In 21 August 2015, the Supreme Court of the Republic of Indonesia issued Supreme Court Regulation No. 5 of 2015 regarding Court Procedures to Obtain Decision Upon Receiving Petition for Administrative Decree and/or Action from the Government Entity and/or Official ("PERMA 5/2015"). PERMA 5/2015 is enacted as the implementation regulation of Article 53 of the Law No. 30 of 2014 on State Administration Law ("Law 30/2014").
Based on Article 53 of Law 30/2014, government entity and/ or official ("Government") is obliged to issue and/or perform an Administrative Decree and/or action ("Administrative Decree/Action") within the limited time period as provided in the relevant regulation. If the relevant regulations do not regulate the time period, the Government should issue and/ or perform the Administrative Decree/Action no later than 10 (ten) working days upon receiving the application for such Administrative Decree/Action.
In the event the Government failed to issue and/or perform the Administrative Decree/Action until such time period has lapsed, the application will be deemed as lawfully granted. Accordingly, the petitioner is required to submit a petition to the relevant State Administrative Court (Pengadilan Tata Usaha Negara) ("Court") to obtain Court decision on the petition to issue and/or perform an Administrative Decree and/or Action rom the Government ("Petition").
PERMA 5/2015 further set out the detailed procedures to obtain the Court decision on the Petition, as follows:
The Petition must be written in Indonesian Language by the applicant or his attorney in 5 (five) sets, which should consist of:
1. Identity of the Petitioner;
2. Merits of the Petition, including:
a. Legal Standing.
The petitioner must describe the damages and losses suffered due to the petitionee's failure in issuing and/or performing the Administrative Decree/Action within the designated time frame.
b. Ground for the Petition.
The petitioner must clearly describe the petitionee's authority, as well as the procedure, and substance of the Administrative Decree/Action according to the laws and/ or good governance principles.
3. Request of the Petition which shall include the following:
a. To grant the Petition from the petitioner; and
b. To order the petitionee to issue the Administrative Decree/Action.
4. The Petition must be signed by the applicant or his attorney. Other than submitted in hardcopy, the Petition may also submitted in digital form through a compact disc or similar devices.
EVIDENCES AND EXAMINATION
The petitioner shall present evidences which at least consist of the Petitioner's identity, relevant documentary evidences, list of candidates for witnesses/experts, and electronic documents/information (if necessary).
The court examination proceeding will be as follows:
a. Examination of the merits of the Petition;
b. Examination of the response from the petitionee;
c. Examination of documentary evidences;
d.Witness and/or expert examination;
e. Examination of electronic information/documents.
Article 53 of Law 30/2014 provides that Court shall render its decision on the Petition in no later than 21 (twenty-one) days after the Petition's date of submission.
The dicta of the Court decision may contain the following:
a. To declare the Petition as inadmissible, if the Petition does not meet a formal requirement;
b. To grant the Petition from the Petitioner and to order the Government to issue Decree/Action;
c. To reject the Petition, if the Petition is groundless;
d. To declare the Petition as null, if the petitioner fails to attend the court hearing for 2 (two) consecutive times since the first court hearing notification without a proper or reasonable excuse.
Based on Article 16 of PERMA 5/2015, the Court Decision is final and binding, and thus not subject to appeal.
The issuance of PERMA 5/2015 is expected to provide clear guidance on the procedures to obtain Court decision upon any failure by the Government to issue and/or enforce any application of Administrative Decree/Action. It is also hoped to serve as a solution to any party facing the prolonged process or delay response from the Government to obtain an Administrative Decree/Action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.