Introduction
Based on the State Administrative Judiciary Law (Law No. 5 of 1986 as amended by Law No. 9 of 2004 and lastly amended by Law No. 51 of 2009 concerning the State Administrative Judiciary) the administrative judiciary is authorized to examine, decide, and resolve administrative which occurs within the administrative sector between a person or civil legal entity with an Administrative Body or Official, as a result of the issuance of an Administrative Decree. Then the respective law defines an Administrative Decree as a written stipulation issued by an Administrative Body or Officials, which contains Administrative legal acts based on prevailing laws and regulations, which are concrete, individual, and final, which establishes legal effect upon a person or civil legal entity.

The explanation above also explains that the absolute competence of the State Administrative Court is an administrative dispute that arises as a result of the enactment of an Administrative Decree. Article 2 and Article 49 of the State Administrative Judiciary Law specify what is not included in the Administrative Decree that becomes the absolute competence of the Administrative Court, among others:

  1. Administrative Decree that constitutes a civil law action;
  2. Administrative Decree which constitutes a general regulation;
  3. Administrative Decree that still requires approval;
  4. Administrative Decree issued pursuant to the provisions of the Criminal Code and Criminal Procedure Code or other relevant regulations;
  5. Administrative Decree issued based on the results of a judicial body examination based on the prevailing laws and regulations;
  6. Administrative Decree regarding the administration of the Indonesian National Armed Force;
  7. Decisions of the General Election Commission both at the national and regional levels regarding the results of the elections;
  8. Administrative Decree issued in time of war, state of emergency, state of natural disaster, or extraordinary circumstances that endanger, based on the prevailing laws and regulations; and
  9. Administrative Decree issued under urgent circumstances for the public interest based on the prevailing laws and regulations.

This article will discuss the consequences when there is a civil dispute aspect in an administrative claim.

Discussion
More often than not, an administrative claim has an intersection of civil disputes that have not yet been resolved, thus making an administrative claim not purely a claim over an Administrative Decree. Based on that, the Supreme Court issued several Circular Letter (SEMA) discussing that subject-matter.

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Starting from Supreme Court Circular No. 7/2012, in the state administrative chamber, there is a question regarding the criteria for determining whether a dispute is an administrative dispute or a civil dispute. Then the results of the chamber’s discussions outline some of the criteria as follows:

  1. If the disputed object (objectum litis) is about the validity of the Administrative Decree, then it is an administrative dispute.
  2. If the argument of the claim disputes the authority, validity, and issuance procedure of the Administrative Decree, then it is a state administrative dispute; or
  3. If the only determinant of whether the Judge can test the validity of the Administrative Decree (the disputed object) is the substance of the right, then it is the authority of the civil court; or
  4. If the norms of administrative law can resolve the dispute, it can be classified as an administrative dispute.

Then there is Supreme Court Circular No. 4/2014 which firmly states that in administrative disputes there is no contradictory process, thus if there are visible signs of a civil dispute, there is no need to conduct an overall examination of the authority, procedure and substance of an Administrative Decree.

Furthermore, there are several jurisprudences of administrative cases that contain civil dispute aspects in their claims, among others:

  1. Decision Number 52/G/2021/PTUN.Sby
    In this case, each party argued that they were the owner of the land on which the disputed object (certificate of ownership) was located. Then the Panel of Judges concluded that this dispute did not purely challenge the Administrative Decree (certificate of ownership), but rather a land ownership dispute, and in order to prove the ownership status of the land where the disputed object was located, it must be submitted as a civil claim to the civil court.  The Panel of Judges also concluded that this case did not fall within the absolute competence of the Administrative Court as stated in Article 77 paragraph (1) of the State Administrative Judiciary Law. Therefore, the Panel of Judges considered that the claim was inadmissible.
  1. Decision Number 17/G/2021/PTUN.Smd
    In this case, the claimants disputed the issuance of the disputed object (certificate of ownership) which was not complied with the laws and regulations due to the presence of other rights held by the claimants on the disputed land. The Panel of Judges included Supreme Court Circular No. 7/2012 as a reference to determine the difference between administrative disputes and civil disputes in its considerations. The Panel of Judges contends that prior to evaluating or deliberating on the validity of the issuance of the disputed object in question, it is imperative to first establish the substance of the right or determine the party who holds a superior entitlement to the land. Considering that this case contained civil dispute aspects, the Panel of Judges argued that this claim could not be categorized as an administrative dispute and thus it was not the authority of the Administrative Court to examine it. Therefore, the Panel of Judges considered that the claim was inadmissible.
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Prior to the issuance of the two Supreme Court Circulars, there was a jurisprudence that guided judges in addressing similar claims, namely the Jurisprudence of the Supreme Court of the Republic of Indonesia Number 88 K/TUN/1993. According to this jurisprudence, if a dispute arises due to an Administrative Decree but involves proving ownership rights to disputed land, the claim must first be brought to the civil court, as it is considered a civil dispute.

Closing
Based on the discussion above, it is to be noted that if an administrative claim contains elements of civil disputes it is likely that the claim will be declared as inadmissible (Niet Ontvankelijke Verklaard). This is because civil disputes do not fall within the absolute competence of the Administrative Court. Furthermore, Article 77 paragraph (1) of the State Administrative Judiciary Law stipulates that exceptions concerning the absolute competence of the Administrative Court can be submitted at any time during the examination, and even if there is no exception concerning the absolute competence, and the judge is aware of it, the judge is ex-officio obliged to declare that the court is not authorized to examine the respective dispute.

Irwansyah Dhiaulhaq

Sources:

  • Law No. 5 of 1986 as amended by Law No. 9 of 2004 and last amended by Law No. 51 of 2009 concerning the State Administrative Judiciary
  • Decision Number 52/G/2021/PTUN.Sby
  • Decision Number 17/G/2021/PTUN.Smd
  • Jurisprudence of the Supreme Court of the Republic of Indonesia Number 88 K/TUN/1993
  • Supreme Court Circular No. 7/2012
  • Supreme Court Circular No. 4/2014