Administrative Court Procedural Law: Between the Administrative Court Act and the Government Administration Act

Administrative Court Procedural Law:

 Between the Administrative Court Act and the Government Administration Act

I Gusti Ngurah Wairocana

Fakultas Hukum Universitas Udayana

The dynamics of the Administrative Court after the enactment of the Government Administration Act.

The State Administrative Court (hereinafter PTUN) along with the procedural law contained in the PTUN Law is in a dynamic situation following the enactment of the Government Administration Act. One hand, the content of the Government Administration Act is actually the material law of the State Administrative court system while on the other hand, the PTUN Act is a procedural law used in the enforcement of the (material of) Administrative Law. PTUN,  as a judiciary body that is free and objective in assessing and adjudicating the implementation of Administrative Law, should be a pillar in building a strong life of the nation. PTUN is expected to have a strong and clear procedural system to ensure the legal certainty for the public in accessing justice and advocating for their rights.

PTUN's absolute competence underwent a fundamental change after the enactment of the Government Administration Act, with regards to the extension of competency including Extending the meaning of state administrative decision (KTUN); PTUN competence in examining the abuse of authority; PTUN competence in deciding objects of positive fictitious disputes; The PTUN (first instance) competence to hear a lawsuit after administrative efforts and PTUN competence to adjudicate or grant a claim for compensation, without limiting a certain amount.

These various forms of expansion of competencies regulated in the Government Administration Act imply overlapping arrangements that may confuse law enforcement agencies and justice seekers. The enactment of the Government Administration Law raises a legal theoretical problem because it expands the absolute competence of PTUN as regulated in the PTUN Act. It is obvious that the Government Administration Act regulates a very broad and unlimited object of State Administration dispute  

Position of the PTUN Act After the Enactment of Government Administration Act

The creating of laws and regulations often remains a legal vacuum, vague norms, or even conflicting norms between one and another. This condition certainly causes various problems in its implementation or at a practical level. Ideally, a product of legislation should be created based on the principle of establishing good legislation.

In case of a conflict between legal norms or similar norms in a different statutory regulation, the principle of legal preference may have relevance. The mentioned principle is generally used to determine which rules will be used if two different rules are governing the same thing. The PTUN Act is a special law governing procedural law that applies to State Administrative Courts, while the Government Administration Act is substantially a source of material for administrative administration, although it also regulates some adjustments in procedural law that apply to State Administrative Courts. The Government Administration Act, based on its novelty, does not automatically function to amend and replace the provisions of special legislation that previously governed the State Administrative Court procedural law. The PTUN Act is the Lex specialis while the Government Administration Act is the Lex generalist. Provisions contained in the PTUN Act must be interpreted as specific regulation applied for the procedural law of the State Administrative Court that can override the general provisions stipulated in the Government Administration Act. The principle of legal preference Lex specialis derogat legi generalis therefore applies in examining how the PTUN Act should be positioned as a procedural law in the State Administrative Court system after the enactment of the Government Administration Act.

Challenges to the Future State Administrative Court

At a practical level, there are different views to address the application of the principle of legal preference in determining the applicable laws and regulations relating to the extension of PTUN competencies after the enactment of the Government Administration Act. Some are of the view that the novelty/recency of the Government Administration Act along with any related regulations (e.g regulations or circulars of the Supreme) then applies as formal legal guidelines to the State Administrative Court. The legislators (law creators) seem insisted to apply legal theoretical concepts and the principle of establishing legislation, meaning that the change of the competence and legal system of administrative court proceedings should be conducted by amending the previous procedural act. Regulating through different laws, which constitute the material administration law, may potentially cause theoretical problems that imply confusion and problems at the level of legal practice within the PTUN. Besides, this situation also creates disharmony between laws and regulations and opens the chance for various interpretations. As it is generally known, the procedural law is inherently a rigid and strict law which is a guideline in law enforcement in the justice system in Indonesia.