The case of land acquisition for the development of public interest is one of the sensitive cases in the court, especially in Administrative Court. The decision of the judges on this kind of case will have a broad impact because it is related to hundreds even thousands of people. As we know, the land is one of the precious thing for every human being, because it is a place to live and having their life. Then, if the government would like to take it for the development of public interest, the way of it supposes to be in fairness for both sides, the government and the people. To prove that the way is fair or not, in the jurisdiction of Administrative Court, the judges of Administrative Court should take a role seriously. The Administrative Court judges should take a look at three essential points in solving this kind of case which are the authority, the procedure and the substantial matters in the case.
At first, the Administrative Court judges should check the authority of the government who issues the decision. Based on the doctrine of authority and Law 30/2014 (The Government Administration Law), there are three things to check: the time, the place, and the material of the authority from the issued decision. First, the time. It is about the time of the subject and the time of the object. The time of the subject talks about whether the person who represents the government in issuing the decision is legally still on charge or not at the time the decision is issued. If the person is not in charge, in example because the person has already retired, or if the person is in another position in the government when issuing the decision at that time, those are mean that the person has no authority to issue the decision. Then, the time of the object. It is about the time limit that the decision should be made. If, the decision is made not in the time that it has to be, in example it is out of time limit or before the time, then the decision that has been made is considered as the decision that is issued without the authority of it. Second, the place. It means the decision that is issued should be in the legal working area of the government. In example, the legal working area of the Government A is only in Province A, so the Government A does not have the authority in making the decision in Province B. Third, the material of the authority. It talks about the source or the limitation of the authority, whether the authority comes from mandate, attributive, or delegation authority. It has the correlation with whether the regulation states directly or not about allowing the government to issue the decision.
Second, the Administrative Court judges should be careful on what kind of procedure that has been stated and proved as the violation of the regulations. The big question here is about, is the wrong in the procedure really have a big impact on decision or it could be acceptable. To decide this, the judges must consider about the formal procedure and the substantial procedure. The formal procedure means the formality of the procedure. In example, something is wrong during the process of issuing the decision which is happened in the editorial things such as a wrong type on the name of the people and the name of the village. This thing can be tolerated. While, the substantial procedure is a thing that has to be happened as the procedure in issuing the decision. In example, the regulation states that the government should do the hearing with the people who have the land on the site that the government will take, but the government does not do the hearing. It eliminates the right of the people. This kind of the wrong type procedure could not be tolerated.
At last, the Administrative Court judges should take a deep consideration on substantial matters in the case. The decision could be issued by the right authority, but not based on the right procedure. In this kind of situation, the easiest way is to decide that the government’s decision is wrong and has to be canceled. But, does it bring the justice? Here we need the consideration of the substantial matters. The substantial matters talk about the purpose of the law that the judges want to achieve in the case. As we know, based on the doctrine, there are three purposes of law, which are the law certainty, the fairness, and the utility of law. The law certainty means everything should be based on the law. Then, the fairness means the law supposes to bring the fairness to the people. At last, the utility of law means the law has to bring the greatest amount of good for the greatest number of people. In the book of Ahmad Ali, titled “Menguak Tabir Hukum”, there is a theory about the casuistic justice. It is stated that the justice depends on the case, sometimes the justice goes to the law certainty, another time it goes to the fairness, and maybe to the utility of law, but it never be all the three at the same time. In example, if there is no hearing for the owner of the land which has an unused small land, then the government is proven false on this, the judges should decide wisely whether the wrong of the government should cancel the decision that has been made for the sake of the one owner land’s right or can this wrong be tolerated. If the judges want to achieve the law certainty, the judges should cancel the decision. In the other side, if the judges want to achieve the utility of law, the judges should not cancel the decision of the government. It is a fight between one person’s right (the owner) and the society’s right (thousands of people who will use the street that will be built on that land). So, the judges should take a deep thought about it.
In conclusion, there are three important things to consider by the Administrative Court Judges while handling the case of Land Acquisition for development for public interest, that are the authority, the procedure and the substantial matters. All those three will really help the jugdes to decide the case fairly. So, in the name of justice and fairness, the Administrative Court Judges should be aware about those things.
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