Introduction

The Principle of Legal Certainty is one of the principles in the General Principles of Good Governance (“AUPB”). This principle is regulated under Article 10 paragraph (1) letter a of Law Number 30 of 2014 on Government Administration as amended by the issuance of a Government Regulation in Lieu of Law of the Republic of Indonesia Number 2 of 2022 on Job Creation (“Government Administration Law”). Moreover, the Principle of Legal Certainty is regulated under Article 3 paragraph (1) of Law Number 28 of 1999 on State Administration who are Clean and Free from Corruption, Collusion and Nepotism as last amended by Law Number 19 of 2019 on the Second Amendment to Law Number 30 of 2002 on the Commission for the Eradication of Criminal Acts of Corruption (“State Administration Law”).

Elucidation of Article 10 paragraph (1) letter a of the Government Administration Law explains, “the principle of legal certainty is the principle in a rule of law that prioritizes the basis of laws and regulations, decency, stability, and fairness in every government administration policy.”1 Moreover, Elucidation of Article 3 paragraph (1) of the State Administration Law explains, “the Principle of Legal Certainty is the principle in a rule of law that prioritizes the basis of laws and regulations, propriety and fairness in every policy on State Administration.”2

In line with this, several administrative law experts, such as SF. Marbun and Indroharto, S.H. in their books discuss the Principle of Legal Certainty, explaining that the Principle of Legal Certainty aiming for legal stability so that the rights that have been obtained by decisions are not easily revoked.

This article discusses (i) general arrangements regarding the Principle of Material Legal Certainty, and (ii) the application of the Principle of Material Legal Certainty in state administrative disputes.

General Provision on the Principle of Material Legal Certainty

Article 10 paragraph (1) letter a of the Government Administration Law and its elucidation explains that the Principle of Legal Certainty is a principle in a rule of law that prioritizes the basis of statutory provisions, decency, stability, and fairness in every government administration policy.3 This principle relates to the issuance of every state administrative decision and/or government administrative action of which decision or action must be based on the provisions of laws and regulations, and AUPB including the Principle of Legal Certainty. 4

AUPB itself is regulated under the Government Administration Law, recognized as a principle used as reference for the use of authority for government officials in issuing state administrative decisions and/or government administrative actions in administering government. 5

SF. Marbun explained that the Principle of Legal Certainty is a principle that requires legal stability, in the sense that issued decisions must contain certainty and shall not be revoked. Even if the decision contains deficiencies, revocation of decisions that have been issued can create a negative impression and reduce public trust. The principle of legal certainty also requires that a decision cannot be retroactive.6

Moreover, Indroharto, S.H., specifically divides the Principle of Legal Certainty into 2 parts, the Principle of Formal Legal Certainty and the Principle of Material Legal Certainty. The principle of Formal Legal Certainty is the principle that requires that issued decisions must be clear to those who are concerned. For example, giving a vague time limit on when the order will be carried out, is considered as violating this principle. Meanwhile, the Principle of Material Legal Certainty is a principle that intends that a charged-character decision should not be applied retroactively. For example, a subsidy is retroactively revoked, even though the received funds have been depleted. 7

In line with the opinion of Indroharto, S.H., administrative law expert Philipus M Hadjon states that the principle of legal certainty has 2 (two) aspects, namely material and formal aspects. The material legal aspect is closely related to the principle of trust. In many circumstances, the principle of legal certainty precludes a government agency from withdrawing a decision or amending it to the detriment of those concerned. While the formal legal aspect is understood as when the content of the decision is burdensome or beneficial to certain parties, the formulation of the decision must be prepared in clear words or may not be multi-interpreted as well as giving rights to those concerned to know exactly what is expected from them.8 Please note, that the legal doctrine of SF. Marbun, Indroharto, S.H., and Philipus M Hadjon regarding the Principle of Legal Certainty have been used as a basis for consideration by judges in deciding state administrative cases, especially cases discussing the legal certainty principle.

In essence, this Principle of Legal Certainty exists to provide a sense of order, certainty, security and trust as well as proportional justice to the public for state administrative decisions that have been issued by state administration officials. Furthermore, it requires that every policy must be based on applicable regulations by aiming for legal stability so that the rights that have been obtained should be respected, and not easily revoked. Respect for a person’s rights has been considered in decision No. 04/G. TUN/2001/PTUN. YK jo. No. 10/B/TUN/PT. TUN SBY jo. No. 373 K/TUN/2002, where the Panel of Judges principally emphasizes the Principle of Legal Certainty as respect for a person’s rights of which right has been properly obtained according to law. 9

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This proper respect is also in line with the Reasonable Expectations Principle, where this principle requires that every action taken by the state administration must generate expectations for citizens. Therefore, if a hope/expectation has been given to citizens, those hope/expectations cannot be withdrawn even if it does not benefit the government. Furthermore, if there is an oversight or mistake in the actions of the state administration that harms the interests of citizens, then the loss may not be borne by the citizens but will be borne by the government that has created such hope/expectation. 10

Case Discussion: Application of the Principle of Material Legal Certainty in the State Administrative Disputes

One can better understand the application of the Principle of Legal Certainty by reading and analyzing the state administrative disputes. In this case, the state administration official as the Defendant I (Head of the Jepara Regency Land Office) issued administrative decision in the form of Right of Use under the name of Defendant II-Intervenor (the Jepara Regency Government) on customary land Yasan rights under the name of Mr. A as the heir of the Plaintiff. Let us see how the Panel of Judges considers a state administrative dispute under the Decision Number 029/G/2014/PTUN.SMG jo. Number 240/B/2014/PT.TUN.SBY jo. Number 380 K/TUN/2015 jo. Number 141/PK/TUN/2016.

  1. Background of the Case
    1. The Plaintiff is the heir of Mr. A based on a certificate of inheritance.
    2. The Defendant I is Head of the Jepara Regency Land Office, and Defendant II-Intervenor is Jepara Regency Government.
    3. The Plaintiff argues that Defendant I (Head of the Jepara District Land Office) issued the Certificate of Right of Use Number 14, located at Jalan Jenderal Sudirman, Demaan Village, Jepara District, Regency Jepara, published on 11 May 1988, Situation Picture Number 1106/1988 dated 14 March 1988, with an area of 20,000 M² (“Disputed Object”) under the Defendant II-Intervenor name (the Jepara Regency Government), upon customary land Yasan right under the name of Mr. A, based on Letter C. Yasan rights is land right that is subject to customary law. Furthermore, on the Disputed Object, a football stadium was built.
    4. The Plaintiff argues that the issuance of Disputed Object is conflicting with AUPB, namely the principle of legal certainty and the principle of formal precision.
  2. Judge’s Legal Consideration
    The Panel of Judges in considering the case focused on two main problems, namely:

    1. Whether Defendant I had the authority to issue the Disputed Object?
    2. Whether the procedure and substance were in accordance with the AUPB when the Defendant issued the Disputed Object?

Based on these 2 main issues, the Panel of Judges considered as follows:

    1. The first consideration related to the authority. The Panel of Judges considers that based on Government Regulation on Land Registration, it stipulates that land registration is determined by the Minister of Agrarian Affairs for each region, thus the Defendant I is an extension of the National Land Agency which has the authority to carry out land affairs. Therefore, the Defendant I has the authority attributively to issue the Disputed Object.
    2. The second consideration, the Panel of Judges considers as follows:
      1. The Panel of Judges found legal fact, that the issuance of Disputed Object was based on the State Land granted by the Governor of Central Java to Defendant II-Intervenor, whereas on the other hand, the land on which the Disputed Object was not derived from State Land but a former customary land registered in Letter C under the name of Mr. A which has not been recorded as transferred or traded to other parties or to Defendant II-Intervenor.
      2. Moreover, both the Defendant I and Defendant II-Intervenor are unable to present the documents (warkah) related to the registration, whether the land comes from the State Land or from the trade and transfer from customary land on Letter C under the name of Mr. A.
      3. Based on those legal fact, the Panel of Judges considers that the Disputed Object where the stadium has been erected derives from the customary land Yasan rights that still registered in the Letter C under the name of Mr. A as State Land. Thus, the Defendant I should have declined the registration of Right of Use requested by the Defendant II-Intervenor, since the (i) acquired right of the requested land is not clear, and (ii) the Defendant I should have first investigated the physical data and juridical data on the application of rights submitted by the Defendant II-Intervenor.
      4. The Panel of Judges considers that the Defendant I has violated the Principle of Legal Certainty, where the Defendant I in issuing the Disputed Object was not guided by the prevailing laws and regulations, and has caused legal uncertainty for Defendant II-Intervenor as a Right of Use certificate holder, since the issuance of the certificate of Right of Use by the Defendant I was not based on juridical data on the land. Moreover, the Panel of Judges also considers that the Defendant I has violated the Principle of Order in the State Administration because Defendant I actions should have been guided by the base of regularity, harmony and balance in state administration, however in fact Defendant I was not accurate and careful in issuing the Disputed Object has caused legal problems in society. Consequently, the Panel of Judges considers that the actions of the Defendant I issuing the Disputed Object is qualified as having violated the AUPB, namely the Principle of Legal Certainty and the Principle of Order in the State Administration.
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C. Verdict
The Panel of judges has granted the claim in its entirety. The Panel of Judges declares to annul the Disputed Object and obliges the Defendant to revoke the Disputed Object.11 Moreover, on the appeal stage, the Panel of Judges decided to strengthen the first level.12 Moreover, on the cassation stage, the Panel of Judges stated that the Judex Facti in the first stage and appeal stage is correct and there is no error in implementing the law, since the Disputed Object is legally flawed from a substantial material point of view, due to the Disputed Object is not issued on State Land, but on customary land that was still registered on Letter C under the name of Mr. A.13 Case continues in the judicial review stage (peninjauan kembali), where the Panel of Judges considers that the issuance of Disputed Object by Defendant I did not match the physical data and the juridical data, since (i) there was a juridical defect, both procedural and substantial, due the land being applied was not based on a clear right of acquisition and there was an inconsistency between the physical data and the juridical data, because the land is not State Land but the customary Yasan rights under the name of Mr. A, and (ii) the Defendant should have conducted an investigation first of the correct physical data and juridical data.14

Closing

Based on what has been described above, it can be understood that the Principle of Legal Certainty is very closely related to the prevailing laws and regulations. The Panel of Judges in the case above, in its considerations directly referred to the Principle of Legal Certainty based on the State Administration Law, the Panel of Judges considers that Defendant I has violated the Principle of Legal Certainty, whereby Defendant I in issuing the Disputed Object it was not guided by the prevailing laws and regulations. This is different from the doctrines related to the Principle of Legal Certainty, where these doctrines do not directly discuss that the Principle of Legal Certainty requires us to be guided by the prevailing laws and regulations, but focusing on the goal of the Principle of Legal Certainty aims the legal stability. Therefore, it can be concluded that if a decision is violating to the Principle of Legal Certainty, then it must also be violated with the prevailing laws and regulations, and vice versa, if a decision is violating to laws and regulations, then it must also be violated with the Principle of Legal Certainty.

Tubagus Wahyu Ryan Wardhana

Sources

  1. Elucidation Article 10 paragraph (1) letter a Government Administration Law
  2. Elucidation Article 3 paragraph (1) State Administration Law
  3. Elucidation Article 10 paragraph (1) letter a Government Administration Law
  4. Article 9 paragraph (1) Government Administration Law
  5. Article 1 number (17) Government Administration Law
  6. SF Marbun, Peradilan Tata Usaha Negara, page 148-149
  7. Indroharto, Usaha Memahami Undang-undang tentang Peradilan Tata Usaha Negara Buku 2 Beracara di Pengadilan Tata Usaha Negara, page 181
  8. Cekli Setya Pratiwi, Christina Yulita, Fauzi, dan Shinta Ayu Purnamawati., Penjelasan Hukum Asas-Asas Umum Pemerintahan yang Baik (AUPB), Lembaga Kajian dan Advokasi untuk Independesi Peradilan, page 81-82
  9. Cekli Setya Pratiwi, Christina Yulita, Fauzi, dan Shinta Ayu Purnamawati., Penjelasan Hukum Asas-Asas Umum Pemerintahan yang Baik (AUPB), Lembaga Kajian dan Advokasi untuk Independesi Peradilan, page 15.
  10. S.F. Marbun, Peradilan Administrasi Negara dan Upaya Administratif di Indonesia, FH UII Press, Yogyakarta, 1997, page 375
  11. Semarang Administrative Court Decision No. 029/G/2014/PTUN.SMG, page 71-72
  12. Jurisprudence of Supreme Court No. 380/K/TUN2015, page 14
  13. Jurisprudence of Supreme Court No. 380/K/TUN2015, page 33
  14. Jurisprudence Supreme Court No. 141/PK/TUN2016, page 30