Appeal Objection in the State Administrative Court System 

Hendrik Salmon

Faculty of Law, Universitas Pattimura, Ambon Email: hendriksalmon13@gmail.com

Abstract: Appeal decisions made by the committee protested the auction through the competent authority, in which case it was never followed up to the State Administrative Court by those who felt aggrieved. The issues of this study are the legality of the decision of the appeal appropriately corrected Presidential Decree No. 54 of 2010 and its amendments and decisions corrected and its amendments, may be sued in the State Administrative Court. The materials of this study are used primary and secondary legal materials, and are analyzed using the approach of legislation and conceptual. The results of this study indicate that the legality of the decision of the appeal appropriately corrected Presidential Decree No. 54 of 2010 is a process that is performed for the seats the law as its posture. Therefore, an appeal in the procurement of goods and services can be done because the bidders are not satisfied with the answer of ULP, thus bidders do contest the appeal to obtain from the decision of officer authorized. Referring to the law of State Administrative Court, the decision of authorized can be submitted to the State Administrative Court to obtain law.

Abstract: The state administrative court system is an administrative effort carried out as stipulated in the State Administrative Court Law. Based on this, the procurement of goods and services often raises legal issues that need to be addressed through legal means. Presidential Regulation Number 54 of 2010, as amended by Presidential Regulation Number 70 of 2012, until the amendment recognizes the existence of appeal objection efforts made by parties who are dissatisfied with the determination of the auction committee. Therefore, the appeal objection decision made by the auction committee through authorized officials can be submitted to the administrative court level. Thus, this appeal objection can or cannot be submitted to the state administrative court. The problem raised in this study relates to the legality of the appeal objection decision according to the provisions of Presidential Regulation No. 54 of 2010 and its amendments and the appeal objection decision according to the provisions of Presidential Regulation No. 54 of 2010 and its amendments, can be sued in the State Administrative Court, where primary legal materials and secondary legal materials are analyzed using a statutory approach and a conceptual approach. The results of this study indicate that the legality of the appeal objection decision according to the provisions of Presidential Decree No. 54 of 2009

2010 is a process carried out to establish the law as it is. Therefore, that the appeal objection in the procurement of goods and services is carried out because the auction participant is not satisfied with the objection answer given by the ULP/auction participant. Thus, the auction participant files an appeal objection and an appeal objection decision is issued by the Minister/Head of the institution/regional head/Head of Institution/authorized official. This refers to the state administrative court law, that the official's decision can be submitted to the state administrative court. Therefore, it is necessary that the appeal objection can be made to the state administrative court to answer legal certainty.

       Keywords : appeal objection decision, State Administrative Court

Introduction

The preamble to the 1945 Constitution of the Republic of Indonesia in the fourth paragraph states that:

"Then, in order to form a Government of the State of Indonesia that protects all the Indonesian people and all of Indonesia's native land and to advance general welfare, to improve the life of the nation, and to participate in implementing world order based on freedom, eternal peace and social justice, the Independence of the Indonesian Nation is formulated in a Constitution of the State of Indonesia,..."

The description above is the constitutional basis for the National objectives of the Republic of Indonesia which is characterized as a "Welfare State" (Wealth

State) ”,

The existence of the State Administrative Court in relation to the state government system according to the 1945 Constitution of the Republic of Indonesia shows its urgency while still realizing that it still takes time to develop Material Administrative Law in Indonesia in order to realize good governance (good governance), as Bintoro Tjokroamidjojo^{If the PA/KPA agrees with the PPK, a re-evaluation will be carried out or the auction will be declared a failure; or}  

1. If the PA/KPA agrees with the ULP, the PA/KPA decides that the determination of the winner by the ULP is final, and the PA/KPA orders the PPK to issue the SPPBJ."

An appeal is filed because the goods/services provider (auction participant) is dissatisfied with the objection's response. However, the appeal, according to Presidential Decree No. 70 of 2014 and its amendments, differs from the appeal as regulated in Presidential Decree No. 80 of 2003 and its amendments.

According to Presidential Decree No. 80 of 2003, an appeal objection is an administrative appeal submission, because the appeal objection is a follow-up to a letter of objection or letter of objection. (bezwaarschrift) against the State Administrative Court Decision (KTUN) which fulfills the elements of Article 1 number 9 of Law No. 51 of 2009. Meanwhile, according to the provisions of Presidential Decree No. 70 of 2014 and its amendments, although as a follow-up to the objection/rebuttal, this appeal objection is not included in the administrative appeal efforts as referred to in the provisions regarding state administrative courts, because the KTUN which is the reason for submitting the objection/rebuttal is a KTUN which cannot be sued to the PTUN or a KTUN which does not fulfill the elements of Article 1 number 9 of Law No. 51 of 2009.

In the state administrative court system, appeal objections based on the provisions of Presidential Decree No. 70 of 2014 and its amendments are regulated in Article 3 of Law No. 5 of 1986, which reads as follows:

1. If a State Administrative Agency or Official does not issue a decision, even though it is their obligation, then this is considered the same as a State Administrative Decision.
2. If a State Administrative Agency or Official does not issue the requested decision, while the time period as determined in the relevant statutory regulations has passed, then the State Administrative Agency or Official is deemed to have refused to issue the relevant decision.

From the description of the background of thought, the legality of the appeal in the State Administrative Court system needs to be studied. The problems studied are: how is the legality of the Appeal according to the provisions of Presidential Decree No. 70 of 2014, and its amendments, whether the Appeal according to the provisions of Presidential Decree No. 70 of 2014 and its amendments, can be sued in the State Administrative Court. This study aims to:

1. To identify and explain the legality of an appeal according to the provisions of Presidential Decree No. 54 of 2010 and its changes in the State Administrative Court system.
2. To find out and identify whether the appeal according to the provisions of Presidential Decree No. 70 of 2014 and its amendments can be made an object of dispute in the State Administrative Court system.

To find and explain the legality of appeals according to the provisions of Presidential Decree No. 70 of 2014 and its changes in the enforcement of administrative law through the system.

State Administrative Court

Description of the Justice Process

This process of justice was born or emerged since humans lived on this earth, it needs a rule or rules so that life can run safely, orderly, and regularly. Customs that apply in a society that are carried out continuously can become rules, both written and unwritten. Then, with the development of the times and the thinking of nations, these rules are needed so that order in society can be realized. With the development of increasingly complex society, these rules are not fulfilled by society.

The content or material of the law, in order to be accepted and obeyed by society, must contain justice for those to whom the regulations are applied. Therefore, the law is very full of noble values ​​that live in society, for example justice, welfare, benefits, equality and others. Thus, realizing justice can also be said to be the goal of the formation of law, even though in the application and enforcement of the legal rules there is no guarantee that justice is truly achieved because there is a lot of possibility of distortion.^[3]: 1) The ethical school which considers that in principle the purpose of law is solely to achieve justice; 2) The utility school which considers that in principle the purpose of law is solely to create benefits or happiness for citizens; and 3) The normative-dogmatic school considers that in principle law is solely to create legal certainty.

The three conventional schools of law's objectives outlined above are the objectives of law in the broad sense. Gustav Radbruck^[5] :

“Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress”  

Protection against fundamental lack of freedom is necessary for the existence of humans as social beings and is a condition for justice. The purpose of the existence of laws and regulations is to uphold justice. Failure to achieve this goal makes the laws and regulations a dangerous dam that blocks the flow of social development. This means that the purpose of the existence of law is to uphold justice.

Of the various concepts of justice throughout human history, it turns out that justice is studied and sought with 2 (two) approaches at once, namely:

1) approach emotional (using feelings/institutions); and 2) approachcognitive (using knowledge/logic).

In classical Greece itself, the concepts of justice, together with other concepts of virtue, such as the concept of peace and others, were originally depicted as gods and goddesses in Greek mythology, where dike mentioned as the goddess of justice (goddess of justice) who is believed to always fight to uphold justice against his enemies, namely the other gods and goddesses.

After the era of mythological justice, then in ancient Greece thoughts began to develop to define justice philosophically, although initially this new thought could not be separated, and was even a continuation of the concept of justice in the mythological version.

Moreover, the early approach to justice in classical Greece, like the early approach to other problems, actually started from the principle of the 'origin of the universe'. (cosmogony), where various traditional issues including issues of justice are encompassed in cosmic mythology (cosmological myths), where humans with their various searches enter into the concept of the universe. Therefore, the ancient Greek approach to law, politics, and justice begins with an orderly order of the universe. In this case, justice is interpreted as a type of embodiment of the philosophical cosmological principle to regulate the forces of nature as an element of the universe, to ensure balance and harmony among the elements of the universe. Thus, the beginning of the concept of justice runs concurrently with the beginning of the concept of natural law in its very classical sense. According to the understanding in ancient Greek times, the universe is orderly and everything has its own place or role. Justice will be disturbed when there is an imbalance in nature, including an imbalance in morality because something moves or changes its role in this universe. This concept of universal justice then transformed into the understanding of justice in Plato's view.

The Greek philosopher Heraclitus equated justice with the concept of natural law. Justice is defined as an understanding of humankind as part of a community, based on the order of the universe. (universe). Wisdom (wisdom) according to Heraclitus^[7]. 

Cicero, the great Roman philosopher and lawyer, then formulated three essential things that justice achieves which are also elements of justice, namely: "(i) goodwill, (ii) because it desires to benefit many; (iii) and for the same reason of admiration and admiration, because it snorts and ignores the very things towards which most men, inflamed by greed, are dragged" (translation: (i) good intentions, (ii) because of the desire to benefit many people, (iii) and for the same reason also faith and admiration, because both of them ignore the thing that attracts everyone to greed). Therefore, according to Cicero, justice must continue to be instilled and maintained in various ways for the sake of justice itself, because if not, there will be injustice and also for the sake of the honor and glory of every person. ^{Distributive justice, namely justice in the distribution of wealth or other possessions among each member of society. By distributive justice, Aristotle meant the balance between what a person gets and what he deserves.}

1. Corrective justice, namely justice that aims to correct unjust events. In this case, justice in the relationship between one and another is a balance. (equality) between what is given and what is received.

The view expressed by Gustav Randbruch is also relevant to be conveyed here because according to him the value of justice is the crown of every legal system. Law as the bearer of the value of justice, becomes the measure of justice or injustice of the legal system. Justice has both normative and constitutive properties for law. Justice is normative, because it functions as a transcendental prerequisite that underlies every dignified positive law. It is the moral foundation of law and at the same time the benchmark of the positive legal system. It is from justice that positive law stems, while justice is constitutive, because justice must be an absolute element for law as law. Without justice, a rule is not worthy of being law. Justice for Radbruch is more directed at rechsidee or justice as a legal ideal.^[10] the following.

“I shall now state in a provisional form the two principles of justice that I Believe would be chosen in the original position… the first statement of the two principles reads as follows:

First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

Second: Social and economic inequalities are to be arranged so they are both (a) reasonably expected to be everyone's advantage, and (b) attached to positive and offices open to all”

Justice is the primary focus of any legal system and justice cannot be easily sacrificed, as John Rawls said.^[12] can be detailed in 2 (two) concepts as follows: 

1. In a just society, every person has a great deal of freedom or liberty that is equal to the freedom or liberty enjoyed by others, and
2. Social and economic inequality can be justified as long as this inequality can provide the greatest possible benefits for the least advantaged groups in society.

In simpler terms, this concept contains the principles of justice, namely (i) the principle of equal freedom. (equal liberty), namely that every person has the same right to individual freedom as everyone else; (ii) the principle of equal opportunity, namely that economic injustice in society must be regulated to protect the disadvantaged, by providing equal opportunities for everyone on fair terms.

Therefore, according to John Rawls, in a just society, the freedom of every citizen is guaranteed through justice, which is not subject to political bargaining. (not subject to political bargaining) or in the context of social interests. A justice can only be tolerated when it is necessary to avoid an even greater injustice. Therefore, the virtues of human activities, truth and justice, cannot be compromised.

How can these two principles of justice be upheld? An interesting answer offered by John Rawls is that these principles must be chosen by parties in something called a pure position. (original position). According to John Rawls, the principles of justice are chosen under the shadow of ignorance and indifference. Original position This is a tool to explain how society will determine the conditions of justice in its environment if their views and thoughts are not influenced and confused by the position of wealth, class and actual abilities that they have.

The method offered by John Rawls is to defend what is truly meant by justice itself and what distribution principles are needed to realize this justice.

Description of Authority in the Courts

In various literatures, the terms power, authority, and authority are often found. Power is the core of state administration, so that the state can organize government well, then the state (organs) must be given power. With this power, the state can cooperate and serve its citizens. Max Weber called power related to law as rational or legal authority, namely authority based on a legal system which is understood as rules that have been recognized and obeyed by society and even reinforced by the state.

Authority or power holds a crucial position in the study of constitutional law and administrative law. This position of authority is so important that FAM Stroink and JG Steenbeek stated: "Het begrip bevoegdheid is and ook een kernbegrip in het staats-en administratief recht". From this statement, we can draw the understanding that authority is a core concept of constitutional law and administrative law.

The term authority or power is equated with “authority” in English and “authority” in Dutch.Authority Dalam Black's Law Dictionary interpreted as Legal power; a right to command or to act; the right and power of public officers to require obedience to their orders legally issued within the scope of their public duties.^[14] Authority (authority, competence)^[16]

Authority as a public law concept consists of at least 3 (three) components, namely: 1) Influence; 2) Legal Basis; and 3) Legal Conformity.

The influence component is that the use of authority is intended to control the behavior of legal subjects. The basic legal component is that the authority must always be able to be designated as having a legal basis. The conformity component contains the meaning of the existence of authority standards, namely general standards (all types of authority) and special standards (for certain types of authority).^[18]

The inadequacy of the principle “wetmatigheid van bestuur"is essentially rooted in the nature of government power. Government power (in the narrow sense) in Indonesia is popularly referred to as executive power, but in practice it is not purely executive power (implementing laws). In this regard, Philipus M. Hadjon stated, citing NE Algra's opinion, that: "Dutch literature rarely uses the term"uitvoerende macht", but rather use the popular term "board" which is associated with "send" and "steering". "Management"is formulated as the sphere of state power outside the sphere of legislative power and judicial power."¹⁹

Draft "board" carries the implication that government power is not merely a bound power, but is also a free power (free of charge, Free Ermessen, discretionary power).^[20]

Free power (free of charge) principle "wetmatigheid" is not sufficient. Free power here does not mean unlimited power, but remains within the legal corridor (legality), at least to written laws or legal principles. Public legal entities, such as states, governments, departments, regional governments, and institutions, require authority to carry out their duties. The authority granted to these public legal entities can be found in each country's constitution.

Administrative law is essentially related to public authority and the methods of testing that authority, as well as the law regarding control over that authority.^[22]

Regarding law enforcement, Sjachran Basah^[24] said that law enforcement in a broad sense includes activities to implement and apply the law and take legal action against any violations or deviations committed by legal subjects. In fact, it is further said that in a broader sense, law enforcement activities also include all activities intended so that the law as a set of normative rules that regulate and bind legal subjects in all aspects of social, national and state life is truly obeyed and truly implemented as it should be, while law enforcement from the aspect of administrative law according to Philipus M. Hadjon who stated that, in general there is no point in including obligations or prohibitions for citizens in state administrative laws and regulations, when the rules of conduct cannot be enforced by state administration (in the case where it is necessary). For regulatory makers it is important not only to prohibit actions that are not accompanied by permission, but also against actions that are contrary to laws and regulations that can be linked to a permit.²⁸

For these obligations or prohibitions to be effective, administrative officials must be given coercive powers to enforce the obligations or prohibitions in question. Philipus M. Hadjon states that administrative law enforcement instruments include supervision and enforcement of sanctions. Supervision is a preventive measure to enforce compliance, while the application of sanctions is a repressive measure to enforce compliance.^[26] Law enforcement in the field of administrative law has 2 (two) main elements, namely: 1) Supervision; and 2) Sanctions. 

Supervision is conducted to ensure citizen compliance, ensuring that mandatory or prohibited provisions are not violated. Therefore, sanctions are essentially a legal instrument typically imposed when legal obligations or prohibitions are violated.

The main elements of administrative law enforcement are also revealed in Nicolai's opinion, which states: 

“De bestuursrechtelijke handhavings–middelen omvatten (1) het toezich dat bestuursorganen kunnen uitoefenen op de naleving van de bij de krachtens de wet gestelde voorschriften en van de bij besluit individueel opgeledge verplichtingen, en (2) de toepassing van bestuursrechtelijke sanctie bevoegdheden”. (Administrative law enforcement means include (1) supervision that government organs can implement compliance with or based on laws that are established in writing and supervision of decisions that place obligations on individuals, and (2) the application of government sanctioning authority).^[28] 

Description of the Implementation of Legal Protection

Legal subjects as bearers of rights and obligations (de drager van de rechten en plichten), be it human (natural person), legal entity (legal entity), and position (ambt), can carry out legal actions based on ability (bekwaam) or authority (authority) that it has. In social interactions, many legal relationships arise as a result of legal actions from the legal subjects. These legal actions are the beginning of the birth of legal relationships, namely interactions between legal subjects that have legal relevance or have legal consequences. So that legal relationships between legal subjects run harmoniously, balanced, and fairly, in the sense that each legal subject gets what is his right and carries out the obligations imposed on him, the law appears as a rule of play in regulating these legal relationships.

The implementation of the law can take place normally and peacefully, but it can also occur due to violations of the law.^[30]

(the possibility of providing legal protection is important when the government intends to take or not take certain action against something, which by its action or omission violates (the rights of) certain people or groups).

            Regarding legal protection, then

Philipus.M.Hadjon^{Preventive legal protection facilities} 

Research conducted by a team from Council of Europe in 1975 about The Protection of Individuals in relation to Act of Administrative Authorities. This research focuses on preventive legal protection facilities, for example the right to hear and access to information. According to the research, the importance of “the right to be heard” is: first, individuals affected by government action can express their rights and interests, second, such a way supports good governance (good administration) and an atmosphere of mutual trust can be fostered between those who govern and those who are governed. In other words “the right to be heard” has a dual purpose, namely ensuring justice and ensuring a good government.

1. Repressive legal protection facilities

In general, the legal system in the modern world consists of 2 (two) main systems, namely civil law system and common law systemDifferent legal systems give rise to differences regarding the form and type of legal protection facilities for the people, in this case preventive legal protection facilities.

By using the western concept as a framework of thought with a foundation in Pancasila, the principle of legal protection for the people is the principle of recognition and protection of human dignity and honor which is based on Pancasila and the principle of a state based on law based on Pancasila.

The elements and characteristics of a Pancasila state based on law are:

1. Harmonious relations between the government and the people based on the principle of harmony;
2. Proportional functional relationship between state powers;
3. The principle of dispute resolution through deliberation and courts is the last resort;
4. Balance between rights and obligations.

Based on these elements, legal protection for the people from the government is directed at:

1. Efforts to prevent disputes from occurring or to reduce the occurrence of disputes as far as possible, in this connection preventive legal protection facilities should be prioritized over repressive legal protection facilities;
2. Efforts to resolve disputes between the government and the people through deliberation;

Settlement of disputes through the courts is the last resort, the courts should be the ultimum remedium and the courts should not be a forum for confrontation so that the courts should reflect a peaceful and calm atmosphere, especially through their procedural relations.