Beyond Refusal or Acceptance: Reformulating Administrative Silence in Indonesia from a Comparative French Model

Abstrak

The administrative silence is constructed as a legal fiction that originated as a negative (silence as refusal) and has since developed into a positive (silence as acceptance). In European administrative law, no system operates exclusively based on one legal fiction. Both negative and positive fictions are employed with defined limitations, as in France. Conversely, in Indonesia, these fictions are considered conflicting and override each other due to complex regulations and undefined limitations, leading to ambiguity. Therefore, this article aims to reformulate the concept of administrative silence in Indonesia through a comparative doctrinal legal research approach. The findings proved that both fictions have distinct conceptual origins and should be applied in their respective contexts. Although as fiction, their implementation, particularly in cases of positive fiction, should reflect the principle of administrative law that a decision is an expression of “will.” Consequently, Indonesia should reformulate its approach by applying both fictions simultaneously with defined limitations, based on the decision type: declarative or constitutive, rather than treating them as a dichotomy. Ultimately, this article contributes to comparative administrative law by examining administrative silence in Indonesia through the relationship between negative fiction, positive fiction, and decision typology based on comparison with the French model.