Bachelor Program International Class

  Administrative

Authority, Action and

Decision Eka Sri Sunarti Administrative Law Bachelor Program International Class Spring Semester 2012

  Administrative Authority

An ofcial, in occupying administrative ofce,

should be vested with legitimate authority according to prevailing laws, by ways of… 1.

  Attribution 2. Delegation 3. Mandate _ An authority is always bound to… _ Period or time-frame _ Scope or subject matters Place or territory Types of Authority 1.

  Attribution is granting of a new authority to an administrative ofcial by law in order

to conduct administration in full capacity

  2. Delegation is partial transfer of authority originating from attributive authority to an administrative ofcial

  3. Mandate is an assignment given to a mandatory/mandatarius (acceptor of mandate) by a mandator/mandans (giver of mandate) to accomplish certain tasks or duties, while the authority stays in the hand of mandans Authority Based on Laws _ Regulation or laws are the sources of administrative authorities. They serve as bases of legality for any action and or _ decision taken by administrative ofcials.

  Regulation here concerns with legislations adopted by competent legislators, which include (a) original legislators in central and local levels; and, (b) delegated legislators i.e.

  

President and administrative apparatus

under his command.

Stufenbau der Nawiasky

  Staatsfundamentaln orm Staatsgrundgesetz Formelle Gesetz Verordnungen/ Autonome

  Hierarchy in Indonesia _ State's Fundamental Norm: Pancasila, _ Preamble of 1945 Constitution State's Basic Law: Articles of 1945 Constitution, Decrees of People's _ Consultative Assembly, Conventions _ Formal Law: Law Implementing Regulations/ Autonomous Administrative Regulations: Government Regulations, Presidential Regulations, Local

Regulations, Decrees of regulatory bodies,

head of autonomous regions, ministers

  To Avoid Abuse of Power _

Public authority grants its holder two kinds

of extraordinary powers i.e. _1. Prealable Authority. The authority to take actions and decisions without consulting any third party or asking for _2. his/her consent; and, Ex ofcio Authority. The authority to take actions and decisions due to one's _ ofce, uncontestable by others These authority shall be exercised according to prevailing laws and regulations, or else there will be abuse of power.

  Limits to Authority

Administrative actions and decisions should be taken...

_ Efficiency (doelmatigheid) - in accordance with _ predetermined goals.

  Legality (rechtmatigheid) - lawfully i.e. just, proper _ and fair Regularity (wetmatigheid) - based upon written _ laws Discretionary Power (freies ermessen, pouvoir

discretionnaire) - based upon own (wise) judgment

_ and consideration according to… Proper/Good Governance (GG), General Principles of (algemene beginselen van behoorlijk bestuur)

  Algemene Beginselen van Behoorlijk Bestuur 

  provides basis and ethical nuance in legal system —Paul Scholten

  

  serves as basic norms and standards for administrative ofcials in adopting public policy — Bellefroid

  

  gives direction while taking actions and decisions in the exercise of administrative power

  Algemene Wet Bestuursrecht 

  In Netherlands, study on the principles

of good governance was pioneered by

de Monchy in 1950, due to the facts that many public interests were neglected back then.

   Previously, it was in the form of unwritten principles and not included in any Laws, but nowadays codifed in Algemene Wet Bestuurrecht; Awb 1994 (General Administrative Law Act; GALA) De Monchy’s GG 

  Legal certainty

  

  

  Respect to others' opinion

  

  Impartiality

  

  Honesty

  

  Exercise of Public Interest

  

  Consideration

  Protection to Outlook on Life

  

  

  Justice

  

  Fairness

  

  Carefulness

  

  Equality

  

  Balance

  accountability Functions of GG 

  Guidance for administrative ofcials in taking decisions, actions and in law- making.

   Basis for claims against administrative decisions should the principles be violated

   A yardstick to measure the lawfulness of administrative decisions in question.

   A tool to prevent abuse of power or authority, injustice and dishonesty. Prayudi's Categories of GG _

Principles on Decision Making Procedures i.e.

  

(i) Decision makers shall never have personal

interest in deciding matters; (ii) public opinion shall be solicited prior to making decisions that harm public interest; (iii) factual condition _ shall be taken into consideration.

  

Principles on the Accuracy of Facts that Serve as Basis for Decision Making i.e. (i) prohibition to arbitrariness; (ii) prohibition to abuse and

transgression of authority; (iii) legal certainty;

(iv) prohibition to legal discrimination; (v) null

due to carelessness of administrative ofcial. GG in Indonesia In Indonesia, Principles of Good Governance can be found, among others, in... _ Law 5/1986 on Administrative Court. _ General Elucidation.

  Law 29/1999 on Clean Government, Free _ from Corruption, Collusion and Nepotism. _ Law 37/2008 on Ombudsman. _ Law 25/2009 on Public Service.

  Draft Laws on Government Administration and Ethics of State Administrator Types of Administrative Action 

  Material, non-legal action (bestuursdaad) - actions taken in

implementing administrative functions

whose consequences are not regulated

by laws;

   Legal action (rechtshandeling) actions

take in implementing legal functions of

administration, whose consequences are regulated and sanctioned by law i.e. non-performance is subject to legal sanctions.

Administrative Legal Action

  Privat Public e One-sided Double- sided

  

Decision Regulatio

n

  

Double-sided Public Legal Action

 is basically agreements governed by public law.

   resulted from contracts where government is one of the parties.

   General contractual matters are governed by private law, but details are governed by public law.

   Examples include short-term procurement involving government

bodies/ofcials and private contractors (public-private partnership?) One-sided Public Legal Action  is basically unilateral actions taken and implemented by government

bodies/ofcials based on extraordinary

authority.

  

hence, there are 4 (four) elements i.e. i. unilateral; ii. pertaining to administrative matters; iii. taken and implemented by

government bodies/ofcials; and, iv.

based on extraordinary authority. Regulation (Regeringsbesluit) 

  Public. Applies to general public

  i.e. everyone

   Abstract. subject matters are of a general nature.

  

Continual. in efect continually

(dauerhaftig).

  

  Examples: all implementing regulations/ autonomous administrative regulations Decision (Beschikking) _ Individual. applies to certain individuals/ _

persons only i.e. identities are clearly stated.

  Concrete. pertaining to specifc subject _ matters.

  One-of. applies and fnished at the time it is _ decided (einmalig).

  Examples ^• Legislative realm: Law on Budget, Ratifcation

• ^• Judicial realm: Judge's decisions/ verdicts ^•

  Administrative realm: decrees Classifcation of Administrative Actions 

  Nature (i) order-giving; and, (ii) service- _ giving.

  Consequences (i) legal consequence; _ and, (ii) non-legal consequence.

  Applicability (i) individual; and, (ii) _ public.

  Opposability (i) internal; and, (ii) _ external.

  Manifestation of intention (i) unilateral; _ (ii) bilateral; and, (iii) multilateral.

  Structure (i) simple; and, (ii) complex. Validity Requirements 

  Decisions adopted and/or passed by authorized body/ofcial i.e. in subject matters, location/territory and timeframe.

  

  Decisions shall not have legal defects, errors, coercion, and/or fraud.

  

  Decision's form and content, as well as goals, shall be in accordance with its legal bases. Annulment of Decisions 

  

Ex Tunc. Annulment of decision

by court due to essential defects.

  The decision is deemed null and void since its adoption.

  

Ex Nunc. Annulment of decision

  by court due to defects. The decision was valid until the day it was annulled by the court. Prayudi’s Categories of Decision 

  Negative Decision. Rejection of applications from the public due to failure in fulflling _ requirements, hence, can be resubmitted.

  Positive Decision. Granting of applications both wholly or partially, that consists of: _

Decision that creates new legal situation in

_ general

Decision that creates new legal situation for

_ certain object.

  Decision that incorporate or dissolve legal _ entity Favorable decisions, that include dispensation, permit, license and concession. Favorable Decisions 

  

Dispensation. exempting the

  applicability of certain requirements.

   Permit. exempting the

  applicability of certain prohibitions.

  

License. decision to allow the

establishment of companies.

   Concession. license with wider