---

Dahlan Pido as legal counsel of the Petitioners in the ruling hearing of the judicial review of the State Administrative Court Law, Thursday (22/11) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court issued its rejection of the entire petition by the Director of PT Timsco Indonesia S. A. Habibie for the constitutionality of Law No. 5/1986 on State Administrative Courts as amended by Law No. 9/2004 and Law No. 51/2009 (State Administrative Court Laws) at the ruling hearing of the Constitutional Court in the Plenary Courtroom of the Constitutional Court, Thursday (22/11). 

On the case No. 22/PUU-XVI/2018, Constitutional Justice Enny Nurbaningsih in the legal considerations of the Court stated that the provision of a 90-day deadline in Article 55 of the State Administrative Court Law did not conflict with Article 28D paragraph (2), Article 28H paragraph (2), and Article 28I paragraph (2) of the 1945 Constitution. 

The provision of Article 28D paragraph (2) of the 1945 Constitution have nothing to do with Article 55 of the State Administrative Court Law because Article 28D paragraph (2) of the 1945 Constitution guarantees the right of every citizen to work, receive compensation, and receive fair and proper treatment in the workplace. Meanwhile, the a quo norm regulates the deadline for submitting a State Administrative Decision (KTUN) to the state administrative court. "So, that there is no relevance [between] the a quo norm and Article 28D paragraph (2) of the 1945 Constitution," Enny said. 

Furthermore, Justice Enny also explained regarding the Petitioners\' claim that the a quo norm was discriminatory, the Court in Decision No. 070/PUU-II/2004 dated April 12, 2005, Decision No. 024/PUU-III/2005 dated March 26, 2006, and Decision No 27/PUU-V/2007 dated February 22, 2008 had stated the limits of what constituted discrimination. One of them was the different treatment of the same thing. On the contrary, different treatments of different things are not discrimination. 

"Of the three matters related to discrimination argued by the Petitioners, none [is classified as] discrimination [in] Article 55 of the State Administrative Court Law because the a quo norm applies to all groups and social statuses and there is no partial treatment for no apparent reason," Justice Enny explained before the hearing led by Chief Justice of the Constitutional Court Anwar Usman, in the presence of other constitutional justices. 

Legal Mechanism

The Court observed that the fact that the third party was not directly addressed by the KTUN and given the opportunity to file a suit at the state administrative court by expanding the provision of Article 55 of the State Administrative Court Law had resulted in legal uncertainty and contradiction to the Constitutional Court Decision No. 1/PUU-V/2007 dated March 12, 2007 because there was no deadline for a third party to file a suit at the state administrative court. 

"Therefore, according to the Court, [the fact that] the third party was not directly addressed by the KTUN who feel their civil interests are disadvantaged can fight for their rights through existing legal mechanisms, including the Petitioners," she explained. 

Legal Consequences 

Constitutional Justice Manahan M. P. Sitompul stated a different reason on the judicial review of the constitutionality of the a quo norm. According to Manahan, the issuance of KTUN by state administrative court agencies or officials will have legal consequences, both to the intended party, namely private legal entities or the entities not addressed by the KTUN, namely third parties related to the issuance of the KTUN. 

Furthermore, Justice Manahan said that in issuing KTUN, the state administrative court agencies or officials must be guided by the requirements of a state administrative court decision that are concrete, individual, and final. "However, after the KTUN is issued, the affected party is not only the person referred to by the KTUN, but [the KTUN] has caused legal consequences for other people or other legal entities," he said. 

Legislators 

Next to the question on the party who has the right to file a lawsuit to the State Administrative Court because the KTUN has harmed the interests of individuals or legal entities, Justice Manahan talked of the necessity to refer to Article 53 paragraph (1) of the State Administrative Court Law. The article stipulates that filing a lawsuit against the KTUN is not action popularis, because only those who feel disadvantaged over the issuance of the KTUN can do so. 

"Whereas, the State Administrative Court Law does not regulate the right [of a third party who feels that their interests are harmed due to the issuance of a KTUN to file a suit], so a legal vacuum occurs. This legal issue should be the domain of the legislators. Therefore, [the reason for the issuance of Sema Number 2 of 1991 can be understood]," Justice Manahan said. 

The case petitioned by the Director of PT Timsco Indonesia S. A. Habibie through his petition stated that the phrase "ninety days" in Article 55 of the PTUN Law impaired his constitutional right. The phrase is deemed to state conceptually that the period of 90 days in the PTUN 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 asynchrony between laws and regulations leads to legal uncertainty. (Sri Pujianti/LA/Yuniar Widiastuti)

---