Administrative Authority, Action and Decision

1. Administrative Authority, Action and Decision Eka Sri Sunarti Administrative Law Bachelor Program International Class Spring Semester 2012 Faculty of Law-UI

2. Administrative Authority An official, in occupying administrative office, should be vested with legitimate authority according to prevailing laws, by ways of… • Attribution • Delegation • Mandate An authority is always bound to… • Period or time-frame • Scope or subject matters • Place or territory Faculty of Law-UI

3. Types of Authority • Attribution is granting of a new authority to an administrative official by law in order to conduct administration in full capacity • Delegation is partial transfer of authority originating from attributive authority to an administrative official • 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 Faculty of Law-UI

4. 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 officials. • 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. Faculty of Law-UI

5. StufenbauderNawiasky Staatsfundamentalnorm Staatsgrundgesetz FormelleGesetz Verordnungen/ AutonomeSatszungen Faculty of Law-UI

6. 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 Faculty of Law-UI

7. To Avoid Abuse of Power • Public authority grants its holder two kinds of extraordinary powers i.e. • Prealable Authority. The authority to take actions and decisions without consulting any third party or asking for his/her consent; and, • Ex officio Authority. The authority to take actions and decisions due to one's office, uncontestable by others • These authority shall be exercised according to prevailing laws and regulations, or else there will be abuse of power. Faculty of Law-UI

8. 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 (freiesermessen, pouvoirdiscretionnaire) - based upon own (wise) judgment and consideration • according to… Proper/Good Governance (GG), General Principles of (algemenebeginselen van behoorlijkbestuur) Faculty of Law-UI

9. AlgemeneBeginselen van BehoorlijkBestuur • provides basis and ethical nuance in legal system —Paul Scholten • serves as basic norms and standards for administrative officials in adopting public policy — Bellefroid • gives direction while taking actions and decisions in the exercise of administrative power —Konijnenbelt Faculty of Law-UI

10. 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 codified in Algemene Wet Bestuurrecht; Awb 1994 (General Administrative Law Act; GALA) Faculty of Law-UI

11. De Monchy’s GG • Legal certainty • Balance • Equality • Carefulness • Fairness • Justice • Protection to Outlook on Life • Consideration • Exercise of Public Interest • Honesty • Impartiality • Respect to others' opinion • accountability Faculty of Law-UI

12. Functions of GG • Guidance for administrative officials 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. Faculty of Law-UI

13. 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 official. Faculty of Law-UI

14. 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 Faculty of Law-UI

15. 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. Faculty of Law-UI

16. Administrative Legal Action Private Public One-sided Double-sided Decision Regulation Faculty of Law-UI

17. 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/officials and private contractors (public-private partnership?) Faculty of Law-UI

18. One-sided Public Legal Action • is basically unilateral actions taken and implemented by government bodies/officials based on extraordinary authority. • hence, there are 4 (four) elements i.e. • unilateral; • pertaining to administrative matters; • taken and implemented by government bodies/officials; and, • based on extraordinary authority. Faculty of Law-UI

19. Regulation (Regeringsbesluit) • Public. Applies to general public i.e. everyone • Abstract. subject matters are of a general nature. • Continual. in effect continually (dauerhaftig). • Examples: all implementing regulations/ autonomous administrative regulations Faculty of Law-UI

20. Decision (Beschikking) • Individual. applies to certain individuals/ persons only i.e. identities are clearly stated. • Concrete. pertaining to specific subject matters. • One-off. applies and finished at the time it is decided (einmalig). • Examples • Legislative realm: Law on Budget, Ratification • Judicial realm: Judge's decisions/ verdicts • Administrative realm: decrees Faculty of Law-UI

21. Classification ofAdministrative 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. Faculty of Law-UI

22. Validity Requirements • Decisions adopted and/or passed by authorized body/official 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. Faculty of Law-UI

23. 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. Faculty of Law-UI

24. Prayudi’s Categories of Decision • Negative Decision. Rejection of applications from the public due to failure in fulfilling 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. Faculty of Law-UI

25. 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. Faculty of Law-UI