https://dinastires.
org/JLPH Vol.
No.
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DOI: https://doi.
org/10.
38035/jlph.
https://creativecommons.
org/licenses/by/4.
Administrative Accountability in Positive Fictitious State Administrative Decisions and the Protection of ApplicantsAo Rights in Environmental Licensing Salma Laitupa1.
Eka Dewi Kartika2*.
MarAoatun Fitriah3.
Nurul Shalihat Ansar4 West Sulawesi University.
Majene.
Indonesia, salmalaitupa@unsulbar.
West Sulawesi University.
Majene.
Indonesia, ekadewikartika@unsulbar.
West Sulawesi University.
Majene.
Indonesia, maratunfitriah@unsulbar.
West Sulawesi University.
Majene.
Indonesia, nurul.
shalihat@unsulbar.
Corresponding Author: ekadewikartika@unsulbar.
Abstract: IndonesiaAos administrative law system continues to pursue the establishment of an effective, transparent, and accountable governance framework.
One of the key issues that has emerged is the application of the Positive Fictitious Administrative Decision (KTUN Fiktif Positi.
as regulated in Article 53 paragraph .
of Law Number 30 of 2014 concerning Government Administration.
In the context of environmental licensing, this concept presents new challenges, particularly regarding the accountability of administrative officials for decisions that are deemed legally valid due to inaction or negligence.
This research aims to analyze the forms of accountability of administrative officials within the framework of the Positive Fictitious Administrative Decision and to examine the available legal mechanisms to protect applicantsAo rights and ensure the effective execution of such decisions.
This study employs a normative legal research method with statutory and conceptual approaches.
The findings indicate that administrative officials remain liable both administratively and civilly for the issuance of fictitious positive decisions, even when those decisions are legally Moreover, oversight by the Ombudsman and administrative litigation through the Administrative Court serve as essential instruments to uphold accountability and legal protection for the public.
Therefore, judicial reasoning reform and the consistent application of the precautionary principle are necessary to ensure that the acceleration of public services does not compromise environmental protection.
Keyword: Positive Fictitious Administrative Decision.
Administrative Accountability.
Environmental Licensing.
Legal Protection.
Governmental Accountability.
INTRODUCTION
IndonesiaAos administrative law system continues to strive toward establishing effective, transparent, and accountable governance.
One of the most significant challenges faced in this regard concerns the decision-making process of administrative officials, particularly in the context of permit applications.
In many cases, public applications are not 515 | P a g e https://dinastires.
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responded to decisively neither through approval nor rejection.
Such passive or silent conduct by government officials can disadvantage citizens and create legal uncertainty.
Law Number 30 of 2014 concerning Government Administration introduces the concept of the Positive Fictitious Administrative Decision.
This concept is explicitly regulated in Article 53 paragraph .
, which stipulates that AuIn the event that a government body and/or official fails to issue a decision and/or take action within the time specified by the laws and regulations, the application shall be deemed legally granted.
Ay This principle provides legal certainty for applicants and compels administrative officials to act proactively (Yuniza & Inggarwati.
The concept of the Positive Fictitious Administrative Decision holds particular relevance in the realm of environmental licensing.
The process of obtaining environmental permits often involves multiple complex stages and can take a considerable amount of time.
For example, an Environmental Permit (Izin Lingkunga.
is a prerequisite for activities or businesses that may have significant environmental impacts, as stipulated in Law Number 32 of 2009 concerning Environmental Protection and Management.
Delays or failures by officials to respond to such applications can hinder investment, disadvantage business actors, and, more importantly, create legal vulnerability.
The emergence of KTUN Fiktif Positif in environmental licensing, however, introduces new legal challenges.
If an application for a permit is deemed legally granted by virtue of this provision, questions arise regarding accountability specifically, who bears responsibility if the granted permit subsequently causes negative environmental impacts.
Can the negligent official be held accountable, either administratively or civilly? Furthermore, what legal mechanisms are available to ensure that the applicantAos rights are genuinely protected and that the KTUN Fiktif Positif can be effectively executed without undermining environmental safeguards? (Simanjuntak, 2.
This study seeks to examine in depth the accountability of administrative officials in the implementation of the Positive Fictitious Administrative Decision (KTUN Fiktif Positi.
, with a particular focus on environmental licensing.
The purpose of this research is to analyze how IndonesiaAos administrative legal system provides legal protection for applicants while upholding the principles of good governance and environmental sustainability.
Law Number 30 of 2014 concerning Government Administration introduces the concept of the Positive Fictitious Administrative Decision (KTUN Fiktif Positi.
This concept is explicitly regulated in Article 53 paragraph .
, which states that AuIn the event that a government body and/or official fails to issue a decision and/or take action within the period stipulated by law, the application shall be deemed legally granted.
Ay This provision ensures legal certainty for applicants and compels administrative officials to act proactively.
The concept of KTUN Fiktif Positif holds significant relevance in the field of environmental licensing.
The process of obtaining environmental permits often involves multiple complex stages and can be timeconsuming.
For instance, an Environmental Permit (Izin Lingkunga.
is a prerequisite for any activity or business that may have a significant environmental impact, as stipulated in Law Number 32 of 2009 concerning Environmental Protection and Management.
Delays or inaction by officials in issuing such permits can hinder investment, disadvantage business actors, and, more importantly, create legal uncertainty.
The emergence of KTUN Fiktif Positif in environmental licensing introduces new legal questions.
When a permit application is deemed legally granted due to administrative silence, who bears responsibility if the granted permit subsequently results in adverse environmental impacts? Can negligent officials be held accountable, either administratively or civilly? Furthermore, what legal mechanisms exist to ensure that the applicantAos rights are genuinely protected and that the KTUN Fiktif Positif can be effectively executed without undermining environmental protection? 516 | P a g e https://dinastires.
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This study aims to comprehensively explore the accountability of administrative officials under the KTUN Fiktif Positif framework, particularly within the context of environmental licensing.
It also seeks to analyze how IndonesiaAos administrative legal system can balance applicant protection with the preservation of good governance principles and environmental safeguards.
Based on this background, the research focuses on two main problems: First, it examines the forms of accountability of administrative officials in the context of KTUN Fiktif Positif arising from environmental permit applications.
Second, it explores the legal mechanisms that can provide protection and guarantees for environmental permit applicants to ensure that KTUN Fiktif Positif decisions can be implemented METHOD This study employs a normative legal research method that focuses on the examination of statutory regulations and prevailing legal doctrines to address the research problems that have been formulated.
The approaches used include the statutory approach and the conceptual approach, which are applied to assess the conformity of existing norms with the underlying legal principles, concepts, and doctrines.
The primary legal materials used in this research consist of several relevant laws and regulations, including: Law Number 30 of 2014 on Government Administration.
Law Number 11 of 2020 in conjunction with Law Number 6 of 2023 on Job Creation.
Law Number 32 of 2009 on Environmental Protection and Management.
and other related regulations.
The secondary legal materials comprise relevant scholarly journal articles and other academic references.
Data collection was carried out through library research, involving the identification, reading, and analysis of various legal materials.
All data were analyzed qualitatively using a deductive method.
The analysis was directed toward two main objectives: First, to identify and formulate the forms of accountability of administrative officials for the issuance of Positive Fictitious Administrative Decisions (KTUN Fiktif Positi.
in environmental licensing.
and second, to map and evaluate the existing legal mechanisms designed to provide protection for affected parties and to ensure the effective execution of KTUN Fiktif Positif decisions.
RESULTS AND DISCUSSION
Accountability of Administrative Officials in the Context of the Positive Fictitious Administrative Decision Arising from Environmental Licensing Applications In IndonesiaAos administrative law, the concept of the Positive Fictitious Administrative Decision (KTUN Fiktif Positi.
, as regulated in Article 53 paragraph .
of Law Number 30 of 2014 concerning Government Administration (UUAP), emerged as a response to the longstanding bureaucratic problem of sluggishness and passivity among government officials in responding to public applications.
Bureaucratic inertia not only generates public frustration but also creates legal uncertainty.
The UUAP transformed the previous paradigm, which interpreted official silence as a rejection .
iktif negati.
, into one that treats it as legal approval .
iktif positi.
when the statutory time limit for issuing a decision expires without This shift was designed to promote bureaucratic responsiveness and provide legal certainty for permit applicants (Simanjuntak,2.
When the fiktif positif principle is applied, there is a significant risk that environmental permits may be automatically granted without adequate evaluation.
For instance, if an environmental agency official failsAiwhether intentionally or due to delayAito issue a decision within the prescribed time limit, the application would be deemed legally approved under the fiktif positif provision.
Consequently, projects with potentially high environmental risks could receive approval by default, even if their environmental impact documents (AMDAL) are flawed.
From a bureaucratic perspective, this achieves the goal of service 517 | P a g e https://dinastires.
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certainty and prevents applicants from being disadvantaged by administrative delays.
However, from an environmental standpoint, it poses a serious danger because high-risk projects could obtain authorization automatically without thorough environmental The enactment of the Job Creation Law (UUCK) further complicates this situation through two major changes.
First, it replaces the term environmental license with environmental approval and second, it accelerates the mechanism for fiktif positif The first change signifies a paradigm shift in which environmental approval is no longer a standalone permit but becomes an integral component of the integrated riskbased licensing system.
This transformation is affirmed in Articles 21 and 22 of Law Number 11 of 2020 on Job Creation, which was subsequently ratified by Government Regulation in Lieu of Law (Perp.
Number 2 of 2022 and Law Number 6 of 2023.
These provisions repeal the previous requirement in Law Number 32 of 2009 (PPLH) that mandated the issuance of an environmental license as a prerequisite for obtaining a business license (Amri F, 2.
As a consequence, the environmental permit no longer functions as an independent instrument but has been merged into the environmental approval scheme, which now serves merely as one of the administrative components in the issuance of a business license.
This transformation diminishes the role of environmental permits as a substantive gatekeeper for business activities, since the environmental feasibility assessment process is no longer conducted ex ante .
equirements fulfilled prior to approva.
but has been shifted to an ex post verification system .
ompliance review conducted after the business license is grante.
(Yudiantoro et al.
, 2.
Furthermore, this new paradigm positions environmental approval not as an autonomous administrative decision .
but as an integral part of the business licensing process.
Consequently, the status of environmental approval as an object of administrative dispute (TUN disput.
becomes blurred.
This ambiguity is reinforced by the repeal of Article 38 of the Environmental Protection and Management Law (PPLH La.
through the enactment of the Job Creation Law, despite the fact that the former provision had granted citizens and environmental NGOs the right to challenge environmental permits before the Administrative Court (PTUN).
Undeniably, this policy shift has streamlined bureaucracy and reduced procedural duplication, thereby expediting the investment process.
However, from the perspective of environmental administrative law, such changes effectively weaken the layers of environmental control and oversight mechanisms.
The second major change concerns the fiktif positif principle itself.
The Job Creation Law accelerates this mechanism by establishing a very short deadline only five working days for administrative officials to process applications once the requirements are declared If the official fails to issue a decision within that five-day period, the application is automatically deemed approved without requiring a confirmation petition to the Administrative Court (PTUN) (Tekayadi et al.
, 2.
The implications of this regulation place a heavy burden of responsibility on administrative officials.
The shorter time limit increases the risk that officials may be unable to conduct a thorough evaluation or to uphold the principle of prudence, particularly in complex cases involving high environmental risks.
This condition potentially generates accountability problems if a permit that is AuissuedAy fictitiously results in negative environmental consequences in the future.
Although the fiktif positif mechanism under the Job Creation Law (UUCK) has narrowed the scope of judicial review, administrative officials may still be held accountable both administratively and civilly.
From the administrative perspective, an administrative official can be held responsible if their negligence results in the automatic issuance of a decision .
iktif positi.
The primary legal basis for such accountability lies in the prohibition against abuse of authority, as stipulated in Article 17 of the Government Administration Law (UUAP), which states:
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Government bodies and/or officials are prohibited from abusing their authority.
The prohibition on abuse of authority as referred to in paragraph .
prohibition against exceeding authority.
prohibition against mixing authorities.
and/or prohibition against acting arbitrarily.
In essence, this article regulates that government bodies or officials are prohibited from abusing their authority, including by acting arbitrarily.
The neglect of substantive obligations resulting in the issuance of an automatic decision may be classified as an abuse of authority through negligence, thereby forming a legal basis for corrective administrative action.
Explain that post job creation law reforms which shortened the fiktif positif deadline and altered judicial access have weakened judicial avenues, thereby making internal administrative mechanisms more central to enforcing official accountability Yuniza and Inggarwati .
further argues that the assessment of administrative negligence must always refer to the general principles of good governance, particularly the precautionary principle and the principle of accountability, such that official inaction which disregards substantive risk assessment may be categorized as maladministration (Latifah, 2.
Forms of administrative accountability that can be applied include internal government supervision through the Government Internal Supervisory Apparatus (APIP), the imposition of tiered administrative sanctions .
anging from warnings and demotions to dismissa.
, and complaints to the Ombudsman, which is authorized to assess acts of maladministration.
The Indonesian Ombudsman holds the authority to evaluate cases of maladministration as stipulated in Article 1 point 3 of Law Number 37 of 2008 concerning the Ombudsman of the Republic of Indonesia, which defines maladministration as Aubehavior or acts that are unlawful, constitute an abuse of authority, negligence, or omission of legal obligations in the delivery of public services.
Ay Article 8 paragraph .
further grants the Ombudsman the authority to receive reports, conduct substantive investigations, and issue recommendations to relevant agencies.
Such recommendations may include procedural improvements in public service delivery, compensation for aggrieved citizens, or disciplinary measures against officials through their superiors.
Although the Ombudsman cannot directly impose executive sanctions.
Article 38 of the Ombudsman Law mandates that institutions must follow up on Ombudsman recommendations within 60 days.
Failure to comply allows the Ombudsman to publicly announce the agencyAos non-compliance as a form of moral sanction .
aming and From a legal-principle perspective, the authority of the Ombudsman is grounded in the General Principles of Good Governance (AUPB), particularly the principles of accountability, proportionality, and justice, as formulated in Article 10 paragraph .
of the Government Administration Law (UUAP).
This provision mandates that every governmental decision or action must adhere to the AUPB as the standard of legality and administrative Accordingly, the Ombudsman serves as a non-judicial corrective mechanism that safeguards the publicAos right to fair and maladministration-free public services, while also functioning as an external supervisory institution over service providers.
In practice, research shows that the Ombudsman acts as a watchdog of accountability investigating alleged maladministration, issuing recommendations for corrective measures, and promoting institutional compliance through normative and governance-based pressure (Setiawan, 2.
Academic findings further confirm that the OmbudsmanAos recommendations possess tangible moral and political influence in improving public service practices.
Moreover, amid the limited judicial access to certain administrative objects, the OmbudsmanAos mechanism serves as a significant corrective instrument to bridge accountability gaps (Nurdin, 2.
In the civil law domain, the doctrine of unlawful acts by the government .
nrechtmatige overheidsdaad.
OOD) provides a legal framework for holding the state or 519 | P a g e https://dinastires.
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officials liable when their actions or omissions cause harm.
The legal basis for this doctrine is found in Articles 1365 and 1366 of the Indonesian Civil Code (KUHPerdat.
Article 1365 stipulates that: AuEvery unlawful act that causes damage to another person obliges the person who, due to his fault, caused the damage to compensate for it.
Ay Meanwhile.
Article 1366 provides that: AuEvery person is responsible not only for the damage caused by his acts but also for the damage caused by his negligence or imprudence.
Ay Based on these provisions.
Article 1365 emphasizes active wrongdoing .
, while Article 1366 focuses on omissions negligence or failure to act when there is a duty to do so (Wardhani, 2.
Within the framework of unlawful acts, the element of AuactionA.
thus includes omission, while the AuunlawfulAy nature encompasses not only violations of written law but also breaches of the general principles of good governance, such as accountability and due care (Barokah & Erliyana, 2.
This legal construction gives rise to two forms of compensation.
First, financial compensation .
aterial damage.
covering loss of income, medical expenses, property damage, prevention or mitigation costs, and initial recovery expenses.
Second, non-financial compensation .
mmaterial damage.
for suffering, loss of security or comfort, and sociocultural harm to affected communities.
In environmental cases, this configuration is reinforced by Article 87 paragraph .
of the Environmental Protection and Management Law (UUPPLH), which requires perpetrators of environmental torts to Aupay compensation and/or undertake specific measures.
Ay The phrase Auspecific measuresAy explicitly allows for remedial actions aimed at restoration.
Furthermore.
Article 54 specifies the forms of environmental restoration, including cessation of pollution sources, removal of pollutants, remediation, rehabilitation, restoration, and other technical measures consistent with advances in science and technology.
Therefore, in environmental disputes, plaintiffs are entitled to claim both material and immaterial damages, while also seeking judicial orders compelling the defendant to restore environmental quality.
This dual remedy compensation combined with restoration has been recognized in judicial practice and is considered an effective means of achieving substantive environmental recovery (Aminah, 2.
In addition, within the civil law framework, the doctrine of vicarious liability allows liability to be imputed to a government agency for the acts of its officials pursuant to Article 1367 of the Indonesian Civil Code (KUHPerdat.
This applies under the condition that a genuine employment relationship exists, the wrongful act was committed in the course of official duties, and the act bears a functional connection to the delegated tasks.
This doctrinal conclusion establishes that such liability is derivative and fault-based, rather than strict, and serves to distribute risk to the party exercising control over the work (Dita, 2.
Placed in the context of environmental licensing, if a technical official negligently assesses the feasibility of an Environmental Impact Assessment (AMDAL) or allows an automatic approval to proceed despite clear indicators of environmental risk, the agency may be held vicariously liable for the resulting harm provided that the elements of employment relationship, scope of duties, and negligence are proven.
This liability exists alongside the potential personal liability of the individual official involved (Dita, 2.
From a governance design perspective, the two axes of accountability administrative and civil function complementarily.
Ombudsman oversight provides a non-judicial corrective channel for public service failures, while civil litigation serves as a remedial pathway when actual harm has occurred.
Collectively, these mechanisms rest on the conception of public office as a fiduciary duty, requiring prudence and accountability in accordance with the General Principles of Good Governance (AUPB).
Therefore, there can be no Auvacuum of responsibilityAy merely because an administrative decision arises automatically (Nurdin.
Within this legal construction, administrative officials (Pejabat TUN) continue to bear full official responsibility for fiktif positif decisions as part of their institutional duties, and in 520 | P a g e https://dinastires.
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certain circumstances, personal responsibility, consistent with the principle of geen bevoegdheid zonder verantwoordelijkheid no authority without responsibility which links every administrative power to the obligation to account for its consequences (Barokah & Erliyana, 2.
Although the Job Creation Law (UU Cipta Kerj.
has altered numerous regulatory provisions, the essence of accountability remains unchanged.
The ultimate aim of the fiktif positif mechanism is to enforce timeliness without sacrificing legality and substantive accountability in administrative decision-making (Tekayadi et al.
, 2.
Specifically in environmental law, decisions that Auarise from silenceAy cannot be treated as absolute.
Environmental licensing involving ecological impacts must adhere to the precautionary principle (Article 2 letter f of Law No.
32 of 2.
and the constitutional right to a good and healthy environment (Article 28H paragraph .
of the 1945 Constitutio.
The state, including administrative officials, bears the duty to respect, protect, and fulfill this constitutional right.
Therefore, allowing an automatic approval to be issued in the face of evident environmental risk constitutes a violation of both the AUPB and environmental Accordingly, both administrative mechanisms .
isciplinary measures, corrective decisions, and Ombudsman follow-up.
and civil mechanisms .
ompensation and restoration action.
must be activated simultaneously to ensure that expedited public service operates in harmony with environmental protection.
Available Legal Mechanisms to Provide Protection and Guarantees for Environmental Permit Applicants to Ensure the Effective Execution of Positive Fictitious Administrative Decisions Under the current legal framework, the Job Creation Law (UUCK) provides legal protection for permit applicants through the implementation of the Positive Fictitious Administrative Decision (KTUN Fiktif Positi.
Through this mechanism, an administrative decision is deemed to have been legally issued if the competent official fails to issue a decision within the prescribed time limit.
The amendments introduced by the Job Creation Law accelerate the decision-making timeframe from a maximum of 10 working days, as previously stipulated in the Government Administration Law (UUPA), to 5 working On one hand, this change offers benefits in the form of faster public services and greater administrative convenience for citizens in processing permit applications.
However, on the other hand, such acceleration may also lead to adverse consequences (Irvansyah.
The shortened timeframe carries the potential risk that submitted applications may not be carefully examined or may not be reviewed at all by the competent authorities.
Such circumstances may result in substantive defects within the automatically granted decisions (Naleng et al.
, 2.
Following the enactment of the Job Creation Law, a conceptual shift has occurred regarding the fiktif positif application mechanism.
Previously, applicants could directly file a petition with the Administrative Court (PTUN).
However, under the new regime, the available legal remedy is a factual lawsuit.
This type of lawsuit may be filed when a government body and/or official is suspected of violating the General Principles of Good Governance (AUPB).
Referring to Article 9 paragraph .
of the Government Administration Law (UUAP), every administrative decision or action must be based on statutory provisions as well as the AUPB principles.
These principles include legal certainty, expediency, impartiality, accuracy, prohibition of abuse of power, transparency, public interest, and the delivery of good public services (Zahro & Basri, 2.
The abolition of judicial authority to review applications deemed legally granted, coupled with the absence of an independent oversight institution to monitor and guarantee the execution of such decisions, creates the potential for injustice and abuse of power by the This situation undermines both legal protection and the principle of legal 521 | P a g e https://dinastires.
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certainty, which are fundamental to administrative governance as mandated by Law Number 30 of 2014 on Government Administration.
Moreover, the reduction of judicial authority weakens the balance among the branches of government, reinforcing the dominance of the executive within administrative governance.
In turn, this structural imbalance opens space for authoritarian tendencies in the practice of public administration (Naleng et al.
, 2.
This condition ultimately disadvantages citizens who seek legal certainty regarding the requested Administrative Decision (KTUN).
Consequently, the available legal remedy is through litigation in the form of a government action dispute.
Such disputes are regulated under Supreme Court Regulation (PERMA) Number 2 of 2019 concerning Guidelines for the Settlement of Government Action Disputes and the Jurisdiction to Adjudicate Unlawful Acts by Government Bodies/Officials .
ereinafter referred to as PERMA 2/2.
According to Article 2 of PERMA 2/2019, the Administrative Court (PTUN) has the authority to adjudicate disputes arising from government actions, provided that administrative remedies have first been exhausted.
A government action dispute is defined as an administrative dispute between citizens and government administrators that arises from an act or omission involving a concrete governmental action in the implementation of public administration .
ee Article 1 point 1 in conjunction with Article 1 point 3 of PERMA 2/2.
Furthermore, pursuant to Article 5 paragraph .
of PERMA 2/2019, an Administrative Decision (KTUN) is categorized as a concrete, individual, and final government action, consistent with Article 1 point 3 of the Government Administration Law (UU Administrasi Pemerintaha.
Therefore, the neglect or inaction of an administrative official in responding to a KTUN application can be classified as a government action dispute, which may ultimately be challenged before the Administrative Court (PTUN) (Abrianto et al.
, 2.
Moreover, if citizens feel disadvantaged or dissatisfied with the implementation of the Positive Fictitious Decision concept within the framework of administrative actions, an alternative non-litigation mechanism is also available.
This mechanism allows the submission of a complaint to the Ombudsman of the Republic of Indonesia, the institution authorized to supervise the implementation of public services.
The OmbudsmanAos supervision represents a form of independent external oversight aimed at ensuring the accountability, transparency, and responsiveness of government institutions in delivering public services.
In the context of the Positive Fictitious Decision following the enactment of the Job Creation Law (UUCK), the Ombudsman plays a crucial role in monitoring the passive conduct of government bodies and/or officials.
This function is carried out through the reception and investigation of reports of alleged maladministration in public service delivery.
Pursuant to Article 7 of Law Number 37 of 2008 concerning the Ombudsman of the Republic of Indonesia, the Ombudsman is authorized to receive public complaints regarding alleged In carrying out its investigative function, the Ombudsman must adhere to the principles of independence, non-discrimination, impartiality, and free of charge.
Moreover, the Ombudsman is obliged to hear and consider the statements of all parties and to facilitate accessibility for complainants (Rini & Putri, 2.
Efforts to simplify licensing processes and procedures are further emphasized in Article 19 paragraph .
of Government Regulation Number 24 of 2018, which explicitly stipulates that the authority to issue Business Licenses as referred to in Article 18, including other related documents, must be exercised through the Online Single Submission (OSS) The establishment of the OSS system aims to enhance the effectiveness and efficiency for business actors in obtaining licenses by providing access to an integrated online service platform.
Moreover.
OSS represents a significant step in the implementation of electronic government .
-governmen.
designed to improve the quality of public services in the field of business licensing (Noor et al.
, 2.
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Previously, the licensing mechanism under the traditional permit-based system required every business actor to obtain multiple forms of authorization, regardless of the level of risk associated with their business activities.
This often resulted in lengthy and complex bureaucratic procedures that potentially opened avenues for corrupt practices.
Through the implementation of a risk-based approach within the OSS system, the principle of proportionality is appliedAiwhere the type of licensing and level of supervision are adjusted according to the risk category of the business activity.
This system classifies businesses into four categories:
Low-risk activities, which only require a Business Identification Number (Nomor Induk Berusaha Ae NIB) serving also as a declaration of compliance with business standards.
Medium-low-risk activities, which require an NIB and a Standard Certificate obtained through a self-declaration mechanism.
Medium-high-risk activities, which require an NIB and a Standard Certificate subject to government verification.
High-risk activities, which require an NIB and a specific license, including in-depth assessments such as the Environmental Impact Analysis (AMDAL) for activities with significant environmental implications.
The risk-based approach reflects the application of the precautionary principle, which seeks to maintain a balance between ease of doing business and the protection of public interests, encompassing safety, health, environmental sustainability, and national security (Sari & Rahayu, 2.
CONCLUSION
Following the enactment of the Job Creation Law (Omnibus La.
, the acceleration of public services and automation through the Online Single Submission (OSS) system has, in practice, increased the risk of diminished checks and balances and the emergence of positive fictitious decisions .
iktif positi.
without adequate substantive environmental review.
This situation constitutes an initial test of administrative accountability.
In this context, administrative officials continue to bear responsibility on two fronts.
First, administrative liability, which includes corrective measures and disciplinary sanctions imposed by superiors or internal government supervisors (APIP), as well as external oversight by the Ombudsman in cases of maladministration .
naction or negligenc.
This responsibility extends to the obligation to review and, if necessary, revoke defective decisions.
Second, civil liability, which arises through tort actions .
nrechtmatige overheidsdaa.
for damages and/or environmental restoration when negligence causes harm.
All these mechanisms rest upon the General Principles of Good Governance (AUPB), the precautionary principle, and the notion of public office as a fiduciary trust embodied in the maxim geen bevoegdheid zonder verantwoordelijkheid (Auno authority without responsibilityA.
Therefore, a decision by silence can never eliminate official accountability.
rather, it demands concrete corrective actions to ensure that administrative efficiency does not come at the expense of environmental The foregoing analysis demonstrates that, following the implementation of the Job Creation Law, the mechanism of positive fictitious decisions in licensing has undergone a profound transformation.
On one hand, the acceleration of decision deadlines, procedural simplification through OSS, and the adoption of a risk-based approach have facilitated efficiency and ease for applicants and business actors.
On the other hand, these reforms have also created new challenges such as the risk of maladministration, the weakening of legal protection due to reduced judicial oversight, and the increasing dominance of the executive branch, which may disturb the balance of power.
In this context, the Administrative Court (PTUN), through government action lawsuits, together with the supervisory function of the 523 | P a g e https://dinastires.
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Ombudsman of the Republic of Indonesia, serve as crucial instruments to uphold accountability, transparency, and the protection of citizensAo rights in the implementation of administrative governance.
REFERENCE