State Administrative Decision Indonesia

Dr. Eddy Marek LeksRegulatory Framework of KTUN in Indonesia

A State Administrative Decision (Keputusan Tata Usaha Negara/KTUN) in Indonesia, may be procedurally defective, when the process in issuing the KTUN does not follow the proper stages and procedure in accordance with the provisions in the prevailing laws and regulations as required.

When a KTUN that was issued turns out to have procedural defect, then as a legal consequence, the referred KTUN may be revoked or canceled. This is as regulated in the Article 64 and Article 66 of Law Number 30 of 2014 on Government Administration (“Government Administration Law”). Consequently, a new KTUN must be issued for a revoked KTUN. Meanwhile for the canceled KTUN, a new KTUN must be determined. In the case of issuance and determination of a new KTUN, 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).

“When a KTUN that was issued turns out to have procedural defect, then as a legal consequence, the referred KTUN may be revoked or canceled.”

Procedural defects in KTUN constitutes as an essential element to be addressed, considering the fulfilment of the procedural element is one of the validity requirements of the issued KTUN. As stipulated in the Article 52 of the Government Administration Law, that valid conditions of a KTUN, namely:

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

In practice, however, KTUN might become the object of dispute in the State Administrative Court on the basis of discrepancies in the fulfillment of procedural aspects in its issuance (procedural defects).

Read Also: Authority Defects in State Administrative Law Jurisprudence

Procedural Element of State Administrative Decision

The legal norms related to procedural defects is repeated in Article 71 paragraph (1) and explains that a ‘procedural error’ is an error in the procedure for determining KTUN that does not comply with the requirements and procedures stipulated in the provisions of laws and regulations and/or standard operating procedures.

In order to discuss this matter further, the judicial considerations in the following jurisprudences will serve as examples of considerations in state administrative disputes involving procedural defects. These jurisprudences will also illustrate the types of KTUN issuance that become the object of dispute due to procedural defects, as well as the conditions under which a KTUN can be categorized as containing procedural defects.

Jurisprudence on Procedural Defects of State Administrative Decision No. 52 K/TUN/2023

Judex Juris in their Decision No. 52 K/TUN/2023 argues:

“… because the issuance of a decision on the object of the dispute may not be carried out arbitrarily by the Defendant, especially since the decision on the state administrative affairs of the object of the dispute is detrimental to the interest of the Plaintiff, so the Defendant should have notified the Plaintiff in advance of the reasons for the reduction of the permit, but this was not done by the Defendant, so that it is contrary to Government Regulation Number 23 of 2021 concerning Forestry Implementation in conjunction with Article 4 of the Regulation of the Minister of Environment and Forestry Number P.45/MENLHK/SETJEN/HPL.0/2016 and the general principles of good governance, namely the principle of transparency.”

In coordination with the considerations in the ruling, the KTUN was declared procedurally defective due to non-compliance with the provisions in Article 4 of the Regulation of the Minister of Environment and Forestry Number P.45/MENLHK/SETJEN/HPL.0/2016, which among other things, regulates the approval or statement of no objection from the permit holder as one of the requirements for changing the area of the permit.

Jurisprudence on Procedural Defects of State Administrative Decision No. 287 K/TUN/2017

Furthermore, Judex Juris in Decision No. 287 K/TUN/2017 argues:

“That the issuance of the decision on the object of the dispute is legally flawed, because it does not go through the procedure as referred to in Article 34 paragraph (3) of Law Number 14 of 2008 concerning Public Information Disclosure, which in essence states that the replacement of members of the Provincial Information Commission is carried out by the Governor after consulting with the leadership of the Provincial People’s Representative Council.”

Jurisprudence on Procedural Defects of State Administrative Decision No. 402 K/TUN/2017

The following ruling will discuss whether an absolute power of attorney be the basis for the right to register a change of name on a land certificate.

In Decision No. 402 K/TUN/2017, Judex Juris argues:

“…the Defendant’s action in issuing the State Administrative Decision on the Object of Dispute by recording the transfer of land rights using an absolute power of attorney form is procedurally and substantively contrary to the prevailing laws and regulations, namely Article 39 paragraph (1) letter d and Article 45 of Government Regulation Number 24 of 1997 [on Land Registration] in conjunction with Instruction of the Minister of Home Affairs Number 14 of 1982 and the General Principles of Good Governance (Asas-Asas Umum Pemerintahan yang Baik/AAUPB), namely the Principle of Accuracy.”

In this regard, Article 39 paragraph (1) letter d of the Government Regulation Number 24 of 1997 on Land Registration essentially regulates that the Land Deed Official is obliged to refuse to make a deed if one of the parties acts on the basis of an absolute power of attorney which in essence contains a legal act of transferring rights.

Procedural Defects State Administrative Law

Jurisprudence on Procedural Defect in State Administrative Decision No. 139 K/TUN/2017

Moreover, the legal considerations in the following jurisprudence will discuss on whether a procedural defects in the village head election process can be revoked? Let’s look at the legal considerations of Judex Juris on the issuance of the Regent’s decree on the ratification of the village head.

In Decision No. 139 K/TUN/2017, Judex Juris argues:

“That the Defendant in issuing the disputed object … has violated the procedure in the voting process at the TPS, because there is a difference in treatment for voters who have the right to vote based on their ID cards at TPS 01 and TPS 02 which is very decisive in the results of the village head election, and there are ballot papers from other villages that were also voted for at TPS 01, therefore the issuance of the a quo disputed object is procedurally flawed … and violates the general principles of good governance, especially the principle of democracy, the principle of legal certainty and the principle of accuracy.”

In regards to the consideration above, it should be noted that, the principle of democracy is not included as one of the AUPB in the Law on State Administration. Nevertheless, Judex Juris legal consideration confirms the “principle of democracy” as one of the AUPB.

This is in fact also in line with the provisions in Article 10 paragraph (2) of the Government Administration Law, which essentially states that other general principles outside the AUPB can be applied as long as they are the basis for the judge’s judgment contained in a court decision with permanent legal force.

Importance of Procedural Element in a State Administrative Decision

When the issuance of the disputed object is not carried out in accordance with the proper procedure, therefore the disputed object (which constitutes a KTUN) may subject to revocation or cancellation. As evident in various jurisprudences above, while the legal bases used differ, essentially, the KTUN is still declared to be procedurally defects due to the non-compliance with the procedural stages as regulated in the relevant applicable laws and regulations.

Writer: Dr. Eddy M. Leks & Miskah Banafsaj

Sources:

  • Law Number 30 of 2014 on Government Administration.
  • Government Regulation Number 24 of 1997 on Land Registration.
  • Regulation of the Minister of Environment and Forestry Number P.45/MENLHK/SETJEN/HPL.0/2016.
  • Supreme Court Decision Number 287 K/TUN/2017.
  • Supreme Court Decision Number 402 K/TUN/2017.
  • Supreme Court Decision Number 139 K/TUN/2017.
  • Supreme Court Decision Number 52 K/TUN/2023.