Discourses of Legal Certainty in Execution of Administrative Court Decision

After the enactment of the Law of Government Administration implied to regulation concerning the execution of the Administrative Court Judgment. Some pro-cons academic and practice discourses, arguing that the enactment of the Law of Government Administration is the culminating point from the limited role of the Administrative Court on enforcing the administrative law and the argument that the regulation of the Law of Government Administration contains various ambiguities norms in concern with implementation in the Administrative Procedural Law System. This study aims to analyze and discuss concerning regulation of the provisions of the Administrative Court Ruling execution, constrains in judgment execution and the legal certainty for the justice seekers in the provisions of the Administrative Court Ruling execution after the enactment of the Law of Government Administration. This paper is using normative and empirical method. The data that using consisted of primary and secondary data, were analyzed using qualitative methods. This study results is presented in a descriptive analysis paper.


INTRODUCTION
The provisions of Article 24 Paragraph (2) of the 1945 Constitution of the Republic of Indonesia (hereinafter referred to as the 1945 Constitution of the Republic of Indonesia) stipulates that judicial power is exercised by a Supreme Court and the judicial body underneath it within the General Judiciary, the Religious Courts, the Military Courts, the Administrative Court, and by a Constitutional Court. 1 This provision confirms that Indonesia as a state of law as affirmed Article 1 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia. 2 This means that the law must be a guideline, and must be obeyed and also upheld by citizens and the state. In addition, in the implementation of duties and authorities, the government must be guided by the law and be able to account for these tasks. 3 The prerequisites of the Indonesian rule of law are marked by the existence of an administrative or state administrative court, which is regulated through Law No. 5 of 1986 jo. Law No. 9 of 2004 jo. Law No. 51 of 2009 concerning State Administrative Court (hereinafter referred to as State Administrative Court Law) as the basis for the birth of administrative justice in the Indonesian legal system.
The existence of the State Administrative Court has urgency in relation to review the validity of government actions, namely the issuance of Administrative Decision. 4 The Administrative Decision which is detrimental to a civil person or legal entity as the object of a lawsuit for a state administrative dispute in accordance with the absolute competence of the Administrative Court. This is potentially a preventive measure for government actions that have the potential to be incompatible with the laws and/or general principles of good governance. On the other hand, this can be interpreted as legal protection for the people. The provisions of Article 47 of the Administrative Court Law regulate the absolute competence of the Administrative Court to examine, decide upon and resolve state administrative disputes.
The administrative dispute is a dispute arising in the field of state administration between a person or a legal entity with a state administrative agency or agency both at the center and in the region, as a result of the issuance of a state administration decision, including an employment dispute based on statutory regulations, as stipulated in Article 1 number 4 of the Administrative Court Law. Whereas, the meaning of a Administrative Decision is a written stipulation issued by a state administration body or official containing legal action on state administration which is based on concrete, individual and final laws and regulations that lead to legal consequences for a person or legal entity civil law as referred to in the provisions of Article 1 number 3 of the Administrative Court Law.
The existence of institutions with the authority to review the validity of government actions is becoming increasingly important in the welfare state. Philosophically, the principle of the rule of law of Indonesia is a dynamic rule of law state or the principle of the welfare state, which emphasizes in the welfare state, 5 state interference is so extensive and profound through government actions in the life of the community in the context of service to the community to achieve the welfare of the people, as one of the country's goals.
The results of review of whether or not a governmental action in the form of a Administrative Court Judgment is expected to be truly carried out in order to achieve | 91 openness and guarantee access to justice for the people. 6 The emphasis is on realizing legal certainty to realize legal protection for the people from government actions in carrying out government functions. 7 This also means that the Administrative Court for the community becomes an oversight body for government actions that always upholds the dignity and dignity of the people, and is always guided by the law. 8 Legal certainty is provided through the state administrative court which results in a court decision. In the case of granting a claim by the plaintiff by stating that the administrative decision of the defendant is declared invalid or invalid, a court decision can determine the obligations that must be carried out by the defendant namely the revocation of the relevant administrative decision, also the revocation accompanied by the issuance of a new state administrative decision, or issuance of state administrative decisions in the case of a lawsuit referring to Article 3 of the Administrative Court Law. This obligation can be accompanied by the imposition of compensation or rehabilitation. In this case, the decision of the Administrative Court can also give certain rights to the disputing parties, especially the plaintiff. The rights granted through a court decision should be enjoyed properly by the plaintiff through the court's decision.
In the Administrative Court, court decisions that are inkracht van gewisjde or have legal force still contain the nature of erga omnes namely the court's decision applies to anyone and is not limited to the parties to the dispute. 9 If the party who gets the right cannot properly enjoy his rights arising based on a court decision, it means that there has been a denial of justice, and a denial of legal certainty and legal protection of the people. 10 Decisions of the Administrative Court give rise to subjective rights on the one hand and on the other hand give rise to obligations for the other party to fulfil those subjective rights. For the sake of legal certainty, the rights arising as a result of the decision must be enjoyed by those entitled to through a predetermined mechanism. 11 The way to obtain subjective rights arising from decisions or those contained in condemnatoir decisions is done through requests for implementation of decisions/execution of decisions. In the 6 Butt, Simon. (2013) The court's ruling on the new Administrative Court has executive power and can be implemented/executed after obtaining permanent legal force. 12 Copies of decisions which are inkracht van gewisjde or have permanent legal force by the Registrar of Courts are delivered to the parties who are litigants. There is an obligation of the defendant to obey and implement the contents of the court's decision in good faith and responsibility. If the defendant does not intend to implement the decision in the case of a decision concerning the obligation for the defendant to revoke the Decision that has been issued, then within 4 (four) months after the court's decision which is inkracht van gewisjde, the disputed decision has no legal force anymore, and no more execution attempts are needed. This is because by automatically passing the four month deadline, the disputed decision has no legal force.
When the court ruling establishes an obligation for the defendant to revoke the administrative decision of the sued state and issue a new state administrative decision, and within a period of three months the defendant does not implement it, the plaintiff has the right to submit an application to the Chair of the State Administrative Court to order the defendant party to carry out the court decision order. Based on the request of the plaintiff, the Chair of the Court orders the defendant to carry out the order in the Court's decision.
If the order in the verdict is not carried out, the defendant will be subject to a number of forced efforts in the form of payment of a sum of forced money and/or administrative sanctions. 13 This is done or not depends on the defendant himself. If after the imposition of the forced attempt the verdict is not carried out also by the defendant, this will be announced through the local print media by the Registrar. However, problems related to the non-implementation of court decisions that give certain rights to the plaintiff, opening opportunities for the defendant to be reluctant to implement the ruling and in the case of court decisions that are not possible to impose its implementation has implications for the absence of legal certainty.
The birth of Law No. 30 of 2014 concerning Government Administration (hereinafter referred to as the Government Administration Law) then made various changes related to material laws and formal laws that apply to administrative law. 14 The Government Administration Law in addition to regulating material legal provisions, also provides formal legal arrangements that apply to the state administrative procedural system. In fact, this regulation has caused various confusions by various related parties (especially judges) in | 93 the administration of administrative law in the Administrative Court. Some forms of changes in the regulation of the Government Administration Law are related to the regulation of the expansion of the meaning of state administrative decisions as objects of state administration disputes, arrangements related to positive fictitious decisions, the authority to adjudicate the abuse of authority by the government apparatus, arrangements related to administrative efforts, not governing the limitation of the amount of compensation and including special arrangements related to the implementation of the decision becomes an urgency to be comprehensively studied after the entry into force of the Government Administration Law.
Based on the background description, this paper focuses on the subject of discussion, namely legal certainty in the execution of the Decree of the Administrative Court both through the regulation of the Administrative Court Law and the Government Administrative Law, by raising several formulations of the problem namely how the execution provisions decisions, constraints faced, and how legal certainty for the community in the provisions of the execution of the decision of the Administrative Court after the enactment of the Government Administration Law.
The issue through legal research is an interesting and important issue in the legal system of the Administrative Court. The initiative raised the legal issues in this study which is intended as an effort to strengthen the state administrative procedural law system specifically to measure the strength of the execution of decisions and answer various confusion arising from all elements in the state administrative procedural law system specifically regarding the regulation of provisions related to the execution of the Administrative Court decision State Enterprises are good at two different laws namely the Administrative Court Law and the Government Administrative Law.

METHOD
This paper is based on a normative writing methodology format with the image of the law as a prescriptive discipline, 15 focusing on the law as a norm 16 or a norm system or hierarchy of laws and regulations 17 and using empirical juridical writing methods. The merger of the two methods in order to complete the normative study through empirical research in the form of field research that is focused on the second problem, namely on the Denpasar That "coercion from public officials" to realize the contents of the decision there is no provision governing it, or it can be said there is a legal vacuum. It is also unclear who should order the "coercion", and who is leading the "coercion". Article 116 Paragraph (3) of the Administrative Court Law regulates the word "ordered", but in the context of the plaintiff's request, which is stated when the defendant is determined to carry out the obligations as has been affirmed in the provisions of Article 97 Paragraph

a. Revocation of Administrative Decision
After the decision of the state administration court whose sentence is conditional is handed down, the defendant namely the state administration body or official is obliged to carry out the contents of the decision. In its implementation, the defendant may be reluctant to implement the contents of the decision voluntarily, so the implementation of the contents of the decision should be carried out by force through execution.
Related to the execution of the obligation to revoke a state administration decision, contained in Article 97 Paragraph (9) letter (a) of the Administrative Court Law. The procedure for carrying out the execution of the decision containing the obligation to revoke this decision is regulated in Article 116 Paragraph (2) of the Administrative Court Law, and after 60 (sixty) working days of the court's decision the inkracht van gewisjde is received but by the defendant not carried out then the disputed decision has no legal force anymore. Therefore, no other efforts are needed from the court, because the state administrative decision automatically loses its legal force which is commonly referred to as automatic execution. 19 Although not revoked, but the decision has no legal force anymore.
Regarding the revocation of the decision based on a court decision which is inkracht van gewisjde, for example, in the case of a plaintiff who faces a decision that is burdensome, for example related to the dismissal of an employee or an order to demolish a building. If the plaintiff's lawsuit is granted by the court and the defendant is sentenced to revoke the said decision, the plaintiff will have obtained his rights only after the stipulated deadline, which is four months after the judicial decision which has permanent legal force is submitted to the defendant.

b. Issuance of New Administrative Decision
The obligation to issue a new decree is regulated in two different articles, namely Article 97 Paragraph (9) letter b and Article 97 Paragraph (9) letter c of the Administrative Court Law. There is a difference between the two articles, Article 97 Paragraph (9)

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Article 97 Paragraph (9) letter c of the Administrative Court Law regulates the issuance of negative fictitious state administrative decisions. In a case like this the defendant actually did nothing, but by law this situation is the same as the defendant issued a state administration decision containing the rejection. The reason is that the defendant as the public service provider is obliged to serve every community request that is his obligation, if neglected, even though he has not done anything, the law considers that the defendant has issued a decision to reject the request or a negative fiction. 20 An applicant who feels aggrieved can file a lawsuit over the state of Regarding the role of the Chairperson of the District Court in the execution process, he played the role of "ordering" and "leading" the execution.
In this function, the Chairperson of the District Court is in the execution process since there is an application for execution. The Chair of the District Court in ordering and leading the execution is based on the provisions in the HIR/RBg and is assisted by institutions such as clerks and clerks.
In the state administration procedural law,

State Administrative Court Execution Provisions According to Government Administrative Law
Provisions for the execution of decisions on State Administrative Court are regulated in the Administrative Court Law. In its development with a background to improve governance, also provide legal protection for citizens and government officials themselves, and to realize good governance, the Government Administration Law was enacted. 25 The Government Administration Act is the legal basis for the administration of government in enhancing good governance and creating a better, transparent and efficient bureaucracy. In addition, the regulation of the Government Administration It is an obligation for the Agency and/or Government Official to determine and/or make a Decision and/or Action on the existence of a request from the public. Such decision and/or action must be taken within the period stipulated in the legislation or if the time period is not regulated, referring to the provisions of Article 53 Paragraph (2) of the Government Administration Law, no later than ten working days after the application is received in full. If there is no response beyond this time period, then based on a positive fictive principle, the request is considered granted. As a legal basis for requesting the defendant to establish/make a decision or action as requested, the community members have the right to appeal to the court to obtain a decision to accept the request. Upon this application, the court must decide within a maximum period of twenty one working days after the date of the application to the court. If the court decides that the request is accepted then based on Article 53 Paragraph (6) of the Government Administration Act, within a 31 Putrijanti, Aju. (2015). Kewenangan serta Obyek Sengketa di Peradilan Tata Usaha Negara Setelah Ada UU No. 30/2014tentang Administrasi Pemerintahan. Masalah-Masalah Hukum, Universitas Diponegoro, 44(4), p. 430. doi: https://doi.org/10.14710/mmh.44.4.2015 maximum of five working days after the decision is decided, the government must determine the decision to implement the court's decision.
In the Government Administration Act for defendants who do not comply with the contents of court decisions in accordance with Article 53 Paragraph (6) are threatened with administrative sanctions. These administrative sanctions are regulated in Article 80 Paragraph (2)

Constraints in Execution of Judicial Decisions in State Administration after the Entry into force of the Law on Government Administration
After Decree is defined as a decision on the rejection of the application submitted.
Basically, the negative fictive principle is based on the silent attitude of the official/agency/institution upon a request to issue a decision, but the official/agency/ institution does not issue the said decision. The official silence is then assumed that the official/agency/institution has issued a decision but in fact never existed so it is called a fictitious decision. That the official silence means that the request is rejected, so that it is negative, so that the negative fictive principle is born.

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The negative fictive principle is the opposite of the positive fictive principle adhered to by the Government Administration Act. This positive fictive principle in Article 53 paragraphs (1) through (6) of the Government Administration Act with provisions governing the time limit for obligations in the context of establishing/ making Decisions or Actions in accordance with the law, and in legislation does not determine the time limit for such obligations, the said Government Agency/ Institution/Official is obliged to stipulate/execute Decisions and/or Actions within a limit of up to ten working days after the application has been received in full by the agency/Institution/official. If beyond this time, the Agency and/or Government Official does not determine/make a Decision or Action, the request is deemed legally granted, and then the petitioner submits the application through the Court in order to obtain a decision regarding receipt of the request. The Court is required to decide on the application no later than twenty-one working days since the application was submitted, and it is stated that government agencies/institutions/ officials must determine the decision to implement the court's decision no later than five working days after the court's decision is determined.
Basically like a negative fictive principle, this positive fictive principle is also based on the attitude of silence from officials/institutions/state administrative bodies. The difference lies in the end result, where the positive fictive principle of silence actually means that the official accepts or grants the request in question.
That the positive term in the positive fictive principle is defined as acceptance or granting of a request.
The positive fictive principle then creates obstacles, how is its position with the negative fictive principle adhered to in the State Administrative Court Law. As a solution, the legal preference used, namely the lex posterior derogate legi priori principle, applies to two equal rules and regulates the same problem to determine that the latest/newer rules outperform the older rules. In the process of drafting legislation So another obstacle is that there will be no change without the willingness of government agencies/institutions/officials to issue the decision. In addition, the imposition of sanctions is also unclear the legal basis that becomes the reference and there are no implementing regulations. So after the Government Administration Act regarding the execution of the judicial ruling the state administration still faces many obstacles in its implementation so it does not reflect legal certainty.

Legal Certainty for the Community in Provisions for Execution of Judicial Decisions in State Administration After the Entry into force of the Government Administration Act
In carrying out the execution process, of course the ultimate goal is for a court decision to be carried out. The implementation of the decision must of course have a legal basis regulating who is authorized to order and lead the execution, who carries out the execution, and how the execution procedure is carried out.
The rule of law regarding executions in judicial bodies is very crucial.
Execution is a step that justitiabelen is expected to provide justice for a case that it faces. If we talk about law enforcement, the execution process is the last step especially if the judicial decision is not heeded. Not implementing a court decision can occur in a State Administration case. However, the decision of the State Administrative Court is very dependent on legal awareness or the willingness of the officials concerned to implement the contents of the decision 32 or often referred to as execution based on self respect.
The importance of execution in implementing decisions is related to one of law enforcement functions, namely legal certainty, as well as justice and expediency. Legal certainty is a guarantee for those entitled according to law to be able to obtain their rights and that a decision can be implemented, because it is a 32 Rafiqi, Rafiqi. (2017) form of protection for the judiciary against arbitrary actions. 33 The implementation of decisions is also related to the independence of the court, where the state must be able to force the government/executive to obey the contents of the court's decision and that the court must be given the authority to ensure the implementation of the contents of the court's decision. 34 In a state administrative court decision based on the State Administrative Court Law, if the lawsuit is granted, then in the ruling the ruling shall stipulate an obligation that must be carried out by a com-munity/Institution/Administrative Officer as contemplated in Article 97 Paragraph (8) to (11) For additional obligations, namely the obligation of the defendant to pay compensation and carry out rehabilitation, theoretically, the execution can take place.
Nevertheless, it is still unclear who led the execution. Implementation also depends very much on government organs. The element of coercion as a characteristic of execution is not apparent, so potentially there is a possibility of being unworkable.
This shows the existence of legal obscurity (blurred norms) regarding because it gives room for uncertainty. This legal obscurity is also motivated by the absence of legal vacuum mentioned above. On the other hand the amount of compensation and compensation that the claimant can get is relatively small. As Article 3 Paragraph (1) of Government Regulation No. 43 of 1991, the amount of compensation can be obtained by the plaintiff, which is a minimum of two hundred and fifty thousand rupiahs and a maximum of five million rupiahs. The amount is certainly not proportional to the amount of compensation in civil cases that are not normatively limited.
That the Decree of the State Administrative Court is binding on the parties to the dispute (inter partes) as well as binding on everyone (erga omnes).
According to Bagir Manan, erga omnes decisions have the advantage of having legal certainty over state administrative decisions sued in the State Administrative Court, while the other side is viewed negatively, making the State Administrative Court Judge, besides performing the judicial function by establishing the law, but also has widened to carry out the function of legislation by forming laws.
The legal certainty of the Decree of the State Administrative Court, which is erga omnes, is not followed by certainty over its implementation. Provisions regarding the execution regulated in Article 116 Paragraph (4)  Obligations that must be carried out by the related Agency/Institution/Official are then to determine the decision to implement the decision to accept the application by the Court. The decision (by the State Administration Agency/Officer/Institution) to execute the decision to accept the application by the court is constitutive or declarative in nature. Referring to Article 17 number 2 of the Supreme Court Regulation No. 8 of 2017, if the Court accepts the petition for the decision to accept the petition to read the Petitioner's request and requires the Agency/Institution/ Government Official to issue a Decree/take action referring to the Petitioner's request. So the contents of the decision to accept the application by the Court in the Government Administration Act is an obligation for the Administrative Agency/ Institution/Official to issue a Decision/take Action.
The obscurity of forced efforts related to the execution of the execution was also experienced in the implementation of Article 81 Paragraph (2) of the Government Administration Act. The forced effort is closely related to the execution of the decision to accept the application based on the implementation | 111 of a positive fictive principle that was not carried out by the state administrative body/official. Where sanctions in the Government Administration Act are basically similar to sanctions as for the State Administrative Court Act that is forced money (dwangsom) or temporary dismissal with/without obtaining office rights.
Regarding forced money, there are no implementing regulations related to the procedures and mechanism for the payment of forced money that regulates the procedure for imposition, both time, the amount of forced money to be paid and related to the subject of imposition of forced money, whether charged to the agency/administrative officer or to the person of the Administrative official. As well as the temporary dismissal, there are no specific implementation rules yet so that this effort cannot be implemented.
From this description, the lack of legal certainty related to execution in the State Administrative Court Law. In addition to the revocation of the State Administrative Decree as referred to in Article 97 Paragraph (9) letter a of the State Administrative Court Act, for which automatic execution applies as stipulated in Article 116 Paragraph (2) of the State Administrative Court Law, the execution of execution in Administrative Court is basically again, it depends on the awareness and good intentions of the state administrative body/officials to carry out the content of the decision in a self respect manner which results in legal uncertainty. That is because only the state administrative body/officials can carry out the contents of the decision. In addition, forced efforts to encourage the implementation of the contents of the decision are also unclear, so the regulations cannot be implemented.
The public interest will potentially be greatly harmed because in terms of the execution provisions of the state administrative court decision the execution of the execution is related to the defendant's obligation to issue a state administrative decision depending on the will or good will of the defendant. The forced effort as an effort related to the execution of the court's decision cannot be realized. So if the defendant is reluctant/does not implement the contents of the decision, the execution of the state administrative court's decision cannot be carried out.

CONCLUSION
Based on the study examined in this paper, it can be concluded that the verdict of the state administrative court can be executed is the verdict of the state administrative court inkracht van gewisdje (which has permanent legal force) and is condemnatoir. Constraints faced in the implementation of the execution of the decision of the Administrative Court after the enactment of the Government Administration Act are still the same as before the enactment of the law. Where there are four things that become obstacles, namely who orders and leads the execution, who carries out the execution, and how the procedures are carried out, the law does not regulate and then the implementation cannot be forced because it is highly dependent on government organs. The element of coercion as a characteristic of execution is not apparent, so potentially there is a possibility of being unworkable. Because the execution of the Administrative dispute is still based on self respect, and due to unclear rules both in the Administrative Court Law and the Government Administration Law and the absence of implementing regulations related to forced efforts, the defendant's obligation to carry out his obligation to issue state administrative decisions cannot be forced, so that potentially could not be implemented, causing legal uncertainty. That is because the rights of the people contained in the state administration court ruling that inkracht van gewisjde cannot be realized. So that people do not get legal certainty in terms of the provisions and implementation of the execution of the State Administrative Court which is their right.