The Concept development of the General Principles of Good Governance in Indonesian Public Administration Law
Eny Kusdarini, SH., M. Hum
Faculty of Social Sciences, Yogyakarta State University e-mail: eny.kusdarini@yahoo.com
Setiati Widihastuti, SH., M.Hum
Faculty of Social Sciences, Yogyakarta State University e-mail: setiatiwidihastuti@yahoo.com
Candra Dewi Puspitasari, SH., LL.M
Faculty of Social Sciences, Yogyakarta State University e-mail: chandradewi@yahoo.com
Abstract
This paper aims to describe the concept development of the general principles of good governance in Indonesian Public Administration Law since the concept was introduced by Crins de Roy in Indonesia until those principles are stipulated in various regulations in Indonesia.
Some parts of this paper are written based on the research findings of Fundamental Research Grant conducted in 2014. The data were collected from a variety of literature and documentation of various laws in Indonesia. In the early stage, the data were gathered through interviews with officials and staffs of the National Law Development Agency in Jakarta.
The research findings show that the development of the general principles of good governance in the Indonesian Public Administration Law was begun with the stipulation of these principles in the unwritten law of Indonesian Public Administration Law. In the next stage after the collapse of the New Order, the principles were presented in the form of laws as written laws in Indonesia which include the Law No.28 of 1999 on the Implementation of the government that is clean and free from corruption; Law No.25 of 2009 on Public Services; and Law No.30 Year 2014 on Government Administration which was developed in October 2014 after the study had finished.
Keywords: The Development of the General Principles of Good Governance, Good Governance, Indonesian Public Administration Law
A. Introduction
in practice, it is frequently that the actions taken by the government apparatus cause loss for the people due to arbitrary acts of some of the government apparatus. Hence, the principles of good governance as a part of Administrative Law are needed to restrict the government apparatus in taking actions which brings negative consequences for the people.
In fact, as stated by SF Marbun (2001: 116-145), the general principles of good governance in state life has function and meaning as follows.
1) For State Administration, it functions as guidance in making interpretation and implementation the succinct, vague, or unclear laws;
2) For people as the justice seekers, it can be used as the base of lawsuit to State Administration Court;
3) For the judges of the State Administration Court, it is used as the instrument to test and annul the decisions issued by the Board and Official of State Administration who is claimed through state administration court;
4) For the legislative board, it is useful to establish laws.
Some materials of this article are written based on the results of Fundamental Grant in 2014 which studied the difference of general concept development of good governance between Indonesian Administrative Law and Dutch Administrative Law. The research was initiated by studying the documents, including the laws relating to general principles concept of good governance in Central Library of Legal Documentation of Indonesia National Law Development Agency (BPHN) Jakarta and it was continued by investigating websites, especially the BPHN’s website. Meanwhile, for investigating the documents of Dutch Laws, it was conducted through the website namely overheid.nl. This website provides information regarding all laws and regulations in Netherland either the laws and regulations at international, regional, national or local regulations such as provincial regulations or district existing in Netherland. The research was conducted in May to October 2014. In the middle of October 2014, as the research activity was being implemented, the Indonesian government issued a law regulating and admitting the general principles of good governance formally in Law Number 30 Year 2014 concerning Public Administration.
in Indonesia, which is used later as a part of unwritten Administrative Law in Indonesia. Then, it is continued by the discussion of the development of good governance general principles concept in written Administrative Law in Indonesia, and it is finally ended by formal acknowledgment regarding the existence of the government’s general principles in Law Number 30 Year 2014.
B. Discussion
1. Early Period of the Raise of General Principles of Good Governance in Unwritten Administrative Law in Indonesia
a. Period of Introduction of General Principles Concept of Good Governance proposed by Crins De Roy to the End Period of New Order
The general principles concept of good governance in Indonesia has been acknowledged since 1953 through the book written by G.A.van Poelje which was translated by B. Mang Reng Say entitled“General Introduction to Governmental Studies”, but at that time the concern from Administrative Law experts in Indonesia. The general principles concept of good governance start to get attention of the Administrative Law experts in Indonesia when in 1978 an expert in Administrative Law named Crince de Roy explained the concept in Advanced Workshop on State Administrative Law/Governance Law in Faculty of Law, Airlangga University of Surabaya. Crince de Roy proposes 11 general principles of good governance which is translated from algemene beginselen van behoorlijk bestuur and it is commonly accepted in the area of Dutch Administrative Law (SF Marbun, 2001: 166-168). The eleven (11) general principles concept of good governance are:
1) Principle of legal security; 2) Principle of proportionality; 3) Principle of equality; 4) Principle of carefulness; 5) Principle of motivation;
6) Principle of non misure of competence; 7) Principle of fair play;
8) Principle of reasonableness or prohibition of arbritariness; 9) Principle of meeting raised expectation;
action, especially actions which have legal effects consider the expectation raised in society. Principle of undoing the consequences of annulled decision means that toward the decisions made void and annulled by appeal institution or by court, the consequences of the annulled decision must be annulled.
Meanwhile in the Administrative Court in Indonesia, the general principles of the government have been introduced since the presence of Law regarding State Administration Court in 1986. However, the general principles have not been included explicitly.
Although in Indonesia the general concept of good governance was introduced by Crince de Roy in 1978 and accepted by the Indonesian State Administrative experts, the concept has not been included in the laws and regulation or written law in Indonesia. It is understandable in view of Indonesia has ever been under Soeharto Regime. Habibie regime that continue Soeharto regime in 1998 was different, in term of its democratic characteristic.
In 2004, Law Number 5 Year 1986 is amended by the issuance of Law Number 9 Year 2004 regarding Amendment to Law Number 5 Year 1986 concerning State Administration Court. Provision Article 53 paragraph (2) Law Number 9 Year 2004 states that the reasons can be used to file lawsuit to State Administration Court, some of them is the claimed Decision of the State Administration is incompatible with applicable laws and regulations and in contradiction to the general principles of good governance. The Explanation of Article 53 paragraph (2) Law No. 9 Year 2004 states that “general principles of good governance” consists of the following principles: legal certainty, governance orderliness, open management/fair play, proportionality, professionality, and accountability, as referred to Law Number 28 Year 1999 concerning State Implementation of Clean and Free of Corruption, Collusion and Nepotism issued in Habibie Presidency.
Clean and Free from Corruption, Collusion, and Nepotism issued based on the philosophy that can be seen in the considerations of the issuance of the Decision of People’s Consultative Assembly.
Nowadays, there are many concepts of general principles of government explained the legal products of Indonesian local government. Some of the laws and regulations which have included the general principles of good governance are: Law Number 28 Year 1999 concerning State Implementation of Clean and Free from Corruption, Collusion, and Nepotism;; Law Number 25 Year 2009 concerning Implementation of Public Service; and the last, admitting the presence of general principles of good governance in written Administrative Law in Indonesia, i.e. Law Number 30 Year 2014 regarding State Administration issued on October 2014, at the end of Susilo Bambang Yudoyono presidency.
2. Development of General Principles of Governance in Written Administrative Law in Indonesia
a. General Principles of Good Governance in Law Number 28 Year 1999 concerning State Implementation of Clean and Free from Corruption, Collusion, and Nepotism
The general principles of good governance included in provision of Article 3 Law Number 28 Year 1999 concerning State Implementation of Clean and Free from Corruption, Collusion, and Nepotism are:
1) Legal certainty, i.e. the principle in the law state which prioritizes laws and regulations in all aspects or there is pursuance and justice in every policy made by the government;
2) State implementation orderliness, i.e. the principle as the base of orderliness, harmony, and proportionality in state implementation control;
3) Public interest, i.e. prioritize public welfare in an accommodative, and selective manner;
4) Open management, i.e. being open toward society’s right to get correct, honest, and non-discriminative information concerning state implementation by paying attention to the protection of basic right of individual, group, and state’s secrets; 5) Proportionality, i.e prioritizing proportionality between rights and obligations of
the State Actors;
7) Accountability, i.e. determining activity of implementation and final products of the state implementation which must be able to account for it to society or people as the holder of state’s highest sovereignty according to the provisions of applicable laws and regulations.
The concept of general principles of good governance in the Law Number 28 Year 1999 concerning State Implementation of Clean, Free of Corruption, Collusion and Nepotism is presented in the table below.
Table 1
General Principles of Good Governance in Law Number 28 Year 1999 No Formulation of General Principles of Good Governance
1 Principle of legal certainty
2 Principle of governance orderliness 3 Principle of public interest
4 Principle of open management 5 Principle of proportionality 6 Principle of professionalism 7 Principle of accountability
Source: Article 3 Law Number 28 Year 1999
In the provision of articles in Law Number 28 Year 1999, the general principles of good governance is explicitly mentioned in article 3 and explained specifically in other articles. After comparing and analyzing the concept of general principles of good governance proposed by Crince de Roy and developed by Prof. Kuncoro Purbopranoto and that in the Law Number 28 Year 1999, the concept has been developed and it is included as orderliness principle in state implementation.
b. General Principles of Good Governance in Law Number 25 Year 2009 concerning Public Service Implementation
The concept of general principles of good governance is also included in Law Number 25 Year 2009. We can see the concept of general principles of good governance in the provision Article 4 the Law Number 25 Year 2009 or usually known as Public Service Law in the following table.
Table 3
General Principles of Good Governance in Law Number 25 Year 2009
1 Principle of public interest 2 Principle of legal certainty 3 Principle of rights equality
4 Principle of proportionality between rights and duties 5 Principle of professionalism
6 Principle of participation 7 Principle of non-discriminative 8 Principle of open management 9 Principle of accountability
10 Principle of special facility and treatment for susceptible group 11 Principle of punctuality
12 Principle of efficiency, simplicity, and achievability Source: Article 4 Law Number 25 Year 2009
However, let us examine the provision in Article 4 and explanation of Article 4 of this law do not explain the aims of the principle of public service implementation and also the details of the concept of the general principles of governance referred to in the Law Number 25 Year 2009. The concept of general principles of good governance in Public Service Law does not only apply for state administration apparatus, but must be implemented by the implementer of public service such as private corporation other than government. This is intended to give protection for every citizen and population from the misuse of authority in the implementation of public service.
c. General Principles of Good Governance in the Law Number 30 Year 2014 concerning Government Administration
Based on provision of Article 5 Law Number 30 Year 2014, it is stated the government administration (in Indonesia) is implemented based on: principle of legality, principle of protection toward human rights, and general principles of good governance. The general principles of good governance referred to in Article 10 paragraph (1) consist of: legal certainty, utility, impartiality, carefulness, non misuse of competence, open management, and good service. Meanwhile, the other general principles other than referred to in Article 10 paragraph (1) can be applied as long as it is based on the judge’s decision included in permanent Court Decision.
Below is the formulation of general principles of good governance in the Law Number 30 Year 2014.
Table 4
General Principles of Good Governance in Law Number 30 Year 2014
No Formulation of Concept of General Principles of Good Governance 1 Principle of legal certainty
2 Principle of utility 3 Principle of impartiality 4 Principle of carefulness
5 Principle of non-misuse of competence 6 Principle of open management
7 Principle of public interest 8 Principle of good service
9 Other general principles as long as have been the foundation for the judge and included in the Court’s decree which have legal power.
Source: Article 10 paragraph (1) and (2) Law Number 30 Year 2014
The “legal certainty principle” is defined as the principle in the law state which prioritizes the foundation of laws and regulations provisions, appropriateness, stability, and justice in every government implementation. Meanwhile, “the principle of utility” is the utility that must be concerned proportionally among: (1) an individual interest and another individual interest; (2) individual interest and society; (3) society interest and foreign interest; (4) a group interest and another group interest; (5) government interest and society interest; (6) present generation and next generation; (7) human and the ecosystem; and (8) men and women.
the determination and/or implementation of the decision and/or action so that the decision and/or the action of the people concerned is prepared carefully before the decision and/or action is made and/or done.
The meaning of “the principle of non misuse of competence” is the principle that obliges every Board and/or Government Official not to use their authorities for private interest or other interest which is not according to the purpose of the authority giving, not to get over, misuse, and or not mix the authorities. The “principle of open management” is the principle that serves society to get access and information that is correct, fair, and non-discriminative in the implementation of government by concerning the protection of personal rights, group, and state secret. “The principle of public interest” is the principle of prioritizing public prosperity and utility in an accommodative way, selectively, and non-discriminative way. Meanwhile, “the principle of good services” is the principle of giving services on time with clear procedure and cost according to standards of service and provisions of laws and regulations. Finally, “other general principles other than General Principles of Good Governance” are those derived from the court decision which there is no appeal in District Court or Supreme Court.
If we compare with the norm formulation of generative principles of good governance in various laws and regulation mentioned previously, it can be seen that the formulation in the Government Administrative Law is formulated in enumerative way (unlimited) while the formulation in other laws is limitative. It is shown in the provision of Article 10 paragraph (2) that acknowledges the presence of other general principles other than those formulated in Article 10 paragraph (1) can be implemented as long as it is applied by the judge in the making of permanent court decision.
C. Closing 1. Conclusion
The introduction and discussion bring this writing to the following conclusion: First, the concept of general principles of good governance in the Indonesian Administrative Law has developed. Initially, it is the part of unwritten law. Later, it develops to be the part of written Administrative Law and in 2014 it has been developed formally in the Government Administrative Act;
law and regulation is determined in limitative way, but then in the Government Administrative Act, the government does not limit it and it is included in enumerative way. However, there is still a limitation in the statement that the other general principles of good governance are acknowledged as long as they have been implemented by the judge as they exist in the permanent decision of the court.
2. Suggestion
Based on the explanation previously, with regard to the concept of general principle of good governance belongs to the concept that always develops in the society, the formulation of that concept in the written State Administrative Law in Indonesia is not limitative or definitive, but numerative ones so that there are opportunities to develop values existing in the society to be the concept of general principles of good governance.
References
Henk Addink, Gordon Anthony, Antoine Buyse & Cees Flinterman, 2010. Sourcebook Human Rights & Good Governance, Utrecht: SIM Special No. 34 Herlambang Perdana Wiratraman. 2006. Good governance and Legal Reform in Indonesia. Faculty of Graduate Studies, Mahidol University
---. Hurizal Chan, dkk. 2000. Laporan Akhir Tim Naskah Akademis Peraturan Perundang-undangan RUU tentang Tata Administrasi Pemerintahan Negara. Jakarta: BPHN Department of Law and Legislation RI Safri Nugraha, et.al, 2006. Perencanaan Pembangunan Hukum Nasional (PPHN) Bidang Hukum Administrasi Negara. Jakarta: National Law Development Agency of the Ministry of Law and Human Rights
Safri Nugraha, et.al, 2007. Laporan Akhir Tim Kompendium Bidang Hukum Pemerintahan yang Baik. Jakarta: National Legal Development Agency of the Ministry of Law and Human Rights
SF. Marbun. 2001. Eksistensi Asas-asas Umum Pemerintahan Yang Layak Dalam Menjelmakan Pemerintahan Yang Baik dan Bersih Di Indonesia, Dessertaion. Bandung: Post Graduate Program of UNPAD
Republic of Indonesia. The Decree of the Republic of Indonesia's Consultative Assembly (TAP MPR) No. No. XI / MPR / 1998 regarding the implementation of clean government
Republic of Indonesia. Law No. 5 Year 1986 concerning State Administrative Court
Republic of Indonesia. Law No. 9 of 2004 on the Amendment of Law No. 5 Year 1986 concerning State Administrative Court.
Republic of Indonesia. Law No. 25 of 2009 on Public Service
Republic of Indonesia. 2012. Law No. 30 of 2014 on Government Administration.
Curriculum Vitae of the first’s author:
Eny Kusdarini is an alumnus of Faculty of Law, Gajah Mada University. She is a lecturer at Legal and Civic Education Department. She teaches the core course of Public Administration Law.
Curriculum Vitae of the second’s author
Setiati Widihastuti is a lecturer at Legal and Civic Education Department. She teaches the core course of Civil Law.
Curriculum Vitae of the third’s author
