Introduction
Law Number 30 of 2014 on State Administrative Law (“Government Administrative Law”), defines authority as the right possessed by government agencies and/or officials or other state administrators to make decisions and/or actions in the government administration.
Moreover, referring to the provision in Article 8 of the Government Administrative Law, that any State Administrative Decision (Keputusan Tata Usaha Negara/KTUN) and/or State Administrative Action must be determined and/or carried out by an authorized government agency and/or official.
When discussing a KTUN in Indonesia, the requirement for it to be issued by an authorized agency and/or official becomes crucial. This came with the fact that it is one the validity requirements of the KTUN issued. As in the Article 52 of the Government Administrative Law, it is stated that the legal requirements for 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.
This implies that every KTUN issued must be within the limits of authority of the relevant agency and/or official. Government agencies and/or officials are also prohibited from abusing their authority, which may lead for the KTUN become defect in authority.
“Every KTUN may only be issued within the limits of authority of the relevant agency and/or official”
The issue concerning defects in authority in the issuance of a KTUN remains a recurring problem to this day. It raises the question for the party who is the subject of the KTUN, as to whether the KTUN addressed to them was truly issued by an authorized agency and/or official. Thus, what are the legal consequences of a KTUN issued by an unauthorized agency and/or official?
Authority Defect on State Administrative Decision
When referring to Article 17 paragraph (2) of the Government Administrative Law, a KTUN may be deemed to have a defect of authority, when the State Administrative agency and/or official, in issuing the KTUN, has exceeded its authority, conflated its authority, and/or has acted arbitrarily. When such circumstances occur, then the legal consequences, as stipulated in the Article 19, that the KTUN in question may be declared invalid and/or subject to cancelation, provided that it has been judicially reviewed and there is a court ruling with permanent legal force.
“Authority defect occurs when the official has exceeded its authority, conflated its authority, and/or has acted arbitrarily.”
Article 64 and Article 66 of the Government Administrative Law, has also further stipulates that a decision can be revoked or cancelled if there are defect in authority, procedure, and/or substantial. Consequently, for the revoked KTUN, a new KTUN must be issued. Whilst for the canceled KTUN, a new KTUN must be determined, both shall be carried out by stating the legal grounds for the revocation and/or cancellation and by taking into account the general principles of good governance (asas-asas umum pemerintahan yang baik/AUPB).
Read Also: Requirements of Indonesia State Administrative Decision: A Decision that Does Not Meet Them
To have a further understanding, the following legal considerations will be discussed in the jurisprudence of Decision No. 08/G/2016/PTUN-PTK jo. Decision Number 465 K/TUN/2017.
This decision concerns the disputed object of a Decree of the Governor of West Kalimantan regarding the Revocation of a Mining Business License, which was based on the Decree of the Regent of Kapuas Hulu concerning the Approval of the Upgrade of a Mining Business License for Exploration to a Mining Business License for Production Operation. In this case, the Plaintiff requested for the disputed object be declared invalid and revoked on the grounds of authority defect by the Governor of West Kalimantan, as the party issuing the disputed object to the Plaintiff.
In the first level of court, the legal considerations in Decision No. 08/G/2016/PTUN-PTK stated that:
“…the issuance of the Disputed Object by the Governor of West Kalimantan contradicts the prevailing laws and regulations, because the Disputed Object was not issued by an authorized Agency/Official.”
“…the Defendant’s action in issuing the Disputed Object without legitimate authority constitutes a violation of the prohibition against acting …, therefore, the Disputed Object must be declared invalid as referred to in Article 19 paragraph (1) of the Government Administrative Law.”
“The Defendant’s action in issuing the Disputed Object without legitimate authority constitutes a violation.”
This case was subsequently upheld by the Supreme Court, as the Judex Juris legal considerations in Decision No. 465 K/TUN/2017 states:
“…because with the change in status of the Plaintiff’s company to a Foreign Investment Company (Penanaman Modal Asing/PMA), the Defendant [Governor of West Kalimantan] is not authorized to revoke the State Administrative Decree of the object of the dispute, because the authority to issue the IUP PMA lies with the Minister of Energy and Mineral Resources, therefore based on the principle of Contrarius Actus, the Official authorized to revoke is the Central Government;”
It is important to note, that the authority of central government agencies/officials and regional government agencies/officials is different. This case study shows that the authority over foreign investment companies lies with the central government, in this case the Minister of Energy and Mineral Resources, not the local regional governor.
Whilst in other contexts (issuance of other KTUN), the Governor of West Kalimantan (as the head of a local region) may constitute as an authorized body and/or official in issuing a KTUN, however it is important to note that there are limitations on the authority of a state administrative body and/or official. Article 15 paragraph (1) of the Government Administrative Law has stipulates that the authority of an agency or official is limited by the period or time limit of authority, the area of validity of the authority, and the scope of the field or material of authority.
Writer: Dr. Eddy M. Leks & Miskah Banafsaj
Sources:
- Law Number 30 of 2014 on Government Administration.
- Supreme Court Decision Number 465 K/TUN/2017.
- Pontianak Administrative Court Decision Number 08/G/2016/PTUN-PTK.
