Legal Policy in Regulating the Sale of State Houses Class III (Idle State Property) Without Auction to Civil Servants Reviewed from the Perspective of “The Theory of Fairness” From John Rawls

Abstract

Auction is universally recognized as the most accountable and fair-trading system. This is also recognized by the Republic of Indonesia, as stated in Article 48 of the Law of the Republic of Indonesia Number 1 of 2004 concerning the State Treasury junto Article 61 Government Regulation Article 61 Number 27 of 2014 concerning Management of State Property, where it is stated that all sales of State Property must be done through auction. The problem is, in the same Article there are exceptions in certain matters without going through an auction. This particular matter relates to discrimination against civil servants in the arrangement for the sale of State Houses Class III (Idle State Property) without having to go through an auction and even with a price of 50% of the valuation. Of course, the legal policy that apply these exceptions in addition to causing legal problems, also philosophical, theoretical, and sociological issues. The legal issue that arises is a conflict of norms between what should be (das sollen) in the constitution and the norms written in laws and regulations (das sein). In this case there has been a conflict of norm between Article 27 paragraph (1) of the 1945 Constitution of the Republic of Indonesia which contradicts the regulations related to the regulation of State Houses as State Property in the form of land and buildings. From the juridical problems mentioned above. The legal issues mentioned above, then there are relevant questions to be studied. The question is: how is the legal policy that gives exceptions or differential treatment (“discrimination”) to civil servants viewed from the perspective of social justice from John Rawls in accordance with the principles and goals of the Indonesian nation, namely to realize Social Justice for All Indonesian People. The question is the research problem referred in this paper