TWO GUARDS OF STATE ADMINISTRATIVE OVERSIGHT:
THE ROLE OF THE OMBUDSMAN AND THE ADMINISTRATIVE COURT IN HANDLING SYSTEMIC MALADMINISTRATION
Authored by:
Juventhy M. Siahaan, S.H., M.H.
Managing Partner, JBD Law Firm
I. Introduction
A regional regulation regarding business licensing contains non-transparent procedures and creates massive loopholes for illegal levies. Every day, dozens of small business owners fall victim. They report to various entities: some to the Ombudsman, others file lawsuits in the State Administrative Court (PTUN). The Ombudsman investigates and recommends that the regional regulation be revised. The PTUN cancels the decision to reject licenses on a case-by-case basis. However, the problematic regional regulation remains in effect. Deviant practices repeat because the root cause, the regulation itself, is not effectively touched by any single institution.
This is the face of what is called systemic maladministration: not merely a procedural error by one official occurring once, but a condition where the regulation itself structurally creates recurring injustice with a broad impact. The two most relevant institutions to handle this are the Ombudsman of the Republic of Indonesia and the State Administrative Court (PTUN). Both have strengths. Both have weaknesses. And what is most interesting: the limitations of each can actually be covered by the strengths of the other. This article explores how these two institutions work, where the limits of their respective authorities lie, and how their synergy can be the answer to the most difficult maladministration issues.
II. Systemic Maladministration: What and Why It Is Dangerous
A. Distinguishing Individual and Systemic Maladministration
Based on Law Number 37 of 2008 concerning the Ombudsman of the Republic of Indonesia, maladministration is a behavior or act against the law committed by state administrators: exceeding authority, using authority for other purposes, or neglecting legal obligations in the administration of public services. This definition covers a wide spectrum, from slow service to systematic discrimination.
However, there is a very important difference between two categories of maladministration:
B. AAUPB as the Testing Standard
Law Number 30 of 2014 concerning Government Administration (UUAP) explicitly codifies the General Principles of Good Governance (AAUPB): legal certainty, benefit, impartiality, precision, non-abuse of authority, openness, public interest, and good service. This is a major leap: AAUPB is no longer just an ethical guideline, but a legal norm that can be the basis for canceling administrative actions. Both the Ombudsman and the PTUN use AAUPB as a benchmark for assessment; this is the most important normative meeting point between the two.
III. Ombudsman: Strong in Diagnosis, Weak in Execution
A. Authority and Approach
The Ombudsman of the Republic of Indonesia is an independent state institution, existing outside the three classic branches of power and having no organic relationship with the agencies it oversees. This independence is a critical prerequisite: the Ombudsman can only be objective if it is free from the political and bureaucratic pressures it oversees. The Ombudsman works through non-judicial channels: investigations of reports, substantive examinations, mediation between the reporter and the reported, special adjudication in public service disputes (based on Law Number 25 of 2009), and the issuance of formal recommendations.
The Ombudsman's greatest strength in the context of systemic maladministration is its ability to examine the systemic patterns and roots of an issue, rather than case-by-case. It can investigate a regional regulation, trace how its procedures consistently result in discrimination, and recommend a direct regulatory revision. In practice, the Ombudsman has indeed recommended the revision of certain regional regulations because their substance inherently opens opportunities for maladministration, an approach that goes beyond the formal object of its oversight.
B. Structural Weakness: Recommendations Without Teeth
The fundamental weakness of the Ombudsman is the absence of executorial power. Article 38 of the Ombudsman Law requires the reported party and their superior to implement the Ombudsman's recommendations. If not implemented, the Ombudsman can report to the House of Representatives (DPR) and the President. However, there is no forced execution mechanism; its strength depends on political and social pressure, not judicial authority.
In practice, the level of compliance varies greatly. Central agencies tend to be more compliant due to higher national reputation sensitivity. However, the most severe systemic maladministration actually occurs in the regions, where compliance with recommendations is lowest. Revising regulations demands much greater political will than improving operational procedures. And without coercive authority, the Ombudsman can only hope.
IV. PTUN: Strong in Verdicts, Limited in Reach
A. Jurisdiction and Development
The PTUN was originally designed with a narrow jurisdiction: adjudicating disputes arising from a State Administrative Decision (KTUN) that is written, concrete, individual, final, and creates legal consequences for a person or a civil legal entity—all five elements being cumulative. In administrative law, this means the PTUN is only authorized to adjudicate beschikking (individual decisions), not regeling (general regulations). Regulations such as regional regulations or ministerial regulations are traditionally outside the jurisdiction of the PTUN; that is the realm of the Supreme Court (judicial review) or the Constitutional Court (for laws).
Developments post-UUAP 2014 expanded this scope significantly: the object of lawsuits now includes unwritten decisions and factual actions (feitelijke handelingen) of government officials. This expansion opens wider access, but it does not eliminate the fundamental limitation: the PTUN is still not authorized to cancel regulations directly.
B. Incidental Review: Strengths and Limitations
One of the most important developments in PTUN jurisprudence is the increasing use of AAUPB as a basis for testing. The PTUN now not only tests whether a KTUN contradicts higher regulations, but also whether it violates the principles of proportionality, precision, or the prohibition of abuse of authority. This opens a path called incidental review: if a KTUN is issued based on a regulation that contradicts AAUPB, the judge can cancel that KTUN because its underlying regulation cannot be applied lawfully.
However, incidental review has fundamental limitations. The impact of the cancellation only applies to the case in question (inter partes), not generally (erga omnes). The problematic regulation remains in effect and can continue to produce similar new KTUNs. The PTUN cancels decisions born from problematic regulations one by one, while the regulation itself is untouched. This is the main source of recurring maladministration.
V. The Gray Zone and Unaddressed Gaps
A. When the Ombudsman and PTUN Are Both Not Enough
The most critical gray zone is when a regional regulation, for example, a licensing regulation, systematically produces KTUNs that are discriminatory against small business actors. In this situation, the Ombudsman can investigate and recommend a revision of the regulation, but its recommendation is not binding. The PTUN can cancel individual KTUNs produced, but it cannot cancel the regulation itself. As a result, maladministration repeats in an endless cycle.
The most serious gap is what can be called shadow regulations: technical guidelines, circulars, internal memos, and similar documents that are formally not laws and regulations, but in practice are binding internally and become the basis for administrative actions that harm the public. These shadow regulations are not reachable by the Supreme Court's judicial review (not formal laws and regulations), are not included in KTUNs that can be sued in the PTUN (not concrete and individual), and are on the periphery of the Ombudsman's authority, which focuses more on the actions of administrators than policy instruments. This is the most dangerous zone of legal vacuum.
B. Lessons from Foreign Legal Systems
The experience of countries with more mature ombudsman systems shows that non-judicial/judicial synergy actually strengthens the overall oversight system. In the Netherlands, the Nationale Ombudsman reports are regularly used as materials for judges' consideration in administrative disputes. In Australia, the Commonwealth Ombudsman recommendations can trigger a judicial review if not implemented within a certain period. These models prove that the two paths are not competing alternatives, but complementary instruments in one coherent oversight system.
VI. The Needed Model of Synergy
A. Why Synergy Cannot Be Delayed
Systemic maladministration is too complex to be resolved by a single institution. The Ombudsman has a flexible investigation capacity to identify systemic patterns but lacks executorial power. The PTUN has binding judicial authority but is limited by strict procedural law. Without synergy, the result is exactly like the scenario at the beginning of this article: the Ombudsman recommends a revision of the regulation, the PTUN cancels individual KTUNs, but the problematic regulation remains in place and victims continue to fall. Both, if operating in a coordinated manner, can cover each other's weaknesses and break the cycle that seems endless.
B. Three Pillars of Institutional Synergy
The most concrete and immediately applicable synergy model rests on three pillars:
IX. Closing
A. Conclusion
The Ombudsman and the PTUN form two sides of a state administrative oversight system that is not yet fully integrated. The Ombudsman is strong in diagnosis but weak in execution. The PTUN is strong in verdicts but limited in the reach of its objects. In facing systemic maladministration rooted in regulations, especially shadow regulations unreachable by existing legal mechanisms, the limitations of both become gaps utilized by deviant practices to survive.
Long-term solutions require two non-negotiable things: legislative reform that provides stronger executorial power to the Ombudsman and expands the jurisdiction of the PTUN to be able to declare which regulations apply in concrete disputes; as well as structured institutional synergy, not depending on progressive judge interpretations or creative Ombudsman investigations. As long as both operate in their respective silos, systemic maladministration will continue to find gaps to survive.
B. What Can You Do?
If you face administrative actions that feel unfair and recurring, whether in the form of rejection, sanctions, delays, or discriminatory treatment that seems not like the fault of one official but a reflection of a problematic system, there are concrete strategies you can take:
Facing a problematic system requires persistence beyond one case. Every successful lawsuit, every recommendation complied with, every regulation revised, is one step toward an administrative system that is fairer for all. Accompanying you in every step—that is what we do every day.
****
JBD Law FirmThis article is prepared for legal education purposes and does not constitute legal advice. For further consultation, contact the JBD Law Firm team.