WHEN REGULATIONS COLLIDE:
CONFLICTS OF AUTHORITY BETWEEN AGENCIES AND THEIR IMPACT ON ADMINISTRATIVE DISPUTES
Authored by:
Juventhy M. Siahaan, S.H., M.H.
Managing Partner, JBD Law Firm
I. Introduction
You have spent months processing a business permit and finally hold a Business Identification Number (NIB) from the OSS system. However, the relevant technical ministry still demands additional requirements based on its own ministerial regulation, which differs from what the OSS requires. Two regulations, two agencies, two conflicting orders, and you are trapped between them. This is the real face of conflicts of authority between agencies in the formation of regulations: not merely a technical bureaucratic issue, but a source of systematic injustice for citizens and business actors.
Indonesia is recorded to have thousands of laws and regulations across various levels—statutes, government regulations, presidential regulations, ministerial regulations, down to institutional regulations. This massive volume of regulation is not balanced by an adequate harmonization mechanism. Consequently, conflicts of authority between agencies have become a recurring and deep-rooted phenomenon: two or more agencies issue regulations governing the same object but with mutually contradictory substance, creating legal ambiguity that harms anyone under their regulation. This article explores why these conflicts occur, how they give rise to administrative disputes, and what you can do when you become a victim.
II. Legal Basis: Authority and the Hierarchy of Regulations
A. Where Institutional Authority Originates
In administrative law, the authority of government agencies is obtained through three channels. Attribution: the direct granting of new authority from a statute to an agency; this is the strongest source of authority. Delegation: the transfer of existing authority from one administrative body to another, whereby the authority changes hands. Mandate: the exercise of authority on behalf of the mandator, without a juridical transfer of authority. This distinction is crucial: a regulation issued without a valid legal basis of authority is an ultra vires act that can be annulled. The problem is that the boundaries of authority in many Indonesian sectoral statutes are often formulated elastically, using phrases such as "further regulate" or "establish policies," which opens space for more than one agency to claim authority over the same field.
B. The Hierarchy of Regulations and Its Limits
Law Number 12 of 2011 concerning the Formation of Laws and Regulations establishes a hierarchy of norms: the 1945 Constitution at the apex, followed by MPR Decrees, Statutes/Government Regulations in Lieu of Law, Government Regulations, Presidential Regulations, Provincial Regional Regulations, and Regency/City Regional Regulations. The basic principle is simple: a lower regulation must not contradict a higher regulation.
To resolve conflicts of norms, the law recognizes three primary principles: lex superior derogat legi inferiori (higher law overrides lower law), lex specialis derogat legi generali (specific law overrides general law), and lex posterior derogat legi priori (newer law overrides older law). However, these three principles are not always able to provide a satisfactory answer, especially when a conflict occurs between two regulations of the same level, which are equally specific in nature, and are issued by two different agencies with equally strong claims of authority. This is where the Indonesian legal system faces a vacuum of mechanisms that has yet to be filled.
III. Typology and Causes of Conflicts of Authority
A. Four Typologies of Conflict
Conflicts of authority in the formation of regulations manifest in at least four different faces. Positive conflict: two or more agencies simultaneously claim the authority to regulate a field, resulting in overlapping regulations. Negative conflict: no agency is willing to acknowledge its authority, resulting in a regulatory vacuum that harms the public. Vertical conflict: occurs between the central government and regional governments in the regulation of affairs that have not been fully decentralized. Horizontal conflict: occurs between ministries or equivalent agencies, each issuing regulations based on its own sectoral statutes. This fourth typology is the most frequent and has the most direct impact on business actors.
B. Four Structural Root Causes
Why do these conflicts keep recurring? There are four mutually reinforcing root causes. First, the ambiguity of norms in the distribution of authority: many sectoral statutes use elastic and multi-interpretable phrases, so that two different statutes can give birth to two agencies with overlapping claims of authority. Second, the proliferation of state institutions post-reformation, which gave rise to a wave of new commissions, bodies, and independent agencies without comprehensive restructuring of authority, resulting in a redundant institutional ecosystem prone to conflict. Third, high sectoral ego, evident in the lack of coordination between agencies and the issuance of regulations that secretly encroach upon the authority of other agencies. Fourth, weak harmonization mechanisms: although Law Number 12 of 2011 regulates harmonization through the Ministry of Law and Human Rights, this process is often treated as a mere formality because there are no strict sanctions for agencies that ignore it.
IV. From Regulatory Conflict to Administrative Disputes
A. Three Channels for the Emergence of Disputes
Conflicts of authority in the formation of regulations do not only cause confusion on paper; they concretely give rise to administrative disputes through three main channels. The first and most common channel is through the issuance of a State Administrative Decision (KTUN) based on problematic regulations. An official who rejects a permit application, revokes a permit already granted, or imposes administrative sanctions—if that decision is based on a regulation that contradicts another regulation—provides a legal basis for the aggrieved subject to file a lawsuit in the Administrative Court (PTUN).
The second channel is through official inaction. Regulatory uncertainty often causes officials to choose not to issue a KTUN that is actually needed by citizens, in order to avoid potential errors in choosing between two conflicting regulations. For parties awaiting legal certainty from such a KTUN, this inaction can be sued in the PTUN as a fictitious decision, and since the 2014 Government Administration Law, an official's silence within a certain time limit is considered an approval of the application (positive fictitious).
The third channel is through ultra vires acts. In conditions of overlapping regulations, an official acting based on one regulation may simultaneously exceed the limits of authority according to another regulation. Such an act, which exceeds the scope of power (ultra vires), can be the basis for a separate lawsuit in the PTUN.
B. The Burden Borne by Citizens and Business Actors
From the perspective of the affected legal subjects, regulatory conflicts impose at least three real burdens. Dual compliance burden: the obligation to understand and comply with two or more regulations governing the same matter with different substances, which directly increases the cost and time to start or run a business. Investment uncertainty: investors, both domestic and foreign, require legal certainty as a primary prerequisite in decision-making. Mutually contradictory regulations create legal risks that cannot be calculated, which ultimately lowers investment attractiveness systemically. Inequality of position in court: when a dispute is brought to the PTUN, citizens face officials who have broader access to resources, information, and legal representation, while judges also often face difficulties in determining which regulation should be used as the reference.
V. Limitations of the PTUN and Currently Available Mechanisms
A. Three Structural Challenges of the PTUN
The PTUN faces inherent limitations in handling disputes originating from conflicts of regulatory authority. The first challenge is jurisdictional limitation: the PTUN is only authorized to test the validity of a KTUN based on the prevailing regulations. When the root of the problem is a conflict between two regulations that are both formally valid, the PTUN can only choose which regulation will be used as the testing reference, without being able to resolve the regulatory conflict itself. The conflict remains and will continue to give birth to new disputes.
The second challenge is inconsistency of verdicts: the absence of clear guidance on how to resolve conflicts between two regulations of the same level causes PTUN judges in various regions to provide different verdicts on issues with the same substance, undermining legal certainty and public trust in the administrative justice system. The third challenge is the complexity of evidence: in disputes involving regulatory conflicts, the plaintiff must not only prove that the issued KTUN is detrimental to them but also that the KTUN is invalid according to a certain regulation, while there is another regulation that actually supports said KTUN. The evidentiary process becomes much more complicated and expensive.
B. Resolution Mechanisms Currently Available
Indonesian positive law provides several mechanisms to overcome conflicts of authority, each with its advantages and limitations. First, State Institution Authority Disputes (SKLN) in the Constitutional Court based on Article 24C paragraph (1) of the 1945 Constitution; however, this mechanism is very limited as it only covers state institutions whose authority is explicitly granted by the constitution. Conflicts between ministries cannot be resolved through SKLN because the authority of a ministry originates from a statute, not directly from the constitution. Second, judicial review in the Supreme Court for regulations below a statute, effective for eliminating problematic regulations, but the process is lengthy and not preventive. Third, regulatory harmonization through the Ministry of Law and Human Rights during the regulation formation process, which in practice is often treated as a formality without real preventive power.
IX. Closing
A. Conclusion
Conflicts of authority between agencies in the formation of regulations are deep-rooted structural issues, not merely technical legalistic problems, but a reflection of a fundamental weakness in the state's institutional design that was not followed by an adequate restructuring of authority. With diverse typologies (positive/negative, horizontal/vertical) and four mutually reinforcing root causes, these conflicts cannot be resolved through a single instrument.
The impact on administrative disputes is very real: regulatory conflicts systematically give birth to KTUNs that lack authority, inaction by hesitant officials, and ultra vires acts that harm citizens. The PTUN as a dispute resolution institution faces structural limitations that render it unable to touch the root of the problem. Long-term solutions require systemic reform: the formation of an independent regulatory harmonization body with binding authority, the mandatory application of Regulatory Impact Assessment (RIA) before the issuance of regulations, strengthening inter-agency consultation mechanisms, and expanding the jurisdiction of the PTUN to be able to declare which regulation applies in concrete disputes.
B. What Can You Do?
If you, as a citizen or business actor, are affected by regulatory conflicts between agencies, there are concrete steps that can be taken:
Overlapping regulations are a systemic problem, but the impact is always individual. It falls upon one entrepreneur whose permit is rejected, one citizen whose rights are ignored, one investment that fails to materialize. Ensuring that every affected individual knows their legal rights and has access to fight for them—that is what we do every day.
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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.