Makna Ganda Kata 'Dapat' dan Rekonstruksi Kepastian Hukum Pasal 75 UU Administrasi Pemerintahan

Abstract

This study analyzes the differing interpretations of the word “may” in Article 75(1) of the Administrative Government Law and reconstructs the theory of legal certainty to resolve the inconsistency between the Administrative Government Law and PERMA No. 6 of 2018. This is a normative legal study employing legislative, case-based, and conceptual approaches. The findings indicate that the interpretive discrepancy stems from a dualism in judicial paradigms: Administrative Court (PTUN) judges apply a literal interpretation that mandates administrative remedies as an absolute prerequisite for filing a lawsuit, whereas appellate judges adopt a systematic interpretation that interprets “dapat” as an optional alternative. Systemic factors reinforcing this discrepancy include the disharmony between the Administrative Procedure Law (AP Law) and PERMA No. 6/2018, as well as the absence of published dissenting opinions in the Administrative Court. The proposed reconstruction of the theory of legal certainty is flexible procedural certainty, treating administrative remedies as Primum Remedium rather than Ultimum Remedium, through three pillars: the duty to notify, the opportunity for rectification, and the three-tiered certainty parameters (lex scripta, lex certa, lex iusta). Consequently, PERMA No. 6 of 2018 needs to be revoked or revised.