Legal Elements of State Administrative Decision
Article 87 of Law Number 30 of 2014 on State Administrative Law (Government Administrative Law), has stipulated that the definition of a State Administrative Decision (Keputusan Tata Usaha Negara/KTUN) in Indonesia as referred to in the State Administrative Court Law, must 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 (including decisions that are taken over by the superior authorized official);
- Decisions that have the potential to have legal consequences; and/or
- Decisions that apply to citizens.
In contrast, a KTUN that does not fulfill the requirements, will not be considered as KTUN.
In order to discuss this matter, the following case studies will be provided, addressing issues related the requirements and fulfillments of the state administrative decision’s (KTUN) elements.
Discussion and Analysis
Jurisprudence Number 417 K/TUN/2016
The legal case involves a disputed object, namely, Minutes of General Election Commission of Pematang Siantar City on the General Election Administrative Violation Follow Up. The Claimant challenged the state administrative decision and demanded that the disputed object to be cancelled and revoked by the Defendant. The first stage and appeal stage State Administrative Court have granted the claim. Nevertheless, the Supreme Court overturned the decision.
In its legal considerations in Decision Number 417 K/TUN/2016, Judex Juris said:
“The Minutes of the Pematang Siantar City General Election Commission … concerning the Follow-up to the Letter of the North Sumatra Provincial General Election Supervisory Agency … do not fulfil the elements of a written determination and are not final … because they are the results of an examination by the North Sumatra Provincial Election Supervisory Agency which must still be followed up by a decree of the Pematang Siantar City KPU regarding the Determination of the Candidate Pair for Mayor/Deputy Mayor of Pematang Siantar.”
A “written determination” refers to the content and not to the form of the decision issued by the Agency or Official
The legal case study above has shown that, according to the legal elements stated in the Article 87 of the State Administrative Law, among other conditions, a KTUN must be in writing and final in a broader sense (including the KTUN that is taken over by the superior authorized official).
The Elucidation of Article 1 number 3 of the State Administrative Court Law explains that a “written determination” refers to the content and not to the form of the decision issued by the Agency or Official.
A “written determination”, the law explains, is to make it easier in the evidentiary process. Moreover, a memo or minutes may fulfil a written requirement when it is clear that:
- Which state or regional institution or official issuing it;
- The intent and content of the writing;
- To whom it is addressed to and what has been determined.
“Concrete” means that the KTUN is not abstract, but tangible, definite, and may be defined. For example, a decision on one’s business license.
“Individual” means that the KTUN is not intended for the public but is specific to both the address and the intended object. Further, “final” means that it is definitive and therefore can have legal consequences. The law explains that when a decision still requires its superior instance or other instance, that decision is not final yet.
Thus, when a state administrative decision (KTUN), as illustrated in the case study, still requires the approval of a superior agency or other agencies, it has yet to be considered final, and therefore, it cannot give rise to a right or obligation for the party concerned.
Jurisprudence Number 146 K/TUN/2015
Besides the legal elements of KTUN that is stipulated in the Article 87 of the Government Administration Law, Article 1 number 9 of the State Administrative Law has stipulated that KTUN is a written stipulation issued by a state administrative body or official containing legal action on state administration which is based on concrete, individual and final, which have legal consequences for a person or legal entity.
“individual” nature means that the KTUN is not intended for the public but is specific to both the address and the intended object.
As outlined above, the elucidation of the State Administrative Court Law explains that the “individual” nature means that the KTUN is not intended for the public but is specific to both the address and the intended object. If the target is more than one person, each name of the person affected by the decision should be mentioned.
In this legal case, the object of the dispute is the Decree of the Minister of Education and Culture of the Republic of Indonesia Number 260/M/2013 on the Determination of the Trowulan Geographical Space Unit as a National Cultural Heritage.
In its claim, the Claimant argues that even though the disputed object does not address the Claimant as the addressee, it has damaged the Claimant as a private legal entity, namely, the stoppage of all construction activities of factory owned by the Claimant. In the legal case, the first stage and the appeal stage of the State Administrative Court declined the claim and upheld by the Supreme Court.
Judex Juris in its legal considerations in Decision Number 146 K/TUN/2015 said:
“the object of the dispute does not meet the requirements as a State Administrative Decision according to Article 1 number 9 of the State Administrative Court Law (not individual).”
As a Ministerial Decree is not a form of KTUN, as it is public rather than individual, it must be regarded as a statutory regulation and therefore falls under the authority of the Supreme Court to conduct a judicial review over it.
Dr. Eddy M. Leks
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 146 K/TUN/2015.
