Legal counsel Mohammad Erzad Kasshiraghi conveying revisions to the judicial review petition of Law No. 5 of 1986 on the State Administrative Court, Wednesday (3/6/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Homemaker Rahmawati Salam has revised her material judicial review petition No. 24/PUU-XXII/2024 of Article 132 paragraph (1) of Law No. 5 of 1986 on the State Administrative Court (PTUN) as last amended by Law No. 51 of 2009 on the Second Amendment to Law No. 5 of 1986. She has revised the elaboration of legal standing as well as the posita (background of petition). These revisions were presented at a hearing on Wednesday, March 6, 2024. 

The Petitioner filed a state administrative dispute petition to the Jakarta stated administrative court against the Ministry of Agrarian Affairs and Spatial Planning/head of the National Land Agency (ATR/BPN Minister). The court had granted part of the petition but the Minister then filed a petition requesting a case review.

“Article 132 paragraph (1) of the State Administrative Law does not limit any state administrative body and/or official to apply for judicial review… thus the case between the Petitioner and the ATR/BPN Minister will continue,” said legal counsel Mohammad Erzad Kasshiraghi before Constitutional Justices M. Guntur Hamzah (panel chair), Enny Nurbaningsih, and Ridwan Mansyur.

The Petitioner believes the case has been settled at the cassation level and thus the ruling can be executed since it has had permanent legal force. However, the ATR/BPN Minister delayed the execution citing he would file a case review petition.

Erzad added that law enforcement is essentially an effort to enforce legal norms and values behind these norms. Thus, law enforcers must properly understand the legal spirit underlying the legal regulations that must be enforced and this will be related to the various dynamics that occur in the lawmaking process.

In the petitum, the Petitioner requests that the Court declare Article 132 paragraph (1) of the State Administrative Law unconstitutional and not legally binding if not interpreted as “Against a court decision that has obtained permanent legal force, only individuals or civil legal entities may file a petition for case review to the Supreme Court.”

Also read: Homemaker Challenges Provision on Case Review in PTUN Law

Article 132 paragraph (1) of the State Administrative Law reads, “Against a court decision that has obtained permanent legal force, a petition for case review may be filed to the Supreme Court.”

The Petitioner filed a state administrative dispute petition to the Jakarta stated administrative court against the Ministry of Agrarian Affairs and Spatial Planning/head of the National Land Agency (ATR/BPN Minister). The court granted part of the petition through Decision No. 28/G/TF/2022/PTUN.JKT dated May 24, 2022.

Then, the ATR/BPN Minister appealed the ruling at the Jakarta high state administrative court (PTTUN), which affirmed the previous court’s ruling and granted the entire petition through Decision No. 171/B/TF/2022/PT.TUN.JKT dated August 16, 2022.

Following that, the Minister filed a cassation petition to the Supreme Court, but even the Supreme Court rejected the cassation petition on June 20, 2023 through Decision No. 184 K/TUN/TF/2023. On August 7, 2023, the Petitioner made an appeal to the ATR/BPN Minister to implement the inkracht Supreme Court cassation decision.

However, the Minister filed a case review petition to the ruling. The Petitioner believes Article 132 paragraph (1) of the State Administrative Court Law has harmed her constitutional rights since it allows any state administrative agency and/or official in casu the ATR/BPN Minister to file a case review against an inkracht cassation decision infinitely.

The Petitioner asserted that the Court must consider the current legal reality where the guidelines for cases by government agencies require case handling up to the case review level. She asserts that giving government agencies or officials the right to file a case review petition could potentially cause legal uncertainty because in practice it is only used as an excuse to delay or slow down the execution of a decision. 

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Fauzan F.
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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