Ambivalensi Hukum Sikap Diam Pejabat antara Fiktif Negatif dan Positif: Implikasi terhadap Kepastian Hukum Warga Negara

Abstract

The legal ambivalence between negative and positive fiction in interpreting official silence under the Job Creation Law has created serious legal uncertainty. This normative legal research, employing legislative, case-law, and conceptual approaches, reveals that eliminating the Administrative Court's (PTUN) authority over positive fictive requests without providing a replacement mechanism has produced a legal vacuum, further aggravated by the Supreme Court's fluctuating SEMA. The proposed ideal framework distinguishes between two mechanisms: positive fiction for declaratory decisions, to be resolved through non-litigation forums, and negative fiction for constitutive decisions, which should remain under PTUN jurisdiction. Fundamental reforms must include strengthening public service standards to prevent official inaction, alongside effective oversight by the Ombudsman and meaningful public participation. In conclusion, this ambivalence undermines constitutional rights and therefore requires harmonization of the Administrative Court Law, the Administrative Procedure Law, and the Job Creation Law, coupled with responsive and accountable oversight mechanisms.