Administrative litigation

For students of law it will be interesting to follow the state administrative court's case of one of the 16 banks whose banking license was recently revoked. Since the administrative judicial system in this country is still relatively new, and the current litigation is rather noteworthy, a law student may well wish to pay attention to it.

The latest development in the case was an order issued by the chief of the appellate administrative court to the chief of the state administrative court annulling the latter court's decision to delay the revocation the bank's license and the assignment of a caretaker for the bank.

From a legal perspective, it is interesting to note that, strictly speaking, it seems that the order of the chief of the appellate court does not straightforwardly annul the decision per se. It is questionable whether he has the power to do so, because the supervisory powers which the chief of the appellate court can exercise over the judicial proceedings of the state administrative court are confined to providing guidance, reprimands and warnings when necessary.

But these supervisory powers cannot derogate from or infringe upon the freedom of the administrative court judges in the litigation. This is stated in Article 52, paragraph 4, of Law No. 5/1986 on the administrative court.

On the other hand, there are plenty of factors which support the view that the defendants, being the finance minister and the governor of Bank Indonesia, have a strong case. One outstanding factor is the premise that an executive act, as a rule, is regarded lawful unless it is proven to be a willful, arbitrary act. Now it will be hard to prove that the pertinent executive acts are in contravention of the laws in force, or that they constitute arbitrary acts.

Another factor is that pleas in the administrative court must be, unlike in a civil court, restricted to one kind of petition only, namely the annulment of the executive act which harms the complainant's interests.

As things stand, it appears that even though the interlocutory decision was turned down, the final verdict is yet forthcoming. But by now its outcome should be predictable.

By the same token, if the defendants lose the case, the outcome of their appeal, lodged with the appellate court, seems to be transparent likewise. But whatever the outcome may be, the last remedy of appeal to a higher court is open to either party.

SAM SUHAEDI

Jakarta