Limits on the Implementation of Contrario Actus Principle in the Procurement of Civil Servants

Procurement of Civil Servants (PNS) which is not in accordance with the legislations and the general principles of good governance have the potential to become State Administration disputes. One of the examples is a civil servant procurement dispute in Dompu District in 2014 where the Judges decided to reject the plaintiff’s claim by considering the Contrario Actus Principle. This research was a normative research by using a statute and case approach. The legal materials used in this research were primary and secondary legal materials. Moreover, the data analysis method used was descriptive qualitative. The results showed that in the Civil Servant Procurement Dispute in Dompu District in 2014, the Judges of Mataram Administrative Court judged that the Dompu District Head, in terms of authority and procedure, did not violate the laws and the general principles of good governance. Moreover, in terms of substance, the Judges considered that the Dompu District Head’s decision was in accordance with the Contrario Actus Principle. By looking at the decidende ratio and Law Number 30 of 2014 concerning Government Administration, the limits on the implementation of the Contrario Actus principle in the procurement of Civil Servants are; 1) The withdrawn KTUN is a bound KTUN, 2) The withdrawn KTUN has a defective authority, 3) The withdrawn KTUN has a defective procedure, and/or 4) The withdrawn KTUN has a defective substance which is caused by fraud, coercion, bribe, or error.


INTRODUCTION
Professional State Civil Apparatus is needed to achieve national goals as stated in paragraph 4 of the 1945 Constitution of the Republic of Indonesia (UUD 1945).It is in accordance with Law Number 5 of 2014 concerning State Civil Apparatus.However, in reality, as many as 1 million Civil Servants (PNS) are suspected of being unprofessional. 1urwanto and Susanto state that one of the factors causing the low professionalism of civil servants in Indonesia was the procurement system of civil servants (PNS) which is identical with Corruption, Collusion, and Nepotism (KKN) practices 2 .Meanwhile, the State Administration Agency, in Hadiati, et al.,  states that the number of frauds in the procurement of civil servants lead to the employees' quality which does not correspond to the organization's needs 3 .
By looking at the reality, the procurement of civil servants should be free from Corruption, Collusion and Nepotism, and should be carried out in accordance with the legislations and the general principles of good governance.In addition, in accordance with Article 53 of Law Number 9 of 2004 concerning Amendments to Law Number 5 of 1986 concerning State Administrative Courts, Decisions of State Administration (KTUN) which are contrary to the legislations and the General Principles of Good Governance (AUPB) can be the reasons for legal suit submission.Thus, KTUN related to the procurement of civil servants, such as the decision of applicants who did not pass the administrative selection, the decision of applicants who passed the selection of PNS procurement, the appointment of CPNS and so on, which are not based on legislations and AUPB has the potential to become a State Administration (TUN) dispute.TUN disputes resolved through the TUN Court are a consequence of changes in the relations between the state and citizens in which citizens who were passive become active recipients in the sense that they can submit a legal suit if they receive inadequate service 4 .Besides, giving the opportunity to citizens to sue KTUN is one of the consequences as a State of Law 5 .
There are a number of State Administration disputes in the procurement of civil servants that have been decided by the Court and the Supreme Court and have

METHOD
This research is a normative research by using a statute and case approach.The statute approach is carried out by examining the legislations that relate to the legal issues under study, while the case approach is carried out by examining the decidende ratio or legal provisions that the court sees as a provision that must be applied to the cases handled.In this research, the legal materials used are primary legal materials in the form of legislation and secondary legal materials in the form of scientific works as well as from internet that support and relate to the research.At first, AUPB was interpreted as an open principle, but through the Government Administration Law, AUPB that had been practiced in the government administration was realized into binding legal norms.According to the Government Administration Law, AUPB is a principle used as a reference for the use of Government Officials Authority in issuing Decisions and/or Actions in the government administration.Article 10 paragraph (1) of the Government Administration Law contains 8 (eight) principles of AUPB, namely the principle of legal certainty, the principle of benefit, the principle of impartiality, the principle of accuracy, the principle of not misusing authority, the principle of openness, the principle of public interest, and the principle of good service.Whereas, Article 10 paragraph

RESULTS AND DISCUSSION
(2) of the Government Administration Law shows that other principles beyond the 8 (eight) principles of AUPB can be recognized as AUPB.According to the explanation of Article 10 paragraph (2) of the Government Administration Law, other general principles beyond the 8 (eight) principles of AUPB are general principles of good governance derived from the district court decisions, or the decisions of the highest court that are not canceled or decisions of the Supreme Court.
The Supreme Court with reference to the doctrine that has developed and has been applied in decisions (jurisprudence) states that there are 10 (ten) AUPB, namely Principles of Equality, Principles of Trust, Principle of Legal Certainty, Principles of Accuracy, Principles of Giving Reason/Motivation, Prohibition of Misusing Authority, and Principles that errors committed by State Administration Officials in issuing KTUN result in losses for justice seekers/society.Meanwhile, M. Hadjon argues that the principle of errors committed by State Administration Officials in issuing KTUN result in losses for justice seekers/society may not be charged or become a risk of the related official 10 .Although the Supreme Court has stated that there are 10 (ten) AUPB, other AUPB sourced from decisions that have permanent legal force (inkracht) also becomes Umum-Pemerintahan-yang-Baik-Hukum-Administrasi-Negara.pdf.Accested tanggal 12 Maret 2018 10 Philipus M. Hadjon, "Peradilan Tata Usaha Negara dalam Konteks Undang-Undang No. 30 Th. 2014 tentang Administrasi Pemerintahan", Jurnal Hukum dan Peradilan.,Vol.4 No. 1. Maret 2015, pp.57.  a reference in issuing KTUN, as explained in Article 10 paragraph (2) of the Government Administration Law.AUPB will always develop in accordance with the society's legal awareness and develop through a court decision so that there is no definite AUPB number 11 .
The contrarius actus principle has the meaning that the decision issued by the state administration official can be automatically canceled by the state administration official itself.The contrarius actus principle is explicitly stated in Article 64 of the Government Administration Law.Article 64 paragraph (1) of the Government Administration Law states that revocation of a decision can be made if there is a defective authority, procedure and/or substance in it.In the explanation section of Article 64 paragraph (1) of the Government Administration Law, defects in authority and procedures are not explicitly explained, while a defective substance is explained as: 1.The Decree are not implemented by the recipient until the time limit specified; 2. The facts and legal requirements that become the basis of the Decree have changed; 3. The Decree can endanger and harm public interests; or 4. The Decree is not used in accordance with the objectives stated in the contents of the Decree.Meanwhile, Hadjon states that KTUN that can be withdrawn are as follows: 1.Those who have an interest do not comply with the restrictions, conditions or provisions of legislation relating to permits, subsidies, or payments.2. Those who have an interest have provided incorrect or incomplete data when applying for a permit, subsidy or payment, so that if the data is given correctly or completely the decision will be different 12  always be abolished ab ovo (there is nothing from the beginning).2. A decision in which its contents have not been informed to the person concerned, so a decision that has not become an act in the legal context can be abolished ab ovo. 3. A decision, that is useful for the person concerned and is given to them with certain conditions, can be withdrawn at the time when the subject is not fulfilling the conditions specified.4. A decision that is useful for the person concerned may not be withdrawn after a certain period, if the situation under the beneficial decision can change into an improper situation after the withdrawal. 5. Due to an incorrect decision, an improper situation is happened.This situation should not be erased, if withdrawing the decision leads a greater loss to the person concerned than the loss suffered by the state due to such improper situations.6. Retract or change a decision should be done based on formality as determined by the provision makers (contrarius actus principle) 13 .Nalle argues that the contrarius actus principle is attached to government officials even though the authority is not mentioned in the relevant legislation14 .Therefore, if there is an error in a KTUN, the government officials can withdraw KTUN based on the contrarius actus principle.
The contrarius actus principle is one of the AUPB used by the Judge Council to decide State Administration disputes concerning the procurement of civil servants in Dompu District in 2014.Rahardjo states that to assess the Judge's decision is to look at the decidende ratio or legal provisions that are seen as a provision that must be applied to the case handled 15 .Thus, to see the implementation of contrarius actus principle, it is necessary to look at the legal provisions used to decide on civil servant procurement disputes in Dompu District in 2014.
BKD/2015 concerning Amendments to the Appendix to the Decree of the Dompu District Head Number: 800/334/BKD/2014 was an effort to make corrections on errors found in the administrative validation process and corrections were supposed to be carried out as the responsibility of government administrators.The Mataram Administrative Court Assembly argued that it was in accordance with the contrario actus principle stating that the State Administration who issued a Decree is the one who had the obligation to make corrections to his decision if an error was found 6 .Yet, Ridwan HR argues that decision withdrawal can cause juridical problems because the State Administration law recognizes the principle of rechtmatig that is closely related to the principle of legal certainty, however, this principle does not mean eliminating the possibility of change or revocation of the State Administration decision altogether 7 .