New Courts in Asia by Harding Andrew;Nicholson Penelope;

Author:Harding, Andrew;Nicholson, Penelope;
Language: eng
Format: epub
Tags: Interdisciplinary Studies
Publisher: Taylor & Francis Group
Published: 2010-12-29T00:00:00+00:00

Judgments

Whereas suspension has a clear added-value for plaintiffs, the other remedies the Administrative Courts can offer are rather limited. As stated earlier in this chapter, the main difference with the situation as it existed before the Administrative Courts were established is that they can actually order the defendant to revoke the contested decision, whereas an action based on government tort could lead to compensation only. However, because the general courts gave a very extensive interpretation to the concept of damages, in fact their powers equalled those of the Administrative Courts.53

A superficial reading of Article 116, in its original form, gives the impression that the Administrative Courts are even less powerful, in the sense that their powers are limited to ordering revocation of the decision only. If the defendant fails to fulfil this obligation the Court can address his or her superior. However, the Courts do not depend on this superior legally, because if the defendant still has not complied with this court order after four months, the decision ‘shall have no legal force anymore’.54

An important development has been the interpretation by the Administrative Courts of Article 116’s para. 9, which allows the Administrative Court to order the defendant to issue a new decision. In his textbook, Indroharto has argued that the judge could give the defendant some guidance on this matter, by stipulating that the new decision should be in line with the considerations in the judgment.55 Given the general tendency of the Administrative Courts to widen their powers, it will come as no surprise that the Courts have interpreted this liberal reading of the ACA in an even more liberal manner. Judges have not themselves issued an administrative decision in lieu of the original one, but in some cases they have actually prescribed for the defendant what should be the contents of the new administrative decision.56

Sometimes Administrative Court judges themselves seem not to fully understand the legal consequences of their judgment annulling the litigated decision. Thus, in the widely applauded Tempo v. Minister of Information, the Jakarta Administrative Court not only ordered the defendant to rescind his revocation of Tempo’s publication permit, but also to issue a new one. Apparently, the judges were not aware that rescission of the revocation would automatically bring back to life the original publication permit. In itself, this is not such a serious matter, but it becomes an issue if we take into account how many problems occur in implementing administrative court judgments, a matter discussed below.

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