SUING VIA SOP:
WHEN GOVERNMENT INTERNAL PROCEDURES PREJUDICE THE RIGHTS OF CITIZENS
Authored by:
Juventhy M. Siahaan, S.H., M.H.
Managing Partner, JBD Law Firm
I. Introduction
Your permit application is rejected. Not because you failed to meet legal requirements, but because it was "not in accordance with internal procedures." Social assistance that you should have received is not disbursed because your name did not pass a "verification mechanism" that was never published. Your legal status is determined based on procedures contained in a document whose existence you were not even aware of. Behind all these occurrences lies a single common instrument: theStandard Operating Procedure, or commonly referred to as SOP, an internal document governing the workings of the government bureaucracy.
A frequently ignored legal question is: can an SOP that prejudices a citizen be challenged in court? In theory, an SOP is an internal document that only binds the apparatus, not the citizen. However, in practice, the boundary between internal policy and legal acts with external impacts often becomes blurred, and it is there that the gap of injustice opens. This article reviews the standing of SOPs within the Indonesian administrative law system, when and how an SOP can become the basis of a dispute in the State Administrative Court (PTUN), and concrete steps you can take if a government SOP prejudices your rights.
II. SOPs in Governance
A. What is an SOP and What is its Legal Basis?
A Standard Operating Procedure is a series of standardized written instructions regarding the process of organizing government organizational activities—how, when, where, and by whom a task is performed. Its formal legal bases include, among others, the Regulation of the Minister of Administrative and Bureaucratic Reform Number 35 of 2012 concerning Guidelines for Drafting Government Administration Standard Operating Procedures. Every government agency, from ministries to regional governments, possesses its own SOPs that bind its apparatus in performing their duties.
B. Three Typologies of SOPs: Which are Legally Relevant?
Not all SOPs carry the same legal implications. There are three typologies that must be understood to determine whether an SOP can be legally challenged. First, purely technical-procedural SOPs that only govern the internal work mechanisms of the apparatus without touching upon citizens' rights, such as SOPs for employee leave applications or monthly report generation. Second, substantive-external SOPs that govern decision-making processes with direct implications for the rights and interests of citizens, such as SOPs for issuing building permits, business feasibility assessments, social assistance disbursement, or determining an individual's legal status. Third, hybrid SOPs that are formally internal in nature but practically establish standards determining the quality of public services and indirectly affecting citizens' rights.
The second typology, substantive-external SOPs, is the most legally relevant. When this type of SOP is flawed, non-transparent, or contradicts higher-ranking regulations, the impact is not merely an internal bureaucratic issue: it directly touches upon the constitutionally protected rights of citizens. And it is here that administrative law must intervene.
III. Legal Standing of SOPs: Not a KTUN, but Not Without Limits
A. Why an SOP is Not Directly a State Administrative Decision (KTUN)
The object of a dispute that can be sued in the PTUN is a State Administrative Decision (KTUN). Article 1 point 9 of Law Number 51 of 2009 defines a KTUN through five cumulative elements that must all be met simultaneously: (1) a written determination; (2) issued by a state administrative body or official; (3) containing a state administrative legal act based on prevailing laws and regulations; (4) concrete, individual, and final in nature; and (5) creating legal consequences for a person or a civil legal entity. The absence of even one of these elements results in a government action being ineligible as an object of a lawsuit in the PTUN.
When these five elements of a KTUN are applied to an SOP, the result is quite clear: an SOP generally does not qualify as a KTUN. An SOP is general and abstract, applying to all apparatus or groups of applicants without exception, thus failing to meet the concrete and individual elements. In administrative law terminology, the character of an SOP is closer to a regeling (a general regulation applicable to anyone) rather than a beschikking (a decision addressed to a specific person or legal entity). Consequently, an SOP cannot be directly sued in the PTUN as the primary object of dispute.
B. Expansion through the Government Administration Law and PERMA
The law does not stop at these classical boundaries. Article 87 of Law Number 30 of 2014 concerning Government Administration (UUAP) expanded the definition of a KTUN to include not only classical written determinations but also factual actions (feitelijke handelingen) of government bodies or officials, decisions that are final in a broader sense, and decisions with the potential to create legal consequences. This expansion significantly widens the entry point for disputes into the PTUN. In the context of SOPs, the act of applying a flawed SOP—for instance, an SOP that is discriminatory, lacks a clear legal basis, or contradicts higher regulations—potentially falls into the category of an "act" that can be independently sued. It should be noted that the application of the Article 87 UUAP expansion is still being reinforced through jurisprudence, thus the arguments must be carefully constructed and supported by solid legal grounds.
The second important dimension is discretion. The UUAP regulates discretion structurally through Article 22 to Article 32. An SOP issued on the basis of discretion but applied arbitrarily, or for a purpose different from the intent of granting authority, can be challenged as an abuse of discretion. This argument can be used both in administrative remedies and as an additional plea in a PTUN lawsuit, as elaborated in Section IV.
From the perspective of procedural law, Supreme Court Regulation Number 6 of 2018 (PERMA 6/2018) concerning Guidelines for Resolving Government Administration Disputes After Pursuing Administrative Remedies serves as a crucial technical instrument. This PERMA stipulates that the PTUN is only authorized to examine disputes after administrative remedies have been pursued first, with a time limit for filing a lawsuit in the PTUN being 90 days from the receipt or announcement of the decision on the administrative remedy—a deadline that must be strictly observed as exceeding it may result in the lawsuit being declared inadmissible.
IV. How an SOP Can Be Challenged in the PTUN
A. Primary Channel: Indirect Review
The most realistic legal mechanism practiced in Indonesia is the indirect review of SOPs. In Continental European legal doctrine, this mechanism is known as exceptio illegalitatis or incidental review. Its operation is simple yet effective: a citizen sues the KTUN that prejudices them, and within that lawsuit, submits a plea that the KTUN is legally flawed because it was based on or issued in accordance with a problematic SOP—either because it contradicts higher-ranking laws and regulations or because it violates the General Principles of Good Administration (AUPB).
In this scenario, the PTUN judge does not directly annul the SOP. However, the judge may declare that the application of the problematic SOP caused the respective KTUN to be procedurally or substantively flawed, and therefore it must be annulled. The same channel is available to challenge an SOP issued on the basis of discretion but applied arbitrarily: the plaintiff can raise the plea of abuse of discretion as an additional ground reinforcing the argument for the KTUN's annulment. This is the legal weapon available today, without needing to wait for any legislative changes.
B. Developments in PTUN Jurisprudence
Indonesian judicial practice shows an encouraging trend. The Supreme Court, in several of its verdicts, has outlined that compliance with procedures established in internal regulations, including SOPs, is part of the principle of legal certainty and the principle of orderly state administration, both of which are components of AUPB. In other words, a violation of an SOP in the process of issuing a KTUN is not merely an administrative error; it is a violation of law that can lead to the annulment of said KTUN.
As an illustration of how this mechanism works in practice: imagine a citizen whose operational permit application is rejected on the grounds of failing to meet internal verification procedures. If it is proven that the verification procedure was never announced, lacks a clear legal basis, or was inconsistently applied to different applicants, then the KTUN of rejection is vulnerable to being annulled by the PTUN—not because the substantive requirements were unmet, but because the process itself was flawed. Following the enactment of the UUAP, several PTUNs have begun to accept lawsuits with similar arguments, particularly in personnel cases involving dismissal or demotion SOPs, as well as licensing cases where internal evaluation procedures were never made public, although the consistency of this approach still needs to be systematically reinforced through litigation advocacy.
C. Lessons from Foreign Legal Systems
The experience of other countries reinforces the argument that SOPs and internal government policies must not become "law-free zones." In the Netherlands, the Raad van State has recognized that beleidsregel (internal policy rules, including SOPs) can create legitimate expectations (gerechtvaardigde verwachtingen) that the government is obliged to fulfill. A violation of these expectations can serve as a basis for an administrative lawsuit—a principle that directly corresponds with the vertrouwensbeginsel (principle of protection of legitimate expectations) in Indonesian AUPB. In Australia, the Administrative Appeals Tribunal (AAT) developed the doctrine that a deviation from internal procedures without justifiable reasons can result in a decision being declared invalid. Different legal systems, the same conclusion: internal procedures are not an impenetrable legal shield.
V. Legal Implications and Challenges
A. Structural Gaps in the Protection System
Normative ambiguity regarding the standing of SOPs in Indonesia's administrative law system creates a gap that can be exploited by the bureaucracy. The first issue is normative: there is no statutory provision explicitly regulating the mechanism for indirect review of SOPs in administrative disputes, leaving its application entirely dependent on the courage and knowledge of the presiding judge. The second issue is informational: as long as SOPs are not transparent, not announced, not easily accessible, and not socialized, citizens cannot know the standards used to assess their rights, let alone challenge them. This is a fundamental access to justice issue, touching directly upon Article 28D paragraph (1) of the 1945 Constitution, which guarantees the right of every person to fair legal certainty.
B. Three Most Common Practical Obstacles
The first obstacle is the Non-transparency of SOPs. Prejudiced citizens often do not know which SOP was applied, what the content of that SOP was, and whether the SOP had a valid legal basis. Without access to the SOP document, a plea of procedural flaw is difficult to construct. This is where Law Number 14 of 2008 concerning Public Information Disclosure becomes a strategic instrument: an SOP that impacts citizens' rights is public information that must be accessible, and a rejection of such a request can be disputed at the Information Commission.
The second obstacle is the Inconsistency of application by judges. The indirect review approach for SOPs is not yet uniform across all Indonesian PTUNs. Some judicial panels accept pleas of procedural flaws based on SOPs; others remain hesitant because no doctrine has been explicitly codified in law. This inconsistency creates legal uncertainty that contradicts AUPB—an irony that needs to be addressed through consistent Supreme Court verdicts.
The third obstacle is the Difficulty of proving causality. The plaintiff must be able to concretely show: which SOP was applied, how that SOP contradicts higher law or AUPB, and how the application of that SOP directly resulted in the issuance of the prejudicial KTUN. This chain of causality requires a meticulous reconstruction of the administrative process, which is why the assistance of an advocate experienced in state administrative law is highly essential.
IX. Closing
A. Conclusion
Internal SOPs of state administrative bodies or officials generally do not meet the elements of a KTUN as formulated in the Administrative Court Law, specifically due to their general and abstract nature, thereby failing to meet the concrete and individual requirements. The character of an SOP is closer to a regeling than a beschikking, and therefore it cannot be directly made an object of a lawsuit in the PTUN. However, this is not the end of the analysis.
The expansion of the object of dispute through Article 87 of the UUAP opens a real opportunity for the indirect review of SOPs via the mechanism of exceptio illegalitatis: a flawed SOP that serves as the basis for issuing a KTUN can be used as a plea for the annulment of that KTUN, either through arguments of procedural flaws or abuse of authority. Supreme Court jurisprudence recognizing compliance with SOPs as part of AUPB reinforces the legal foundation of this path. Procedurally, PERMA Number 6 of 2018 serves as a mandatory technical guide: administrative remedies must be pursued first, and the subsequent PTUN lawsuit must be filed within 90 days from the receipt or announcement of the decision on the administrative remedy.
B. What Can You Do?
If you or your business is prejudiced by the application of a government SOP, there are concrete steps you can take:
An SOP is not an impenetrable legal shield for the government; it is a standard that must be accountable to the law and to every citizen it serves.
****
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.