissible, on the grounds that the KTUN, as the object of the dispute, did not give rise to legal consequences and was not final in nature, based on an interpretation of finality under the State Administrative Court Law.

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Nevertheless, the decision was subsequently overturned at the cassation level and the Judex Juris, which by taking into account the provisions of the Government Administrative Law, held that the object of dispute indeed fulfilled the element of finality. As Judex Juris under the Decision Number 482 K/TUN/2016, considered:

“That the term final must be interpreted to mean that the State Administrative Decision has caused legal consequences for the party subject to the decision or a third party not subject to the decision (vide Article 87 Law Number 30 of 2014 on Government Administrative).”

Subsequently, Judex Juris considers, in the following:

“That in the case a quo, the Investigation Audit Report declaring that there had been financial losses to the state, futuristically in accordance with the spirit of Law Number 30 of 2014 on Government Administrative, it could harm the interest of the Claimant, it is appropriate to consider that it has given rise  to legal consequences for the Claimant, therefore fulfilling the final element…”

Contrary to the Judex Facti’s considerations of the first level of court and court of appeal, Judex Juris considers the meaning of “final” in the context of “giving rise to legal consequences” as not necessarily requiring the consequences to directly arise, but also allowing for “futuristic” consequences. In other words, “legal consequences” may directly arise, but they may also arise at a later date (indirectly). The explanation of the State Administrative Court Law actually accommodates this with the phrase “may give rise to legal consequences.”

Read Also: Substantial Defects in State Administrative Law Jurisprudence

Interpreting Final Element in a State Administrative Decision

Differences in interpretation of the “final” element in a KTUN across various level of court, as reflected in the jurisprudence above, indicate that the finality of a KTUN may raise a legal debate within the realm of state administrative law and disputes. But the Jurisprudence discussed in this article shows that the legal consequence should be seen as not only a direct legal consequence but also as a indirect or futuristic legal consequence. Under SEMA 4/2016 on the Object of Claims/Petitions in the Formulation of the State Administrative Chamber, this understanding should be applicable despite the KTUN may still require approval from a higher agency or another agency.

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Sources:

• Law Number 30 of 2014 on Government Administrative.
• Law Number 51 of 2009 on the Second Amendment of Law Number 5 of 1986 on State Administrative Court.
• Supreme Court Circular Letter Number 4 of 2016.
• Supreme Court Decision Number 482 K/TUN/2016.
• Jakarta State Administrative High Court Decision Number 112/B/2016/PT.TUN.JKT.
• Jakarta State Administrative Court Decision Number 176/G/2015/PTUN-JKT.