Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System

Despan Heryansyah

doi:doi:10.11648/j.ipa.20200402.12

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Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System

Despan Heryansyah

Published in International and Public Affairs (Volume 4, Issue 2)

Received: 3 October 2019 Accepted: 1 November 2019 Published: 25 August 2020

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Abstract

The element of "administrative justice in government" in the concept of rechstaat, whereas in the concept of rule of law there is no element, is a very fundamental different from the two concepts of this rule of law. The existence of administrative justice in the rechstaat concept is motivated by the government's authority to normalize all regulations in the form of statutory regulations, thus providing administrative justice as a forum for the public to seek justice. In Indonesia the authority to examine government policies related to citizens' rights is placed in a separate judicial institution, namely the State Administrative Court. PTUN's existence cannot be separated from the commitment of the Indonesian people to establish a rule of law and protect the interests of its citizens. In connection with that, Law Number 5 of 1986 concerning State Administrative Court was established as a material form of law as well as formally regarding government administration in Indonesia. 28 years after its formation, this law was considered to be no longer relevant in responding to the challenges of the times, especially in protecting the interests of the people from the arbitrariness of the authorities. Therefore, in 2014 the government and the House of Representatives passed Law Number 30 of 2014 concerning Government Administration in which regulating a great number of new competencies for PTUN outside the competencies that had existed before. Some topics in this research are related to what the forms of expansion of the absolute competence of PTUN in the government administration law are, how the problems of implementation are, and what the implications for the Indonesian legal system are. The methode of this reasearch is juridical normative, where data will be enriched by conducting interviews with PTUN judges in several regions in Indonesia. The results showed that there were several forms of expansion of the absolute competence of PTUN, such as the authority to test factual actions, to test the abuse of authority, to test administrative efforts, to break positive fictitious decisions, and to test discretion. The problem found in the field was the lack of socialization carried out by the central government, including the Supreme Court, so that it still caused confusion for the judges. Meanwhile the implications faced after the enactment of this law on the Indonesian legal system are that many articles which, besides having ambiguous meanings, are also in conflict with the doctrines and theories of administrative law that have been adhered to by experts.

Published in	International and Public Affairs (Volume 4, Issue 2)
DOI	10.11648/j.ipa.20200402.12
Page(s)	28-34
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2020. Published by Science Publishing Group

Keywords

Competence, Administrative, Legal System, PTUN

References

[1]	Ridwan HR, Hukum Administrasi Negara, Cetakan keenam, (Jakarta: Rajawali Pers, 2011), hlm. 1.
[2]	Yaitu dengan lahirnya magna charta, sebuah perjanjian antara Raja Jhon Inggris dengan para Bangsawan yang pada pokoknya berisi pemberian hak-hak kepada para bangsawan dan pengurangan kekuasaan yang dimiliki oleh Raja. Konsepsi tentang negara terus mengalami perkembangan hingga pada perjanjian Montevideo kemudian pembagian kekuasaan oleh Jhon Locke dilanjutkan Montesqiueu dalam bukunya “L’Esprit des Lois”. (Perkuliahan Pertama HAN dengan Dr. Ridwan, SH., M. Hum),
[3]	Konsepsi negara demikian memiliki berbagai macam istilah, antara lain: Walfare State, socal service state, bestuurzorg, social rechstaat. Lihat S. F. Marbun, Peradilan Administrasi Negara dan Upaya Administratif fi Indonesia, Cetakan Kelima, (Yogyakarta: UII Press, 2011), hlm. 189. juga dikenal dengan istilah negara hukum material, dan Moh Hatta menyebutnya dengan negara pelayan.
[4]	Ridwan HR, Hukum Administrasi Negara, Cetakan keenam, (Jakarta: Rajawali Pers, 2011), hlm. 5.
[5]	Philip M. Hadjon, Perlindungan Hukum bagi Rakyat di Indonesia, (Surabaya: Bina Ilmu, 1987), hlm. 16-82.
[6]	Miriam Budiardjo, Dasar-dasar Ilmu Politik, cetakan pertama, (Jakarta: Gramedia, 1982), hlm. 58.
[7]	Philipus M. Hadjon, Op. Cit. hlm. 124.
[8]	Ridwan, Hukum Administrasi Negara, (Yogyakarta: UII Press, 2002), hlm. 226.
[9]	W. Riawan Tjandra, Peradilan Tata Usaha Negara; Mendorong Terwujudnya Pemerintahan yang Bersih dan Berwibawa, (Yogyakarta: Universitas Atma Jaya, 2009). Hlm. 1.
[10]	R Wiyono, Hukum Acara Peradilan Tata Usaha Negara, Cetakan Peratama, (Jakarta: Sinar Grafika, 2007) hlm. 5.
[11]	SF Marbun, Peradilan Administrasi Negara dan Upaya Administratif Di Indonesia, Cetakan Ketiga, (Yogyakarta: UII Press, 2011, hlm. 239.
[12]	Moh Mahfud MD, Lingkup Kompetensi Peradilan Tata Usaha Negara dan Kapasitas Tuntutan atas Satu Tuntutan Administrasi, dikutip dari SF Marbun, Ibid. hlm. 41.
[13]	Phulipus M Hadjon, dkk., Pengantar Hukum Administrasi Indonesia (Introduction to the Indonesian Administrative Law), Cetakan Keenam, (Yogyakarta: Gadjah Mada University Press, 1999), hlm. 318.
[14]	Sjachran Basah, Beberapa Hal tentang Hukum Acara Administrasi, FH UNPAD Bandung, dikuti dari SF. Marbun, Op. Cit. hlm. 242-245.
[15]	Pasal 48 UU No 5 Tahun 1986.
[16]	R. Wiyono, Op. Cit. hlm. 5-6.
[17]	Philipus M Hadjon dkk., Pengantar Hukum Administrasi… Op. Cit. hlm 138.
[18]	Pasal 1 ayat 2 UUD Negara Republik Indonesia Tahun 1945 (Pasca Amandemen).
[19]	Pasal 1 ayat 3 UUD Negara Republik Indonesia Tahun 1945 (Pasca Amandemen).
[20]	Utrecht, Pengantar Hukum administrasi Negara Indonesia, (Surabaya: Pustaka Tinta Mas, 1988), hlm. 30.
[21]	Ridwan HR, Op. Cit. hlm. 230.

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APA Style

Despan Heryansyah. (2020). Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System. International and Public Affairs, 4(2), 28-34. https://doi.org/10.11648/j.ipa.20200402.12

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Despan Heryansyah. Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System. Int. Public Aff. 2020, 4(2), 28-34. doi: 10.11648/j.ipa.20200402.12

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AMA Style

Despan Heryansyah. Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System. Int Public Aff. 2020;4(2):28-34. doi: 10.11648/j.ipa.20200402.12

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@article{10.11648/j.ipa.20200402.12,
  author = {Despan Heryansyah},
  title = {Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System},
  journal = {International and Public Affairs},
  volume = {4},
  number = {2},
  pages = {28-34},
  doi = {10.11648/j.ipa.20200402.12},
  url = {https://doi.org/10.11648/j.ipa.20200402.12},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ipa.20200402.12},
  abstract = {The element of "administrative justice in government" in the concept of rechstaat, whereas in the concept of rule of law there is no element, is a very fundamental different from the two concepts of this rule of law. The existence of administrative justice in the rechstaat concept is motivated by the government's authority to normalize all regulations in the form of statutory regulations, thus providing administrative justice as a forum for the public to seek justice. In Indonesia the authority to examine government policies related to citizens' rights is placed in a separate judicial institution, namely the State Administrative Court. PTUN's existence cannot be separated from the commitment of the Indonesian people to establish a rule of law and protect the interests of its citizens. In connection with that, Law Number 5 of 1986 concerning State Administrative Court was established as a material form of law as well as formally regarding government administration in Indonesia. 28 years after its formation, this law was considered to be no longer relevant in responding to the challenges of the times, especially in protecting the interests of the people from the arbitrariness of the authorities. Therefore, in 2014 the government and the House of Representatives passed Law Number 30 of 2014 concerning Government Administration in which regulating a great number of new competencies for PTUN outside the competencies that had existed before. Some topics in this research are related to what the forms of expansion of the absolute competence of PTUN in the government administration law are, how the problems of implementation are, and what the implications for the Indonesian legal system are. The methode of this reasearch is juridical normative, where data will be enriched by conducting interviews with PTUN judges in several regions in Indonesia. The results showed that there were several forms of expansion of the absolute competence of PTUN, such as the authority to test factual actions, to test the abuse of authority, to test administrative efforts, to break positive fictitious decisions, and to test discretion. The problem found in the field was the lack of socialization carried out by the central government, including the Supreme Court, so that it still caused confusion for the judges. Meanwhile the implications faced after the enactment of this law on the Indonesian legal system are that many articles which, besides having ambiguous meanings, are also in conflict with the doctrines and theories of administrative law that have been adhered to by experts.},
 year = {2020}
}

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TY  - JOUR
T1  - Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System
AU  - Despan Heryansyah
Y1  - 2020/08/25
PY  - 2020
N1  - https://doi.org/10.11648/j.ipa.20200402.12
DO  - 10.11648/j.ipa.20200402.12
T2  - International and Public Affairs
JF  - International and Public Affairs
JO  - International and Public Affairs
SP  - 28
EP  - 34
PB  - Science Publishing Group
SN  - 2640-4192
UR  - https://doi.org/10.11648/j.ipa.20200402.12
AB  - The element of "administrative justice in government" in the concept of rechstaat, whereas in the concept of rule of law there is no element, is a very fundamental different from the two concepts of this rule of law. The existence of administrative justice in the rechstaat concept is motivated by the government's authority to normalize all regulations in the form of statutory regulations, thus providing administrative justice as a forum for the public to seek justice. In Indonesia the authority to examine government policies related to citizens' rights is placed in a separate judicial institution, namely the State Administrative Court. PTUN's existence cannot be separated from the commitment of the Indonesian people to establish a rule of law and protect the interests of its citizens. In connection with that, Law Number 5 of 1986 concerning State Administrative Court was established as a material form of law as well as formally regarding government administration in Indonesia. 28 years after its formation, this law was considered to be no longer relevant in responding to the challenges of the times, especially in protecting the interests of the people from the arbitrariness of the authorities. Therefore, in 2014 the government and the House of Representatives passed Law Number 30 of 2014 concerning Government Administration in which regulating a great number of new competencies for PTUN outside the competencies that had existed before. Some topics in this research are related to what the forms of expansion of the absolute competence of PTUN in the government administration law are, how the problems of implementation are, and what the implications for the Indonesian legal system are. The methode of this reasearch is juridical normative, where data will be enriched by conducting interviews with PTUN judges in several regions in Indonesia. The results showed that there were several forms of expansion of the absolute competence of PTUN, such as the authority to test factual actions, to test the abuse of authority, to test administrative efforts, to break positive fictitious decisions, and to test discretion. The problem found in the field was the lack of socialization carried out by the central government, including the Supreme Court, so that it still caused confusion for the judges. Meanwhile the implications faced after the enactment of this law on the Indonesian legal system are that many articles which, besides having ambiguous meanings, are also in conflict with the doctrines and theories of administrative law that have been adhered to by experts.
VL  - 4
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Author Information

Despan Heryansyah

Constitutional Law, Law Faculty, Islamic University of Indonesia, Yogyakarta, Indonesia

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Despan Heryansyah. (2020). Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System. International and Public Affairs, 4(2), 28-34. https://doi.org/10.11648/j.ipa.20200402.12

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ACS Style

Despan Heryansyah. Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System. Int. Public Aff. 2020, 4(2), 28-34. doi: 10.11648/j.ipa.20200402.12

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AMA Style

Despan Heryansyah. Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System. Int Public Aff. 2020;4(2):28-34. doi: 10.11648/j.ipa.20200402.12

Copy | Download

@article{10.11648/j.ipa.20200402.12,
  author = {Despan Heryansyah},
  title = {Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System},
  journal = {International and Public Affairs},
  volume = {4},
  number = {2},
  pages = {28-34},
  doi = {10.11648/j.ipa.20200402.12},
  url = {https://doi.org/10.11648/j.ipa.20200402.12},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ipa.20200402.12},
  abstract = {The element of "administrative justice in government" in the concept of rechstaat, whereas in the concept of rule of law there is no element, is a very fundamental different from the two concepts of this rule of law. The existence of administrative justice in the rechstaat concept is motivated by the government's authority to normalize all regulations in the form of statutory regulations, thus providing administrative justice as a forum for the public to seek justice. In Indonesia the authority to examine government policies related to citizens' rights is placed in a separate judicial institution, namely the State Administrative Court. PTUN's existence cannot be separated from the commitment of the Indonesian people to establish a rule of law and protect the interests of its citizens. In connection with that, Law Number 5 of 1986 concerning State Administrative Court was established as a material form of law as well as formally regarding government administration in Indonesia. 28 years after its formation, this law was considered to be no longer relevant in responding to the challenges of the times, especially in protecting the interests of the people from the arbitrariness of the authorities. Therefore, in 2014 the government and the House of Representatives passed Law Number 30 of 2014 concerning Government Administration in which regulating a great number of new competencies for PTUN outside the competencies that had existed before. Some topics in this research are related to what the forms of expansion of the absolute competence of PTUN in the government administration law are, how the problems of implementation are, and what the implications for the Indonesian legal system are. The methode of this reasearch is juridical normative, where data will be enriched by conducting interviews with PTUN judges in several regions in Indonesia. The results showed that there were several forms of expansion of the absolute competence of PTUN, such as the authority to test factual actions, to test the abuse of authority, to test administrative efforts, to break positive fictitious decisions, and to test discretion. The problem found in the field was the lack of socialization carried out by the central government, including the Supreme Court, so that it still caused confusion for the judges. Meanwhile the implications faced after the enactment of this law on the Indonesian legal system are that many articles which, besides having ambiguous meanings, are also in conflict with the doctrines and theories of administrative law that have been adhered to by experts.},
 year = {2020}
}

Copy | Download

TY  - JOUR
T1  - Shifting the Absolute Competence of State Administrative Justice in the Indonesian Legal System
AU  - Despan Heryansyah
Y1  - 2020/08/25
PY  - 2020
N1  - https://doi.org/10.11648/j.ipa.20200402.12
DO  - 10.11648/j.ipa.20200402.12
T2  - International and Public Affairs
JF  - International and Public Affairs
JO  - International and Public Affairs
SP  - 28
EP  - 34
PB  - Science Publishing Group
SN  - 2640-4192
UR  - https://doi.org/10.11648/j.ipa.20200402.12
AB  - The element of "administrative justice in government" in the concept of rechstaat, whereas in the concept of rule of law there is no element, is a very fundamental different from the two concepts of this rule of law. The existence of administrative justice in the rechstaat concept is motivated by the government's authority to normalize all regulations in the form of statutory regulations, thus providing administrative justice as a forum for the public to seek justice. In Indonesia the authority to examine government policies related to citizens' rights is placed in a separate judicial institution, namely the State Administrative Court. PTUN's existence cannot be separated from the commitment of the Indonesian people to establish a rule of law and protect the interests of its citizens. In connection with that, Law Number 5 of 1986 concerning State Administrative Court was established as a material form of law as well as formally regarding government administration in Indonesia. 28 years after its formation, this law was considered to be no longer relevant in responding to the challenges of the times, especially in protecting the interests of the people from the arbitrariness of the authorities. Therefore, in 2014 the government and the House of Representatives passed Law Number 30 of 2014 concerning Government Administration in which regulating a great number of new competencies for PTUN outside the competencies that had existed before. Some topics in this research are related to what the forms of expansion of the absolute competence of PTUN in the government administration law are, how the problems of implementation are, and what the implications for the Indonesian legal system are. The methode of this reasearch is juridical normative, where data will be enriched by conducting interviews with PTUN judges in several regions in Indonesia. The results showed that there were several forms of expansion of the absolute competence of PTUN, such as the authority to test factual actions, to test the abuse of authority, to test administrative efforts, to break positive fictitious decisions, and to test discretion. The problem found in the field was the lack of socialization carried out by the central government, including the Supreme Court, so that it still caused confusion for the judges. Meanwhile the implications faced after the enactment of this law on the Indonesian legal system are that many articles which, besides having ambiguous meanings, are also in conflict with the doctrines and theories of administrative law that have been adhered to by experts.
VL  - 4
IS  - 2
ER  -

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