PERBUATAN MELAWAN HUKUM YANG DILAKUKAN OLEH PENGUASA (ONRECHTMATIGE OVERHEIDSDAAD) DALAM PUTUSAN PENGADILAN: SEBUAH STUDI KASUS

Abstract

The government often do not escape the existence of legal actions in which violations occur (unlawful acts by the government). This case was the dispute between the Congregation of the Sisters of the Virgin Mary against the President of Republic Indonesia cq the Minister of Home Affairs of Republic Indonesia cq the Governor of Central Java cq the Regent of Pekalongan, and the Director of RSUD Kraton in Pekalongan, Central Java regarding unlawful acts committed by the government. When this dispute occurs, the Regulation of the Supreme Court of Republic Indonesia Number 2 of 2019 has not been issued concerning Guidelines for the Settlement of Government Actions and the Authority to Adjudicate Unlawful Acts by Government Agencies and/or Officials (Onrechtmatige Overheidsdaad). The research question is: can the government as an instrument of state administration in carrying out its duties and functions commit acts against the law? This writing uses the Normative-Empirical legal writing method, a combination of normative legal approaches with the addition of various empirical elements. This method implements normative legal provisions in every particular legal event occuring in society. It can be concluded that acts against the law can be committed by the government. The lawsuit against unlawful acts by the government is the authority of the general court, not the state administrative court. However, with the issuance of Regulation of the Supreme Court of Republic Indonesia Number 2 of 2019, then it becomes the authority of the state administrative court.