---

Constitutional Justice Suhartoyo delivered input to Applicants in Preliminary session of Case No. 61/PUU-XIV/2016 concerning Act of Government Administration on Tuesday (30/8). Photo PR/Ifa

 

A number of citizens challenged Article 53 (3) Act of Government Administration. Preliminary session of their petition registered in Case No. 61/PUU-XIV/2016 was held on Tuesday (30/8). Law graduate of Universitas Indonesia Rangga Sujud Widigda delivered petition points representing the Applicants.

“We file petition because we notice that there are unsychronized provisions in government administration, particularly provisions that occur when there is no regulation on time limit of decision making,” Rangga explained.

Article 53 (3) stated “If Government Institution and/or Government Official doesn’t determine and/or conduct decision and/or action within time limit referred in paragraph (2), the petition is considered granted by law,” (“Apabila dalam batas waktu sebagaimana dimaksud pada ayat (2), Badan dan/atau Pejabat Pemerintahan tidak menetapkan dan/atau melakukan Keputusan dan/atau Tindakan, maka permohonan tersebut dianggap dikabulkan secara hukum.”)

According to the Applicants, Act of Government Administration didn’t regulate on decision or action which time limit of it didn’t regulate in laws and legislation, therefore the Act caused legal uncertainty. Moreover, provisions in the Act which has positive fictive regime (berezim fiktif positif) is contrary to Act of State Administrative Courts which has negative fictive regime (berezim fiktif negative).

“If time limit doesn’t regulate in the Act, so it should be regulated in Act of State Administrative Courts. Act No. 30 Year 2014 (Act of Government Administration, ed) adopts positive fictive; an action or decision considered granted if there no decision about the action or decision aforementioned, while Act of State Administrative Court adopts negative fictive; if there is no decision taken to an action or a decision, it is considered inadmissible,” said Rangga.

The Applicants argued that such contradiction should be synchronized. They argued that positive fictive regime adopted by Act of Government Administration should be applied for both action/decision which has specific time limit and which time limit didn’t regulated.

Therefore, the Court requested the Court to declare Article 53 (3) Act of Government Administration contrary to the 1945 Constitution if it didn’t stated or interpreted as “If Government Institution and/or Government Official doesn’t determine decision and/or action within time limit referred, the petition is considered granted by law,” (“Apabila dalam batas waktu sebagaimana dimaksud pada ayat (1) atau ayat (2) badan dan/atau pejabat pemerintah tidak menetapkan keputusan dan/atau tindakan, maka permohonan tersebut dianggap dikabulkan secara hukum”).

 

Justice Panel Input

Responding Applicants’ arguments, Constitutional Justice Wahiduddin Adams as Panel Head questioned Applicants’ constitutional loss which caused by the Article. “What is your constitutional loss, either actual or potential, caused by the Article 53 (2) Act No. 30 Year 2004? You should add explanation about it,” said Wahiduddin.

Meanwhile, Constitutional Justice Suhartoyo advised the Applicants to notice Article 53 (4) Act of Government Administration. “Does the paragraph (4) automatically ignored if a decision (referred in paragraph (3)) already considered granted? Or the granting of a decision should consider paragraph (4)? Or the granting should by judicial mechanism? Your petition is only consider paragraph (1) and (2),” said Suhartoyo. (Prasetyo Adi N/Nano Tresna/lul).

---