There is a classic legal adage that goes back a long way: “qui jussu judicis aliquod fecerit non videtur dolo malo fecisse, quia parere necesse est.” (free translation: “A person who does something by order of a judge is not considered to have committed a fraudulent act. Therefore it is necessary to obey.”). As for one of the depths of meaning, the legal adage is that when there is a judge’s order through a valid decision, the legal subject who is ordered is obliged to comply with the judge’s order. Regarding the obligation to obey this judge’s decision, some even said  that a judgment or decree that the Supreme Court has said must be obeyed by the parties to a case even if it should turn out on appeal that the court had no jurisdiction, no authority to act at all, yet it had the authority to decide, and to decide erroneously whether it had authority, and its order is to be obeyed.”

The obligation for the community to submit to court decisions is certainly logical, especially for a democratic state of law (democratische rechtsstaat) such as Indonesia (vide Article 1 paragraph (2) jo. paragraph (3) of the 1945 Constitution of the Republic of Indonesia) which places law as a mechanism to maintain order or known as law and order. In Indonesia, court decisions are the ultimate mechanism agreed upon by the founding parents to uphold law and justice, as outlined in Article 24 of the 1945 Constitution. Of course, when the founding parents agreed that court decisions are the final mechanism to uphold law and justice, as outlined in the 1945 Constitution of the Republic of Indonesia, which is the staats grund gesetz (basic rules) for Indonesia , then, it is logical when the Indonesian people are obliged to submit to the mechanism agreed upon by the founding parents. One of the decisions that must be obeyed, not only by the Indonesian people but also by the government, is the State Administrative Court (PTUN) decision. As is generally known, F.J. Stahl states that administrative justice (administrative rechtspraak) is one of the characteristics of a state of law, so it is logical when Indonesia, which is a democratic state of law, also makes the State Administrative Court. This can be seen in Article 24, paragraph (2) of the 1945 Constitution jo. Article 18 of Law Number 48 of 2009 concerning Judicial Power, the Administrative Court is one of the judicial bodies under the Supreme Court of the Republic of Indonesia. Thus, compulsory compliance with the PTUN’s decision is logical because the design of the PTUN is to act as a judicial body to assess the actions of the executive body and provide legal protection to members of the public.

Characteristics of PTUN Provisionary Decisions Provisional decisions, also known as provisionele beschikking, are interim awards (temporary disposal) that contain temporary measures to wait until the final decision on the subject matter of the case is rendered. In other words, the imposition of a provisional decision is not justified when it comes to the subject matter of the case because it is only limited to temporary measures in the form of prohibitions. For example, a prohibition to continue construction on the litigated land with the threat of paying forced money. In practice, provisional claims are generally filed together with the main lawsuit with a systematic formulation that follows the description of the arguments of the main lawsuit. Because the provisional claim is formulated in a series with the main lawsuit, without the main lawsuit, the provisional claim cannot be filed because the claim is an assessor with the main lawsuit. The content of the provisional claim is a demand that before the main case is examined, and the judge first imposes a temporary decision as a preliminary measure aimed at ensuring the interests of the Plaintiff or the interests of both parties. Looking at the normative level, the existence of a provisional decision is regulated in Article 180 HIR j.o Article 191 RBG. Based on these two provisions, it can be seen that the direct effect attached to the provisional decision is immediate (uitvoerbaar bij voorad) where the provisional decision can be implemented immediately, even though the main case has not been examined and decided. Looking deeper, the reference to the provision of provisional decisions in the practice of procedural law (courts) in Indonesia is Supreme Court Circular Letter Number 3 of 2000 concerning Immediate (uitvoerbaar bij voorad) and Provisional Decisions (“Sema 3/2000). Specifically, in point 4 of Sema 3/2000, it has been determined that provisional claims that can be subject to a provisional verdict are: a) A lawsuit based on the evidence of an authentic letter or a handwritten letter (handschrift) which is undisputed as to its contents and signature, which according to the law does not have evidentiary power; b) A lawsuit concerning Debts and Credits whose amount is certain and undisputed; c) A lawsuit concerning the lease of land, houses, warehouses and others, where the lease relationship has expired, or the Tenant is proven to have neglected his obligations as a good faith Tenant; d) The subject matter of the lawsuit regarding the claim for the division of marital property (gono-gini) after the decision regarding the divorce lawsuit has permanent legal force; e) The granting of Provisional lawsuits, with consideration for a firm and clear law and fulfilling Article 332 Rv, f) Lawsuits based on Decisions that have obtained permanent legal force (in kracht van gewijsde) and have a relationship with the subject matter of the lawsuit filed; g) the subject matter of the dispute regarding bezitsrecht.

Formulation of Legal Protection Against Non-observance of PTUN Provisionary Decision

Generally, a decision is valid when it is read out in public or when the decision is received (when the Party is not present). When the Party punished in a decision does not want to or does not comply with the decision voluntarily to carry out a decision, a decision execution mechanism is used. However, some assumptions say that the validity of a decision is from the time of execution, even though this is not true. This assumption arises a lot because it is very rare for the punished Party to carry out the contents of the decision voluntarily. One example of a case related to non-compliance with a PTUN decision is the Medan State Administrative Court Decision Number: 17/G/2000/PTUN-MDN, where in the case, the Plaintiff felt aggrieved by the Letter of the Head of the Medan City Development Planning Agency Number 640/856 dated March 14, 2000, regarding the rejection of recommendation on the Application for Building Situation Certificate for buildings located at Jalan Timor and Jalan Timor Baru I, Gang Buntu Urban Village, East Medan Subdistrict on behalf of Razali Ali and Letter of the Head of the Medan City Planning Office Number 644/872 dated March 24, 2000, regarding the refusal to obtain a Building Situation Certificate for buildings located at Jalan Timor and Jalan Timor Baru I, Gang Buntu Subdistrict, which essentially prevented the Plaintiff from constructing buildings on the land in question. After the Decision of the Medan State Administrative Court No. 17/G/2000/PTUN-MDN, which basically granted the Plaintiff’s case in its entirety, the administrative officials, namely the Head of the Medan City Development Planning Agency and the Head of the Medan City Planning Agency, were still unwilling to issue a recommendation on the Building Situation Certificate Application, thus preventing the Plaintiff from constructing the building.

Penulis : Sri Winarsi

Sri Winarsi, Legal Consequences of Disobedience of Provisional Decision  of the Administrative Court. Sriwijaya Law Review . Vol. 8 Issue 1, January 2024, http://journal.fh.unsri.ac.id/index.php/sriwijayalawreview/article/view/3201 DOI http://dx.doi.org/10.28946/slrev.Vol8.Iss1.3201.pp152-170