RECONCEPTULIZATION OF ADMINISTRATIVE COURT PROCESS IN INDONESIA Aju Putrijanti Faculty of Law, Diponegoro University

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1 RECONCEPTULIZATION OF ADMINISTRATIVE COURT PROCESS IN INDONESIA Aju Putrijanti Faculty of Law, Diponegoro University Abstract The Administrative Court is one of the judiciary system which aims are to supervise the government s act,law enforcement in administrative law. As globalization become important, the governance has to adjust the regulations. The administrative court judiciary system comprises of legal structure, legal substance and legal culture which build a system of law. As the globalization becomes wide, borderless it impact many important sector to the nation, and the governance also globalized. The issue is how the reconceptualization of administrative court process in Indonesia due to globalization. The method of this research by examine the existing regulations and comparative study with some countries. The conclusion is reconceptualization of administrative court judiciary system is highly needed by considering the changes of information technology, politic, economic, social-life, and adjut with nations ideology. Reconceptualizations covers legal substance, legal structure and legal culture as a system of law in administrative court justice system and it is important to build judicial globalization. Keywords: reconceptualization, administirative court, globalization of governance. I. INTRODUCTION A. BACKGROUND The government has been moving towards to globalization and the development is gives impact to all sectors. The administrative law as a material law which is important to organized the State and must to adjust the development. There must be shifting paradigm in administrative law in global world and so does the procedural law for administrative court. Administrative Court is a court with special competence to investigate, decide and settle administrative dispute based on idea to protect the human rights from abuse by government s act, to stabilized the position between citizen as Plaintiff and government as Defendant. 156

2 The role of government as welfare state in global era needs dynamic law which can easy follows the changes, it is the duty of administirative law to become dynamic and flexible. In the global era, there are many government s act which are changes as it used to be, on the other side we can not deny, nonetheless we have to follow and appropriate with the changes. The idea in this paper can be explained that the existing concept of Administrative Court is based under different circumstances, thus the government s act has to supervise from internal either external body. Administrative Court judiciary system has to change and follow the shift paradigm of administrative law, it is complicated reconceptualization to have a proper judiciary system. B. RESEARCH QUESTION Based on the dynamic changes in multi factor and relations of interdisciplinary fields, the problem in this paper is how is the reconceptualization of administrative court process due to globalization in Indonesia? C. RESEARCH METHOD To answer the problem is using normative and comparative approach. Normative approach is to study and find the philosophy, the aim, the principle as based of the Court.Normative approach is using by analyze the primarily material such as regulations, judge s decree, and secondary material are journals, books as references 1. Comparative approach is necesarry to know how the role, paradigm and law in some countries refer to administrative court. 1 Soetandyo Wignjosoebroto, 2011, Ragam-ragam Penelitian Hukum in Metode Penlelitian Hukum Konstelasi dan Refleksi. (Ed). Sulistyowati Irianto and Shidarta. Jakarta: Yayasan Pustaka Obor Indonesia. Pp

3 II. RESULT AND DISCUSSION A. THE ADMINISTRATIVE COURT There is a paradigm shift of state, from the state as guardian became welfare state, and the role of state also shifted. In the welfare state, the role of government is to give social life of civilization by implement the social welfare, and give more flexibility to make some regulation, but it could trigger the friction between government and civilization. 2 If there is a dispute appears after the friction, this is the competence of administrative court to settle. There are principles to protect human rights from abuse of power by government in State Law, the principle of legality for government s implementation, protection of human rights, division of power, and supervision by administrative court. 3 These are general principles and most country applied to their government, with adjustment to their ideology. Principle of legality as a based for government to implement the regulations in order to get social welfare, discipline, fulfill the basic needs of human being like healthy, housing, education, build legal obedience. For some cases, government may take action which had no regulations, its call discretion, but it has to take carefully and with prior to protect human rights. Judiciary body is one of the government body with specific competence as a result of division of power, besides executive and legislative body. As welfare state law, the role of government are important and differ from the previous period time when the needs of civilization was not so complicated as today. Government has to follow, regulates all the development and inform the civilization the relevance of the regulations to the public by proper way as regulated. Every regulation has a substance of law based on the things needs to regulate. The regulations is political will of government, must have a certain aim, and the existance of law to implement. 2 Hotma P. Sibuea Asas Negara Hukum, Peraturan Kebijakan dan Asas-asas Umum Pemerintahan yang Baik. Jakarta : Erlangga. Pg Philipus M. Hadjon, et.al Hukum Administrasi dan Tindak Pidana Korupsi. Yogyakarta: Gadjahmada University Press. Pg.6 158

4 4 Implementation of regulation related to system of law of each state, the aim and political will of the government. Especially the political will has a strong influence in the making of regulation. The Administrative Court in Indonesia was built based on Pancasila as nation ideology and Constitution of 1945 as basic law. The aims of Administrative Court are to stabilize the rights and duty of the people and the Government s interest, protect the human rigths, equality before the law and law enforcement in administrative law. The Administrative Court is one of the characterize State in civil law system and differ from the common law system which did not put Administrative Court as one of the characterize State. Eventhough it is different, but they have same aims are to protect the human rights and equality before the law. 5 In US, Australia, UK, they have administrative court or tribunal which adjust to their legal system. To built the Administrative Court, there were many efforts to be done, the important things is comparison study to some European countries which already had this type of court. We can not ignore the influence of some principle of administrative court in French, Germany and Dutch during the development of administrative court justice system. It is under the Supreme Court which had specific competence to settle the adminisitrative dispute between people or private company and government s based on government s decree which against the law. The government s decree should be concrete, final, individual and has legal impact to the name s written in the decree. The exception meaning of government s decree which could not become an object, as stated in Article 2 of the Law No. 5/1986 on Administrative Court as amendments. To operate the Administrative Court based on general principles of judiciary and spesific principles, as regulated in the Law No. 48/2009 on 4 Willy D.S. Voll Dasar-dasar Ilmu Hukum Administrasi Negara. Jakarta : Sinar Grafika. Pg Priyatmanto Abdoullah Revitalisasi Kewenangan PTUN Gagasan Perluasan Kompetensi Peradilan Tata Usaha Negara. Yogyakarta : Cahaya Atma Pustaka. pp

5 Judiciary System and the Law No. 5/1986 on Administrative Court and its amendments. The spesific principles in Administrative Court are : presumptio justae causa, judge s decree has an erga omnes, strict independent proof, dominus litis. The Administrative Court has a judiciary system based on Law No 5/1986 and its amendments by Law No 9 / 2004 the first amendment and Law No 51/2009 as the second amendments, its called administrative court judiciary system. It was built in 1986 with politic and law condition are totally different with this era. To become appropriate with the changes of political view, laws, social culture, information technology as it comes to globalization and modern governance as we can not eschew, on the contrary we have to face and fight for this, unless we will be left behind in development. The adminisitrative procedural process which had been regulated in the Law No. 5/1986 on Administrative Court and its amendments until now still can be used in practice. Instead we have to make some adjustment due to the development of political view, for example the corruption as increased day to day. From the criminal justice system, it had been a decade to exterminate this type of crime. The lawsuit in Administrative Court in the early years, dominated subject are land owner certificate and stuffing. New paradigm in Administrative Court caused by development of democracy, political disputes, environmental issues, and as a part of legal system will be important in democraction process of law enforcement of human rights and guarantee of livewell and reuse of environment. 6 The shifting of political view has been made influence in people s point of view, behavior and how they react for any changes arise. The awareness of protection of civil rights brought people to Administrative Court besides other judiciary body. 6 Irvan Mawardi Paradigma Baru PTUN Respon Peradilan Administrasi Terhadap Demokratisasi.Yogyakarta. Thafa Media. pg

6 B. THE GLOBALIZATION The globalization phenomena is wide and various, which impact the State, sociocultural life. One of the example in the globalization era, the economic and information technology gave impact to consumer behaviour as we can buy the things from other continent without seeing each other. This will continously moving without any permission, on the other side, the governance might not yet prepare the proper regulations to deal with, as the tendency of crime will increase and harmful the people. Globalization is a complicated process, because the process is unlimited and more than an economic phenomenon, where technology and political issues also gives contribution. 7 There are many research, literatures contributes to give the meaning, and relationship between governance and globalization, how they interaction among the sociallife and behaviour of the people. It is necessary that study of globalization needs an interdisciplinary study, because there are many related issues relates,whether directly or indirect tie up. The globalization needs various kind of actor to perform, as the future of global governance, as cited from J. Jang,et.al, will be shaped by five factors :individual empowerment, increasing awareness of human security, institutional complexity, international power shift and liberal world political paradigm. 8 In the frame of reconceptualization of procedural process in Administrative Court, the five actors as mentioned above, are important and interdependencies to build the good judiciary system. A. RECONCEPTUALIZATION OF PROCEDURAL PROCESS IN ADMINISTRATIVE COURT The political will to make administrative court as a judiciary body with spesific competence, started from 1942 until it has been legalized in The process of making is dynamic followed the political view at that time, 7 Michael Chi Man, Mg. Are Globalization and Governance Interrelated? Evidence Among World Economies. Journal of Globalization Studies.Vol.7, No.2, November pg J.Jang, J.Mcsparren., Y. Rashchupkina Global Governance : Present and Future. Palgrave Communication. Vol.2. pg

7 and some changes in the draft of regulations. It took long time for the government to legalized the law, and with some changes of the draft for adjustment to the circumstances. The dynamic changed of the government showed the different political will to make the law. Every act of government must be supervise by the internal and external body, such as Administrative Court as an independent and impartial judiciary. This has a powerful meaning of law enforcement and fulfill the human rights. The existence of adminisitrative court in State law is to keep balance position between rights and obligations of government and civilization, to achieve the nations aims and protect the human rigths. The performance of Administrative Court can be as a tool to know the implementation of government s duty to serve the public, in State Law and as democratic state. 9 The supervision of government s act is important to increase the capability of public service, the principle of good governance as a basic principle to implement the government regulation. The State has an authority to implement the government s duty as stated in the Constitution of The administrative law regulates the government s task and duty whether private or public act. As a part of international community, we have to respect to other State regulations either the regional or international rules. The changes in global administrative law immediately will influence the State. Using the theory of legal system of Lawrence Friedman, it can be understood that to build the capacity of public services it will needs the shifting of legal culture, legal structure and legal substantive. The shifting of legal substantive will give impact to legal structure either legal culture, there is a linkage to have a good administrative court justice system. The judiciary system should follow and supports the shifting from existing government to e-government, especially in the developing 9 Ali Abdullah Teori dan Praktik Hukum Acara Peradilan Tata Usaha Negara Pasca- Amandemen. Jakarta : Kencana. Pg

8 countries. 10 The condition of society in development countries are different to modern countries, which they had a better legal culture and obedience to build the nations. In developing country, there is a leak of legal certainty and legal enforcement.this situation will ban the shifting to e-government for its purposes. The gap between well and less educated is wide in developing country, so does the access to get better education, the leak of infrastructure and low economic income, this all caused a difficult circumstances in globalization. The administrative law as a basic law to government s act regulates in Law No 30/2014 of Governance Administration and clearly define the government s act, supervision, procedural standard of government s act, sanction and other related acts. Also as material law to Administrative Court and has some new regulations which does not exist in other regulations. The new regulations are about abuse of power by government officer or body, positive fictitious decisions, the broadened authority of administrative court. Reconceptualization of procedural process is important because it has to adjust with the real circumstances which influenced by the globalization and administrative law. The aim is in order to give justice by apply the changing of information technology properly. There is an important relations between the administrative law, globalization and administrative court. Administrative Court has to supervise the government s act in globalization era, because there is also a shifting paradigm in administrative law, on the contrary the principle of equality before the law and fulfill of civil rights should be as priority. Administrative Court is under the Supreme Court as judiciary body, and as stated in Law No 48 / 2009 of Judiciary System. The judiciary system has an universal principles i.e. judiciary independence, impartial and equality before the law. Administrative Court has 4 (four) spesific principles as mentioned above as legal basic to implement the procedural process. All the principles are support to operates the Administrative Court. 10 Subhajit Bhasu E-Government and Developing Countries: An Overview. Government s Information Quartely.Vol.27.Issue 2. Pg

9 Supreme Court have been used the information technology for several years, we can see the progress and detail of each case by entering the case number, the court schedule, the organization structure, the judge s verdict of any court from first-instance court until Supreme Court. Government has been use the numerous development of information technology to support the public service and support government duties, Supandi also said that judges as central figure in judicial process, are required to have good morality, sensitive and maintain integrity, increase profesionalism. 11 The challenge to increase public servcie for civilization, judge must use the information technology to make consider as judge s reasoning and it is an obligation to use it properly. It is a duty for judge to get used to maximise the fast changing of technology, otherwise he will get lose benefit and opportunity to develop himself. The development of using information technology as a tool to make increase public service for the society, open access of the court is just a few things to move forward to modern court and reconceptualization of procedural process to improve the better quality.12 Supreme Court has just started to use and implement the development of it to increase the judges capability as part of legal culture. It is a duty of government to give a clear regulations by make priority to protect the human rights and the government s duty. Government support the development of information technology by make regulations Law No 14 / 2008 the Openess of Public Information to give a good infrastructure, where people can access public information from government, which might be not ban as exception.13 This regulations as based to other government body to give related information about their duty and the result. The Supreme Court is one of the government body which use this regulation to give information to the people about the court and related things. 11 Supandi To Anticipate Change of Law Paradigm as Result of Global Development. Essays and Commentaries on Indonesia Law. Bandung : Alumni. Pg B.Tonn., D.,et.al. Future of The Courts : Fixed, flexibel and Improvisational Framewok. Futures. Vol.44.Issue 9,pp Endah Dewi Nawangsari Hukum Administrasi Negara dalam Perspektif Cyber Law. Hukum Administrasi Negara Dalam Perspektif Cyber Law Terkait Data Privasi dan Beschikking Digitalisasi. Bandung : Alumni. Pg

10 As comparative study, in Dutch Judiciary system, they had been changed the management of court for each, restructuring the judicial organization, and judges realized that they had to dealt with the changing of subject, media pressure. 14 The Dutch had been started the changes from 2002, by introducing the Judicial Organization Act. The changes introduce the judges into the new system of court management systems, accountability of the judiciary system and increase the public awareness and other related with judiciary system. This changes brought good impact to judges and judiciary system in Dutch after evaluated in 2006, by the Deetman Committee. Following the development of information technology, government also shift from the type of government they used to be to become e-government which using information technology to make application of government s services and complaints. Some countries had been used this technology to make lawsuit and complaints, on the other side, the government can issue the decree electronically without ignore the written documents. Administrative Law in Indonesia has been put the electronic decree as one type of government s decree which have the same legally binding as written decree and also can be used as evidence for some cases only based on Law No 30/2014. The use of electronic decree regulates in Peraturan Mahkamah Agung Republik Indonesia No 4/ 2104 about Guidance in Assessment in Abuse of Power and Peraturan Mahkamah Agung Republik Indonesia No 5/2014 about Guidance of Procedural Process To Get Decree of Application, this regulation is to fulfill the legal vacuum of law. The abuse of authority in adminisitrative viewpoint has different understanding from the criminal justice system. Authority in administrative law can be obtained from attribution, mandate, delegation and this is use as evidence proofs by Judge. In Article No 20 Law No 30/2014 of Governance Administration, first should be a statement from APIP, states there is abuse of authority, second, the government s officer or body can make an application 14 Philip M. Langbroek Organization Development of The Dutch Judiciary, between Accountability and Judicial Independence. International Court of Journal Administration. Vol. 2. Issue 2. Pg

11 to Administrative Court for investigation. Third, the Court will grant the application as far as the case not yet proceed in criminal justice system. If the Court grant the application, the applicant have to prove that he has the authority from attributive, mandate or delegation, and gives evidence as regulates in Perma No 4/2015 of Guidance in Assessment in Abuse of Power and support with evidences such as related documents of electronic decree. The positive fictitious decision as a new regulation in Law No 30/2014 of Governance Administration, the procedural process are in Peraturan Mahkamah Agung Republik Indonesia No 5 / 2015 of Guidance of Procedural Process To Get Decree of Application, since there is no regulations in Law No 5 / 1986 of Administrative Court about the positive fictitious decision. The extension authority of Administrative Court had been regulated in Article 87 Law No 30/2014 of Governance Administration, thus it should be followed by the procedural process. On the contrary, the Law No 5 /1986 of Administrative Court and its amendments did not regulates the extension authority of the court.to preserve the law enforcement, Administrative Judge has to dig and find the norm, the principle of good governance according to the extension authority. It is a duty of the judge to delve and find the norm in the frame to develop the law, based on Pancasila, Constitution of 1945, and considering the globalization and modernization in every sector. Related to the matter, judge may make discretion to settle the disputes, law enforcement, protect of human rights, with reasonable legal basic. It is necessary to know, understand the development in local, regional either global perception. The principles of good governance may vary each State, because this came from local values or norms of each State. As good governance become universal and the important points to increase the services of government office, it might be possible there will be similarity with other State. According to shifting paradigm of administrative law, the government should improve the capacity of public service unless they will get complaint 166

12 and lawsuit from society due to leak of services. Improving the capacity of public service is a part of increasing the human resources in culture, behaviour, operation standard procedure, this are the important points to shifting from existing government to modern government. The government officer has to change their culture in public services from being serve to become to serve the public. As a part of government body, the court administration has important role as to begin the good public service in judiciary system, this is one thing of shifting in legal culture. Refer to shifting in legal culture, the legal obedience of government officer as a loser in administrative court lawsuit, has to increase from time to time. Legal obedience is an important for every legal standing and everyone as citizen. In some cases, when the government officer become a loser and has obligations to follow and implement the judge s verdict, but he did not make it, first it will harm the Plaintiff, second, it shows the leak of legal obedience of the government. The leak of legal obedience of Defendant has become problems since Law No 5/1986 of Administrative Court become effective and its still a problem to be solved, eventhough there was Law No 30 /2014 of Governance Administration as material law to conduct and supervise the government s officer to do their tasks. The legal obedience is side by side with the moral responsibility to do the judge s verdict and as a part of legal culture, as one important part to build a good governance.15 Law No 30/2014 of Governance Administration came into force 3 ( three) years ago, on the other side the leak of legal obedience has been going on for a long time, at present the globalization is moving towards. These become complicated, so it needs to shifting of legal culture with proper condition at present time of our nations. There is a strong relationship between good governance, globalization of government, legal obedience of government s officer or body, we can say, legal obedience is strongly needed 15 Bagir Manan Mewujudkan Peradilan Yang Bersih dan Berwibawa Melalui Good Governance. Menegakkan Hukum Suatu Pencarian. Jakarta : Asosiasi Advokat Indonesia. Pg :

13 to build good governance in globalization era. Refer to legal culture and to increase the better public service, in Dutch, Denmark, England and Wales had been implement the quality management to the court system which shown the quite effectively to improve the organization function and will affect the judges work. 16 Moreover he told that it needs an inter-disciplinary approach to judicial governance.this approach are necessary to build a good governance and vice versa to law enforcement. Refer to globalization, there is a new tendency of judicial globalization, it means that there is a phenomenon of high court judges use the global conversation by referring to or borrowing each other foreign judgment, but could not be adopted for the case.17 Judicial globalization can be understood that judges are able to have conversations, refer to other judge s verdict from other country, it is better if the judge can possible to meet each other and take into account. This is great forum, where they can share their experience with other judges included their judgment, in order to face the judicial globalization. Judicial globalization is a new idea to start a new wave of judiciary approach, by make a conversation and comparative judgment from other country, to get know the development of any principles, idea or cases. In the era of globalization it is possible if there is a shift of paradgim or principles of law, with prior consider to adjust with nations ideology. The government has to prepare the regulations above the matter, because it is necessary in law enforcement and to build legal obedience. B. CONCLUSION The Administrative Court judiciary system needs to reconceptualize from the existing condition to modern and global governance. As system of law, the administrative court judiciary system also consists of legal structure, 16 Ng Gar Yein. A Discipline of Judicial Governance?.Utrecth Law Review. Volume 7.Issue 1. Pp Carl Baudencahcer Judicial Globalization : New Developments or Old Wine in the New Bottles?. Texas International Law Journal. Volume 38. page

14 legal susbstance, and legal culture. Legal substance is refer to regulations has to adjust, harmonize and synchronize for administrative law enforcement. Legal structure is the court administration management, by using the development of information technology to know the progress of each case. Legal culture is to increase the legal obedience and moral responsibility for citizen, the capacity of public service by the government. Reconceptualization of administrative court judiciary system is highly demand to follow and adjust the globalization of governance for the development of the State, the government needs a regulations to support the implementation, by considering the changes of information technology, politic, economic, social-life, and adjut with nations ideology. References Abdoullah, Priyatmanto, 2016, Revitalisasi Kewenangan PTUN Gagasan Perluasan Kompetensi Peradilan Tata Usaha Negara. Yogyakarta : Cahaya Atma Pustaka. Abdullah, Ali, 2017, Teori dan Praktik Hukum Acara Peradilan Tata Usaha Negara Pasca- Amandemen. Jakarta : Kencana. B.Tonn., D.,et.al. Future of The Courts : Fixed, flexibel and Improvisational Framewok. Futures. Vol.44.Issue 9. Baudencahcer, Carl, 2003, Judicial Globalization : New Developments or Old Wine in the New Bottles?. Texas International Law Journal. Volume 38. Bhasu, Subhajit, 2004, E-Government and Developing Countries: An Overview. Government s Information Quartely.Vol.27. Issue 2. Hadjon, Philipus M. et.al., 2011, Hukum Administrasi dan Tindak Pidana Korupsi. Yogyakarta: Gadjahmada University Press. Langbroek, 2010, Philip M. Organization Development of The Dutch Judiciary, between Accountability and Judicial Independence. International Court of Journal Administration. Vol. 2. Issue 2. J.Jang, J.Mcsparren., Y. Rashchupkina, 2016, Global Governance : Present and Future. Palgrave Communication. Vol

15 Mg. Michael Chi Man Are Globalization and Governance Interrelated? Evidence Among World Economies. Journal of Globalization Studies.Vol.7, No.2, November Manan, Bagir, 2009, Mewujudkan Peradilan Yang Bersih dan Berwibawa Melalui Good Governance. Menegakkan Hukum Suatu Pencarian. Jakarta : Asosiasi Advokat Indonesia. Mawardi, Irvan, 2016, Paradigma Baru PTUN Respon Peradilan Administrasi Terhadap Demokratisasi. Yogyakarta. Thafa Media. Nawangsari, Endah Dewi, 2016, Hukum Administrasi Negara dalam Perspektif Cyber Law. Hukum Administrasi Negara Dalam Perspektif Cyber Law Terkait Data Privasi dan Beschikking Digitalisasi. Bandung : Alumni. Ng Gar Yein. A Discipline of Judicial Governance?.Utrecth Law Review. Volume 7. Issue 1. Sibuea, Hotma P., 2010, Asas Negara Hukum, Peraturan Kebijakan dan Asasasas Umum Pemerintahan yang Baik. Jakarta: Erlangga. Supandi, 2017, To Anticipate Change of Law Paradigm as Result of Global Development. Essays and Commentaries on Indonesia Law. Bandung : Alumni. Wignjosoebroto, Soetandyo, 2011, Ragam-ragam Penelitian Hukum in Metode Penlelitian Hukum Konstelasi dan Refleksi. (Ed). Sulistyowati Irianto and Shidarta. Jakarta: Yayasan Pustaka Obor Indonesia. Yein..Ng Gar A Discipline of Judicial Governance?. Utrecth Law Review. Volume 7.Issue 1. Voll. Willy D.S., 2014, Dasar-dasar Ilmu Hukum Administrasi Negara. Jakarta : Sinar Grafika. 170