AT A GLANCE ABOUT THE EXECUTION OF DECISIONS IN THE STATE ADMINISTRATIVE COURT (BETWEEN EXPECTATIONS AND REALITY)

AT A GLANCE ABOUT THE EXECUTION OF DECISIONS IN THE STATE ADMINISTRATIVE COURT (BETWEEN HOPE AND REALITY)

By: Tripeni Irianto Putro

Administrative Court or in our country better known as State Administrative Court is an external control over government actions. The existence of administrative justice is in line with the principles that exist in a democratic country, where one of the conditions for fulfillment as a democratic country is the existence of administrative justice. Good administrative justice will be able to prevent arbitrary government power and actions that tend to be authoritarian in a country. Thus, at least, to be called a democratic country, the state must prioritize the principles of legality, recognition of basic human rights, division of powers, and the existence of an independent administrative court, which has the authority to judge from a legal perspective on every action, as well as decisions made. issued by government officials or state administration officials.

Government officials or state administration officials as organs authorized by government are obliged to carry out government administration in accordance with statutory provisions, government policies and general principles of good governance. A good government is a government that regulates, administers and issues policies, both in the form of actions and decisions, always based on applicable legal provisions and benefits the community.

It cannot be denied that government actions that are covered by public law norms, which involve citizens, in practice often experience conflicts of interest, so that sometimes there are actions of Government Officials who are considered to violate the law (onrechtmatige overheidsdaad), especially related to policies that burden the community. And this is where the role of the state administrative court as administrative justice was born with Law no. 5 of 1986 concerning the State Administrative Court, as an independent organ to adjudicate and resolve any state administrative disputes submitted by members of the public, if there are members of the public who feel aggrieved by the actions or decisions of Government Officials.

We should be grateful, for more than two decades of the existence of state administrative courts, the public has understood the functions and roles of state administrative courts. Many people have dared to file lawsuits at the State Administrative Court when they feel disadvantaged because of actions or decisions of State Administrative officials that affect their own interests. This shows that the legal awareness of the community is quite high. This high legal awareness must also be balanced with the readiness of government officials, especially officials who have the authority to issue state administrative decisions to be more obedient to the rule of law. So it is not only the legal awareness of the community that must be increased, but the legal awareness of officials must also be increased, especially awareness in implementing court decisions, when a decree is issued or a government action that is being sued by members of the public is canceled by the court. Because in practice, the problem of executing court decisions is often not easy to implement.

Indeed, at the very beginning of the establishment of the state administrative court there were still many state administration officials who were reluctant to implement the decisions of the State Administrative Court. They feel that their position is higher than the people who seek justice. This also encourages that in examining TUN disputes in court, TUN judges are dominitus litis, judges are given the authority to be more active, especially helping the Plaintiff as a member of the community whose postscript is not balanced (weaker) compared to the Defendant as a Government Official. The effect of this unequal position is what is often seen in the implementation of Court decisions, because in essence the implementation/execution of the TUN Court decisions depends on the Defendant, in this case the TUN officials. Awareness and legal compliance of officials who are still low is one of the things that hinders the implementation of TUN court decisions.

However, as time goes by and there is political will from the government to improve services to the community and increase public trust in the government, the government has now made a lot of improvements, especially with regard to laws and regulations to support sound government, law-abiding and appreciative government officials. to the existence of administrative justice. One of the urgent points is the issuance of Law no. 30 of 2014 concerning Government Administration, which in article 7 paragraph (2) letter l, states that government officials have an obligation to comply with court decisions (administration) that have permanent legal force. Of course, this provision will strengthen the rules for executing the decisions of the State Administrative Court as stipulated in Law no. 5 of 1986 concerning the State Administrative Court.

According to the provisions of article 115 of Law no. 5 of 1986 concerning the State Administrative Court, only court decisions that have obtained permanent legal force can be implemented. The decision of the State Administrative Court which has obtained permanent legal force (inkracht van gewijsde) is not only binding on the parties to the dispute, but also applies to parties outside the dispute (erga omnes). This is different from the decisions of civil judges which only apply to the parties to the litigation.

The implementation of the TUN Court’s decision which has obtained permanent legal force basically depends on the Defendant, in this case the State Administrative Officer. If the Defendant voluntarily carries out the decision which has obtained permanent legal force, then the execution does not need to be carried out. Because what is meant by the execution of a court decision is the implementation of a court decision with outside assistance from the parties to the dispute. Assistance from outsiders is better known as real execution in civil cases. Because the Administrative Court is an administrative court, the real execution is unknown. Administrative Court executions are only carried out administratively (abstract) not physically as in civil cases.

In article 97 paragraph (7) of Law no. 5 of 1986, it is stated that the decision of the State Administrative Court can be in the form of:

1. Lawsuit rejected

1. Lawsuit granted

1. Claims are not accepted

1. Lawsuit dropped

Of the four types of decisions mentioned above, not all of them require follow-up. What requires follow-up in the form of implementation of the decision or execution is only the lawsuit that is granted. Whereas lawsuits that were rejected, lawsuits not accepted, and lawsuits declared null and void by the Court, essentially did not require follow-up. In the event that the Plaintiff’s lawsuit is granted, not all of it requires execution, because only the decision grants accompanied by the obligation to issue a State Administrative Decision, or the decision grants in the event that it obliges the Defendant to issue the KTUN requested by the Plaintiff in the case of a positive fictitious lawsuit (with the promulgation of Law no.11 of 2020 concerning Job Creation, the positive fictitious institution is no longer under the authority of the State Administrative Court), and now according to SEMA 5 of 2021, what exists is a lawsuit for unlawful acts by government agencies/officials who are inaction (Omission), which is the authority of the Administrative Court State attempt to bring him to justice.

Regarding the stages of implementing the decision of the State Administrative Court, it is regulated in article 116 of Law no. 51 of 2009 as the second amendment to Law No. 5 of 1986, which states that a copy of the court decision which has obtained permanent legal force, is sent to the parties by registered letter by the local Court Registrar on the order of the Chief Justice who tried him in the first instance no later than 14 (fourteen) working days. If after 60 (sixty) working days the court decision which has obtained permanent legal force is accepted and the Defendant does not carry out his obligations as referred to in Article 97 paragraph (9) letter a, namely canceling the KTUN as in the object of the dispute, then the KTUN in dispute is not have legal force again.

Furthermore, in the event that it is determined that the Defendant must carry out the obligations referred to in Article 97 paragraph (9) letters b and c, namely the obligation to revoke and issue a KTUN, or the obligation to issue a KTUN, but after 90 (ninety) working days it turns out that the obligation is not implemented, then the Plaintiff submits a request to the Chairperson of the State Administrative Court so that the court orders the Defendant to implement the Court’s decision.

In the event that the Defendant is not willing to carry out the Court’s decision which has permanent legal force, the Official in question shall be subject to coercive measures in the form of forced payment of an amount of money and/or administrative sanctions. Furthermore, officials who do not implement the decision as referred to above, will be announced in the local printed mass media by the Registrar since the said provisions have not been fulfilled. In addition to being announced in the local print media, the Chief Justice must submit this matter to the President as the highest government authority, and to the People’s Representative Council to carry out its oversight function.

Meanwhile, regarding the amount of forced money, types of administrative sanctions, and procedures for implementing forced payment of money and/or administrative sanctions will be regulated in laws and regulations, although until now these regulations have not been issued either. The problem is, until now still being debated, to whom was the forced money charged? According to Bambang Heryanto, a judge at the state administrative court, the forced payment of money must be borne by the personal finances of the official in office at the time the TUN Court’s decision must be implemented. So, it is not charged to state finances. Because the basic intent of enforcing forced money (dwangsom) in the execution process both in civil court and TUN court is very clear, namely as an execution tool that functions to provide psychological pressure to the Defendant who was defeated in a case process in court so that the defeated party is willing to obey or carry out court decisions.

However, in practice, because regarding the procedure for imposing forced money there are no enforcement rules, the actions of the Plaintiff who have won the case but the Defendant do not want to implement a court decision that has permanent legal force, tend to ask the Court through the Registrar to record the non-compliance of the Defendant/Official The government to the local print media, without going through the application of forced money. And if the Defendant still does not want to carry out, then the Court will convey the Defendant’s disobedience to the President and the DPR. So far the President, through the State Secretariat, will reply to a letter from the court and order the Defendant to implement the Administrative Court’s decision.

In fact, execution or coercive measures against the implementation of a state administrative court decision that has obtained legal force still does not need to occur if the parties related to the decision have high legal awareness. Namely the awareness to voluntarily carry out every court decision. We need to set an example for developed countries like France, whose government officials really respect the implementation of the decisions of the State Administrative Court. It would be very embarrassing if a government official had to be published in the mass media because he did not want to implement the decision of the State Administrative Court. Especially with the Law on Government Administration, namely Law no. 30 of 2014, specifically in article 7 paragraph (2) letter l it is stated that government officials have the obligation to comply with court decisions (state administration) that have permanent legal force.

So, at this time there should be no more excuses for Government Officials not complying with the Administrative Court’s decision, because the Government Administration Law clearly obliges Government Officials to comply with Court Decisions. Of course, besides encouraging the obedience of Officials in carrying out Court decisions, what is no less important is measuring the quality of the Court’s decision itself, is it appropriate to call it a fair decision? Hopefully.

Jakarta, December 2022