DEPARTMENT OF ADMINISTRATIVE LAW
Administrative
Decision
UNIVERSITAS INDONESIA FACULTY OF LAW
DEPARTMENT OF ADMINISTRATIVE LAW
Translated into English by Bono Budi P
11/23/2018
TIM HAN ©hn 2013
1
Decision
• Beschikking, as a study object in
administrative law, was introduced by WF
Prins.
• van Wijk and Konijnenbelt argued that
decisions pertain to matters that are
concrete and individual i.e. not addressed
to public, and has been the main jural
instrument of governance throughout
history.
• Stroink and Steenbeek argued that decision
is the core concept of administrative law.
11/23/2018
TIM HAN ©hn 2013
2
Elements of Decision
• Unilateral statement of will
• Issued by administrative organs
• Based on legal authority of public
nature
• Aimed at specifc matters or
concrete and individual events
• With the purpose of creating
legal consequence in
administration
11/23/2018
TIM HAN ©hn 2013
3
Elements of Decision
Donner
Decision is ofcial act of
government
• Ofce
• Authority
Unilateral statement of will
Pertaining to certain matters
Having legal consequence
11/23/2018
TIM HAN ©hn 2013
4
Decision Algemeene Wet
Bestuursrecht (AWB) Art. 2
Written statement of will
Issued based on constitutional or
administrative obligation or authority
Unilateral
Exception/ Waiver to decision of general nature
Purposes
Stipulation,
Annulment, or
Termination of existing legal relation, or
Creating new legal relation,
Rejection that leads to:
stipulation,
amendment,
annulment, or
establishment
By government organs
11/23/2018
TIM HAN ©hn 2013
5
Decision Law 5/86 Art. 1 Nr. 3
• Written statement
• Issued by administrative
ofcial/agency
• Based on prevailing regulations
• of concrete, individual, and fnal
nature
• Having legal consequence
• Addressed to person or legal
entity
11/23/2018
TIM HAN ©hn 2013
6
TYPES OF DECISION
POSITIVE
Creating new legal situation in general
(slapende regeling)
Creating new legal situation to a
certain object
Dispensation
Establishing or dissolving
legal entity
Permit
Imposing burden to citizen
License
Beneftting individual citizen or
private entity
Concession
Stat. about being unauthorizedRationae materiae
(onbevoeg verklaring)
Rationae locus
11/23/2018
NEGATIVE
Stat. about unacceptability
(niet ontvankelijk verklaring)
Stat. about overall rejection
(een algehele afwijzing)
TIM HAN
Prof. Dr. Prajudi Atmosudirdjo
©hn 2013
Rationae temporis
E. UTRECHT
TIM HAN ©hn 2013
Positive and Negative
Onbevoeg
Niet ontvankelijk
Afwijzing
Declaratory and Constitutive
Decision Types Temporary and permanent (Blijvend)
modifying (old text in stipulation)
negative
Prins
revocation/annulment of old decision
Implementation statement
Dispensation, Permit, License and Concess
11/23/2018
8
Positive Decision
Decision that creates rights and
obligations on addressat’s part.
In general, creating new legal situation.
In general, creating new legal situation
for a certain object.
Causing a legal entity to be established
or dissolved.
Imposing new obligation (order) to
individual(s).
Granting new right to individual(s).
11/23/2018
TIM HAN ©hn 2013
9
Negative Decision
• Does not alter/ modify existing
legal situation
– unauthorized
– unacceptable
– rejected
• Does not alter/ modify existing
legal consequence.
11/23/2018
TIM HAN ©hn 2013
10
Declaratory Decision
• Does not alter/ modify
existing rights and
obligations.
• Corroborates existing rights
and obligations.
• Confrming validity of a legal
relation.
11/23/2018
TIM HAN ©hn 2013
11
Constitutive Decision
• Imposing obligation to do sth., to not do sth., or
to allow sth.
• Granting status to person, institution, or
company, thereby may stipulates legal rules.
• Granting incentive or beneft to government act
e.g. subsidies and grants
• Allowing sth. that previously was not allowed.
• Allowing or cancelling the applicability of a
decision from subordinate organs i.e.
endorsement or revocation.
11/23/2018
TIM HAN ©hn 2013
12
• Dispensation statement from
authorized administrative ofcial that
certain regulatory stipulation is not
applicable to a case as submitted by
an applicant.
• Permit Exemption to prohibitions
• License Exemption from prohibitions
due to certain qualifcations
• Concession A complex of
dispensations, permits and licenses
granted for certain period in a certain
place/ area.
11/23/2018
TIM HAN ©hn 2013
13
13
One-of
and
Permanent
Decision
• One-of valid for a short period
of time e.g. IMB, mass gathering
permit.
• Permanent valid for a relatively
long period of time
11/23/2018
TIM HAN ©hn 2013
14
Conditions to Make Decision
• Substantive
• Authorized
• No legal flaws
•
•
•
•
Dwaling (misleading)
Bedrog (cheating)
Dwang (coercion)
Omkoping (bribery)
• Based on certain situation
• Can be implemented without violating other
regulatory stipulations.
• Substance and purpose must match to the
substance and purpose of superordinate
stipulations.
11/23/2018
TIM HAN ©hn 2013
15
15
Conditions to Make Decision
• Procedural
• Preparation and making must be in
accordance with prevailing terms and
conditions.
• Form must be in accordance with regulatory
stipulation serving as legal basis.
• Implementation requirements must be
fulflled.
• Grace period between announcement of
decision and event that causes the decision
to be made.
11/23/2018
TIM HAN ©hn 2013
16
16
Rational Materiae
Unauthorized
Rational Locus
Rational Temporis
Against the Law
Format flaw or procedural
mistake
Invalid Decision
Against higher stipulation
Arbitrary or exceeding authority
Substance
Not based on proper or rational consider
from impacted parties point of view
Against GG
11/23/2018
TIM HAN ©hn 2013
17
Consequences of Invalid Decision
Null and void
Contestability of application
Appeal
Annulment by ofce due violation of laws
Revocation by authorized ofce making
the decision
Endorsement not granted, where
endoresement from superordinate ofce is
required.
Assigned diferent purpose from the original
one.
11/23/2018
TIM HAN ©hn 2013
18
Administrative Law and Private Law
• As a representative of public legal
entity, government may conduct
legal acts in private law realms.
• Also known as two-sided adm. legal
acts
• Purely acts of private nature e.g. sell
and buy, contracts, rents.
• Acts (Decisions) that merge into private
acts e.g. decision to validate/ deny a
private legal relation between
administrative agencies/ ofcials.
11/23/2018
TIM HAN ©hn 2013
19
Decision that merges into private act
• Decision whose extent endorse or deny private
acts e.g. decision to sell ofcial houses to
public servants, decision by PT Telkom to reject
phone connection.
• Decision that causes the fulfllment or
unfulfllment of requirements for a private act
to be conducted validly e.g. endorsement of
tender winner and issuance of work order.
• Decision that is an implementation of a private
act e.g. decision to allow occupation of houses
built under an agreement between regional
head and developer.
11/23/2018
TIM HAN ©hn 2013
20
Decision that merges into private act
• The purpose of such decisions is
to regulate and validate private
act, whose elements are:
• Endorsement or denial
• Fulfllment of requirements
• Implementation
11/23/2018
TIM HAN ©hn 2013
21
Decision that merges into private act
• In its implementation, such decisions
may constitute unlawful act.
onrechtmatige overheidsdaad
• Legal protection to citizens against
government’s unlawful act in its
capacity as representative of public
legal entity is provided by general
courts.
11/23/2018
TIM HAN ©hn 2013
22
Administrative Law and
Criminal Law
• Government’s unlawful act means it violates
legal regulations, (wettelijkstarftbepaling) i.e.
in a procedural sense. (MK Decision Nr. 003/2006)
• Theoretically...
• In line with legality principle in Penal Code Art. 1.1
• Criminal stipulations may only be in UU and Perda
• Philosophically, Kelsen argued that criminal
sanction falls into the category of coercive
acts that may constitute confscation of
proprietary rights e.g. right to life, health,
freedom or property.
11/23/2018
TIM HAN ©hn 2013
23
• An Ofcial...
• acts unlawfully in a procedural
sense if such act is conducted in
her capacity as an administrative
ofcial whilst pertains to
government norms.
• acts unlawfully in a substantive
sense if she performs
maladministration, whose
consequence is personal liability.
11/23/2018
TIM HAN ©hn 2013
24
Abuse of Authority
• Detournement de pouvoir
• Authority (bevoegheid) is the whole
rights and obligations granted and
imposed explicitly by law to public
legal subject.
• bevoegheid contains task (taak), rights
(rechten), obligations (plichten),
liabilities (verantwoordelijkheid)
• Competence to conduct certain legal
acts.
11/23/2018
TIM HAN ©hn 2013
25
Speciality Principle
• Authority vested to a legal subject
with predetermined specifc
purpose.
• Deviation from such purpose may
constitute an abuse of authority.
• Specifcation of purpose is defned/
delineated in legal regulation that
stipulates the authority.
11/23/2018
TIM HAN ©hn 2013
26
• Hadjon argues that elements of an
abuse of authority are as follows.
• Implementation for other purposes
• Does not constitute negligence
• Conducted in full awareness/
intentionally
• Vested with own and/or other people’s
interests.
• Can only happen to attribution and
delegation. Mandataris cannot
abuse authority because it stays with
the Mandans.
11/23/2018
TIM HAN ©hn 2013
27
Detournement de Pouvoir
vs Ultra Vires
• Wade argues that ultra vires happens
where power and authority are given
for a specifc purpose.
• Relevant Adm. Law principle is Validity
i.e. Doing the right thing in the right
way.
• Ultra vires is diferentiated into
substantive ultra vires and procedural
ultra vires.
11/23/2018
TIM HAN ©hn 2013
28
• Substantive ultra vires = doing the
wrong thing
• Procedural ultra vires = doing the
right thing in the wrong way.
• Public Corruption = doing the wrong
thing in the wrong way, containing
elements of maladministration, causing
loss to public fnance.
11/23/2018
TIM HAN ©hn 2013
29
Beyond Authority
• Beyond authority = unauthorized
(onbevoegd)
• Pertains to legality principle.
• Unauthorized act = null and void (neitig
van rechtwege)
• Unauthorized can be in these regards
• Area
• Time
• Subject matter
• Criminally liable if elements are fulflled.
11/23/2018
TIM HAN ©hn 2013
30
Arbitrariness (Willekeur)
• Pertains to discretionary power
• D.J.Galigan: pertains to reasons to
use discretionary power, does not
constitute reasonable act.
• Rationality or properness as
essential parameter.
• Arbitrariness = irrationality
• May be held criminally liable.
11/23/2018
TIM HAN ©hn 2013
31
Decision
UNIVERSITAS INDONESIA FACULTY OF LAW
DEPARTMENT OF ADMINISTRATIVE LAW
Translated into English by Bono Budi P
11/23/2018
TIM HAN ©hn 2013
1
Decision
• Beschikking, as a study object in
administrative law, was introduced by WF
Prins.
• van Wijk and Konijnenbelt argued that
decisions pertain to matters that are
concrete and individual i.e. not addressed
to public, and has been the main jural
instrument of governance throughout
history.
• Stroink and Steenbeek argued that decision
is the core concept of administrative law.
11/23/2018
TIM HAN ©hn 2013
2
Elements of Decision
• Unilateral statement of will
• Issued by administrative organs
• Based on legal authority of public
nature
• Aimed at specifc matters or
concrete and individual events
• With the purpose of creating
legal consequence in
administration
11/23/2018
TIM HAN ©hn 2013
3
Elements of Decision
Donner
Decision is ofcial act of
government
• Ofce
• Authority
Unilateral statement of will
Pertaining to certain matters
Having legal consequence
11/23/2018
TIM HAN ©hn 2013
4
Decision Algemeene Wet
Bestuursrecht (AWB) Art. 2
Written statement of will
Issued based on constitutional or
administrative obligation or authority
Unilateral
Exception/ Waiver to decision of general nature
Purposes
Stipulation,
Annulment, or
Termination of existing legal relation, or
Creating new legal relation,
Rejection that leads to:
stipulation,
amendment,
annulment, or
establishment
By government organs
11/23/2018
TIM HAN ©hn 2013
5
Decision Law 5/86 Art. 1 Nr. 3
• Written statement
• Issued by administrative
ofcial/agency
• Based on prevailing regulations
• of concrete, individual, and fnal
nature
• Having legal consequence
• Addressed to person or legal
entity
11/23/2018
TIM HAN ©hn 2013
6
TYPES OF DECISION
POSITIVE
Creating new legal situation in general
(slapende regeling)
Creating new legal situation to a
certain object
Dispensation
Establishing or dissolving
legal entity
Permit
Imposing burden to citizen
License
Beneftting individual citizen or
private entity
Concession
Stat. about being unauthorizedRationae materiae
(onbevoeg verklaring)
Rationae locus
11/23/2018
NEGATIVE
Stat. about unacceptability
(niet ontvankelijk verklaring)
Stat. about overall rejection
(een algehele afwijzing)
TIM HAN
Prof. Dr. Prajudi Atmosudirdjo
©hn 2013
Rationae temporis
E. UTRECHT
TIM HAN ©hn 2013
Positive and Negative
Onbevoeg
Niet ontvankelijk
Afwijzing
Declaratory and Constitutive
Decision Types Temporary and permanent (Blijvend)
modifying (old text in stipulation)
negative
Prins
revocation/annulment of old decision
Implementation statement
Dispensation, Permit, License and Concess
11/23/2018
8
Positive Decision
Decision that creates rights and
obligations on addressat’s part.
In general, creating new legal situation.
In general, creating new legal situation
for a certain object.
Causing a legal entity to be established
or dissolved.
Imposing new obligation (order) to
individual(s).
Granting new right to individual(s).
11/23/2018
TIM HAN ©hn 2013
9
Negative Decision
• Does not alter/ modify existing
legal situation
– unauthorized
– unacceptable
– rejected
• Does not alter/ modify existing
legal consequence.
11/23/2018
TIM HAN ©hn 2013
10
Declaratory Decision
• Does not alter/ modify
existing rights and
obligations.
• Corroborates existing rights
and obligations.
• Confrming validity of a legal
relation.
11/23/2018
TIM HAN ©hn 2013
11
Constitutive Decision
• Imposing obligation to do sth., to not do sth., or
to allow sth.
• Granting status to person, institution, or
company, thereby may stipulates legal rules.
• Granting incentive or beneft to government act
e.g. subsidies and grants
• Allowing sth. that previously was not allowed.
• Allowing or cancelling the applicability of a
decision from subordinate organs i.e.
endorsement or revocation.
11/23/2018
TIM HAN ©hn 2013
12
• Dispensation statement from
authorized administrative ofcial that
certain regulatory stipulation is not
applicable to a case as submitted by
an applicant.
• Permit Exemption to prohibitions
• License Exemption from prohibitions
due to certain qualifcations
• Concession A complex of
dispensations, permits and licenses
granted for certain period in a certain
place/ area.
11/23/2018
TIM HAN ©hn 2013
13
13
One-of
and
Permanent
Decision
• One-of valid for a short period
of time e.g. IMB, mass gathering
permit.
• Permanent valid for a relatively
long period of time
11/23/2018
TIM HAN ©hn 2013
14
Conditions to Make Decision
• Substantive
• Authorized
• No legal flaws
•
•
•
•
Dwaling (misleading)
Bedrog (cheating)
Dwang (coercion)
Omkoping (bribery)
• Based on certain situation
• Can be implemented without violating other
regulatory stipulations.
• Substance and purpose must match to the
substance and purpose of superordinate
stipulations.
11/23/2018
TIM HAN ©hn 2013
15
15
Conditions to Make Decision
• Procedural
• Preparation and making must be in
accordance with prevailing terms and
conditions.
• Form must be in accordance with regulatory
stipulation serving as legal basis.
• Implementation requirements must be
fulflled.
• Grace period between announcement of
decision and event that causes the decision
to be made.
11/23/2018
TIM HAN ©hn 2013
16
16
Rational Materiae
Unauthorized
Rational Locus
Rational Temporis
Against the Law
Format flaw or procedural
mistake
Invalid Decision
Against higher stipulation
Arbitrary or exceeding authority
Substance
Not based on proper or rational consider
from impacted parties point of view
Against GG
11/23/2018
TIM HAN ©hn 2013
17
Consequences of Invalid Decision
Null and void
Contestability of application
Appeal
Annulment by ofce due violation of laws
Revocation by authorized ofce making
the decision
Endorsement not granted, where
endoresement from superordinate ofce is
required.
Assigned diferent purpose from the original
one.
11/23/2018
TIM HAN ©hn 2013
18
Administrative Law and Private Law
• As a representative of public legal
entity, government may conduct
legal acts in private law realms.
• Also known as two-sided adm. legal
acts
• Purely acts of private nature e.g. sell
and buy, contracts, rents.
• Acts (Decisions) that merge into private
acts e.g. decision to validate/ deny a
private legal relation between
administrative agencies/ ofcials.
11/23/2018
TIM HAN ©hn 2013
19
Decision that merges into private act
• Decision whose extent endorse or deny private
acts e.g. decision to sell ofcial houses to
public servants, decision by PT Telkom to reject
phone connection.
• Decision that causes the fulfllment or
unfulfllment of requirements for a private act
to be conducted validly e.g. endorsement of
tender winner and issuance of work order.
• Decision that is an implementation of a private
act e.g. decision to allow occupation of houses
built under an agreement between regional
head and developer.
11/23/2018
TIM HAN ©hn 2013
20
Decision that merges into private act
• The purpose of such decisions is
to regulate and validate private
act, whose elements are:
• Endorsement or denial
• Fulfllment of requirements
• Implementation
11/23/2018
TIM HAN ©hn 2013
21
Decision that merges into private act
• In its implementation, such decisions
may constitute unlawful act.
onrechtmatige overheidsdaad
• Legal protection to citizens against
government’s unlawful act in its
capacity as representative of public
legal entity is provided by general
courts.
11/23/2018
TIM HAN ©hn 2013
22
Administrative Law and
Criminal Law
• Government’s unlawful act means it violates
legal regulations, (wettelijkstarftbepaling) i.e.
in a procedural sense. (MK Decision Nr. 003/2006)
• Theoretically...
• In line with legality principle in Penal Code Art. 1.1
• Criminal stipulations may only be in UU and Perda
• Philosophically, Kelsen argued that criminal
sanction falls into the category of coercive
acts that may constitute confscation of
proprietary rights e.g. right to life, health,
freedom or property.
11/23/2018
TIM HAN ©hn 2013
23
• An Ofcial...
• acts unlawfully in a procedural
sense if such act is conducted in
her capacity as an administrative
ofcial whilst pertains to
government norms.
• acts unlawfully in a substantive
sense if she performs
maladministration, whose
consequence is personal liability.
11/23/2018
TIM HAN ©hn 2013
24
Abuse of Authority
• Detournement de pouvoir
• Authority (bevoegheid) is the whole
rights and obligations granted and
imposed explicitly by law to public
legal subject.
• bevoegheid contains task (taak), rights
(rechten), obligations (plichten),
liabilities (verantwoordelijkheid)
• Competence to conduct certain legal
acts.
11/23/2018
TIM HAN ©hn 2013
25
Speciality Principle
• Authority vested to a legal subject
with predetermined specifc
purpose.
• Deviation from such purpose may
constitute an abuse of authority.
• Specifcation of purpose is defned/
delineated in legal regulation that
stipulates the authority.
11/23/2018
TIM HAN ©hn 2013
26
• Hadjon argues that elements of an
abuse of authority are as follows.
• Implementation for other purposes
• Does not constitute negligence
• Conducted in full awareness/
intentionally
• Vested with own and/or other people’s
interests.
• Can only happen to attribution and
delegation. Mandataris cannot
abuse authority because it stays with
the Mandans.
11/23/2018
TIM HAN ©hn 2013
27
Detournement de Pouvoir
vs Ultra Vires
• Wade argues that ultra vires happens
where power and authority are given
for a specifc purpose.
• Relevant Adm. Law principle is Validity
i.e. Doing the right thing in the right
way.
• Ultra vires is diferentiated into
substantive ultra vires and procedural
ultra vires.
11/23/2018
TIM HAN ©hn 2013
28
• Substantive ultra vires = doing the
wrong thing
• Procedural ultra vires = doing the
right thing in the wrong way.
• Public Corruption = doing the wrong
thing in the wrong way, containing
elements of maladministration, causing
loss to public fnance.
11/23/2018
TIM HAN ©hn 2013
29
Beyond Authority
• Beyond authority = unauthorized
(onbevoegd)
• Pertains to legality principle.
• Unauthorized act = null and void (neitig
van rechtwege)
• Unauthorized can be in these regards
• Area
• Time
• Subject matter
• Criminally liable if elements are fulflled.
11/23/2018
TIM HAN ©hn 2013
30
Arbitrariness (Willekeur)
• Pertains to discretionary power
• D.J.Galigan: pertains to reasons to
use discretionary power, does not
constitute reasonable act.
• Rationality or properness as
essential parameter.
• Arbitrariness = irrationality
• May be held criminally liable.
11/23/2018
TIM HAN ©hn 2013
31