Attorney General Oversight Inspectorate, Oktavianus, as Government representative delivering answer to the petition for judicial review of the State Administrative Court (PTUN) Law on Monday (23/4) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The determination of the 90-day deadline in filing a lawsuit in the state administrative courts is an open legal policy option by lawmakers that applies to all Indonesian citizens. This was conveyed by the Attorney General Oversight Inspectorate, Oktavianus,as Government representative in the follow-up hearing of the judicial review of Law No. 5/1986 on State Administrative Courts (PTUN) as amended by Law No. 9/2004 and Law No. 51/2009 (State Administrative Court Law). The third hearing of case No. 22/PUU-XVI/2018 on Monday (23/4) in the Plenary Courtroom of the Constitutional Court. 

On the case petitioned by the Director of PT Timsco Indonesia, S. A. Habibie, Oktavianus said that Article 55 of the PTUN Law had actually been decided by the Constitutional Court, which in essence states that the grace period of 90 days has provided legal certainty. Any law concerning the determination of state administration (TUN) is always determined by the grace period. That the limitation can be sued in court is not discriminatory because it does not impose different conditions on the same matter. 

"Therefore, the limit of the grace period, both in the state administrative courts, the Constitutional Court, and district courts (PN) is absolute. The late filing of a lawsuit is declared unacceptable so the Petitioners\' argument that Article 55 of the State Administrative Court Law does not provide legal certainty for the review of the TUN decision is unreasonable under the law," Oktavianus explained. 

Land Dispute

Meanwhile, the Supreme Court, the Relevant party in the hearing, said that concrete the issue experienced by the Petitioners is an ownership dispute that in the PTUN case settlement system is classified as a land dispute. Marta Satria Putra representing the Supreme Court explained that land disputes in Indonesia begin with the decision of the National Land Agency (BPN) issuing land right certificate, that is the certificate of land arising from stipulations and customary law. In its journey, the land certificate also functions as a TUN decision, as well as a proof of ownership rights to the land. With this double function, the TUN dispute with the land certificate as the object of the dispute is the point of tangency of authority. "Therefore, it can be understood that Article 55 of the State Administrative Court Law does not limit the Petitioners’ right to fight for their rights because ownership dispute does not fall within the authority of the state administrative courts, but of the public courts," Satria explained.

In their petition, the Petitioners considered that the phrase "ninety days" in Article 55 of the State Administrative Court Law impairing their constitutional rights. The phrase states conceptually the period of 90 days in the State Administrative Court Law is very short, especially when compared to the provisions of civil complaint time limits, especially those of articles 835, 1963, and 1967 of the Civil Code whose time limit is 30 years. 

In addition to the short period of time, the Petitioner also views the a quo norm as incurring substantial expenses in filing land ownership claims. So lawsuit deadline in the administrative courts is absolutely extended as stipulated by the Supreme Court Circular (SEMA) Number 2/1991, which regulates the extension of the grace period to file claims in the administrative courts.

Furthermore, the Petitioner explained that in his case the provisions are not clear about the expiry of the lawsuit, a provision specifies a 90-day deadline (Article 55 of Law No. 5/1986), but another specifies more than 4 months (Article 3 paragraph (3) of Law No. 5/1986), and there is even a provision that states one can file a lawsuit at any time as long as there is loss suffered (SEMA No. 2/1991). The lack of synchrony between laws and regulations leads to legal uncertainty.