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

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.

Stufenbau der Nawiasky

Staatsfundamentaln orm

Verordnungen/ Autonome

Satszungen

Staatsgrundgesetz

Formelle Gesetz

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

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 his/her consent; and,

2. 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),

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

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

De Monchy’s GG

 Legal certainty  Balance

 Equality

 Carefulness  Fairness

 Justice

 Protection to

Outlook on Life

 Consideration

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

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.

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 e

Public

Double-sided One-sided

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

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

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

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

 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

applicability.