The Recommendation Position of the Ombudsman as an Independent

Supervisory Agency for the Implementation of Public Services in Indonesia

Habib Muhsin Syafingi1*, Dyah Adriantini Sintha Dewi2, Suharso3,
Wafda vivid izziyana4
1234
Universitas Muhammadiyah Magelang, Magelango, Indonesia
*
Corresponding author. Email: izziyanawafda@gmail.com

ABSTRACT
The provisions of the rules in the Public Service, affirms that if a dispute occurs due to public services,
it can be resolved through the Ombudsman, the results of the Ombudsman's examination are in the
form of recommendations, because the decision has value as a recommendation. Then in accordance
with the applicable provisions, further legal action may be taken. So this research examines how the
position of the ombudsman's recommendations as an independent supervisory agency for the
implementation of public services in Indonesia. This study uses a normative juridical method to
examine the position of the Ombudsman's recommendations with regulations, legal principles, legal
theories and other literature as well as document studies. The results of this research are describe the
function of the Ombudsman is to supervise the implementation of public services organized by State
Administrators and government both at the center and in the regions including those held by State-
Owned Enterprises, Regional-Owned Enterprises, and State-Owned Legal Entities as well as private
entities or individuals who are given task of administering certain public. This means that the
Ombudsman is a supervisory agency for the implementation of public services, and the function of
dispute resolution. The process of resolving public service disputes by the Ombudsman is carried out
through Mediation and Adjudication, so as to produce recommendations, it is necessary to understand
that the Ombudsman is not a court forum. The binding power of the Ombudsman's recommendation is
not the same as the Court's decision. Although the procedures starting from the existence of a report to
the issuance of the Ombudsman's recommendation are almost the same as court decisions, sanctions
for the Reported Party and the Reported Party's superior who do not implement the recommendations
will be subject to administrative sanctions. Based on this, it is necessary to analyze the implications of
the Ombudsman's authority, the position of the Ombudsman's recommendations, which are mandatory
and describe what kind of binding definition is based on the rule of law in Indonesia.
Key words: Recommendation, Ombudsman, Public Services

1. Introduction
A sovereign state needs an institution that functions as a supervisor of public services, because
it is impossible for the government to be able to supervise itself. Supervision of services conducted
and held by the state and government is an important element in efforts to create good, clean and
efficient government as well as an implementation of democratic principles that need to be developed
and applied in order to prevent and eliminate abuse of authority by state and government officials. [1]
Indonesia adheres to a trias politica system dividing power into the legislature, judiciary and
executive. The Ombudsman does not have jurisdiction over the legislative and judicial branches of
power, but has the authority to investigate public complaints against the executive branch in general,
the ombudsman institution deals with public complaints about maladministration carried out by
government administering institutions to conduct an objective investigation of public complaints
regarding government administration. Often the Ombudsman has the authority to take the initiative
to carry out investigations even without complaints from the public, this is a manifestation of the
understanding adopted by the Indonesian Ombudsman, namely adopting a proactive Ombudsman
system, this is considered important because the Ombudsman as the supervisor of public policy can
always monitor acts of maladministration which is conducted by state officials and government. [2]
 From the above, the state tries to respond by creating an independent institution that is
independent in nature, and does not have organic relations with state institutions and other
government agencies, and in carrying out its duties and authorities it is free from interference from
other powers. So on March 10, 2000, the National Ombudsman Commission was formed through
Presidential Decree No. 44 of 2000. The purpose of the establishment of the National Ombudsman
Commission is, to help create and or develop conducive conditions in carrying out the eradication of
Corruption, Collusion and Nepotism through community participation. [3]
Article 38 of Law Number 37 of 2008 concerning the Ombudsman of the Republic of Indonesia
regulates the obligation to carry out recommendations for the Reported Party and the Reported Party's
Superior. As for the Reported Party or the Reported Party's superior who does not comply with these
provisions, will be subject to administrative sanctions other than previously published and reported to
the House of Representatives and the President.
The Ombudsman recommendation is one of the powers granted by law to the Ombudsman of
the Republic of Indonesia in order to resolve public complaints regarding the occurrence of
maladministration in public services. Recommendations are given after the process of requesting
clarification, field investigations, mediation/conciliation, up to submitting the Final Research Result
Report (LAHP) regarding maladministration and for that a correction or improvement is needed by the
Reported Party and the Reported Party's Superior, but has not yet obtained a settlement. The
recommendations issued by the Ombudsman since the enactment of Law Number 37 of 2008
concerning the Ombudsman of the Republic of Indonesia, are different from the recommendations
issued during the validity period of Presidential Decree Number 44 of 2000 concerning the
Establishment of the National Ombudsman Commission. [4]
The position of recommendations based on Law Number 37 of 2008 concerning the
Ombudsman of the Republic of Indonesia is not just an ordinary suggestion, but brings legal
consequences for the Reported Party and the Reported Party's superiors who do not comply.
Similarly, the recommendation is only the authority of the Ombudsman member to issue it,
which consists of 1 (one) Chairman concurrently a member, 1 (one) Deputy Chair concurrently a
member and 7 (seven) members. Ombudsman of the Republic of Indonesia Representatives in each
province do not have the authority to issue recommendations.

2. Method
This study uses a normative juridical method[6] with an approach to the rule of law, legal
principles and legal systematics in describing the position of the ombudsman's recommendations as an
independent supervisory agency for the implementation of public services in Indonesia.

3. Discussion
Recommendation is defined as a suggestion (suggestion), but sometimes it can also mean
advice. The recommendation relationship with the duties and authorities of the Ombudsman is as
advice or advice to government officials or state administrators about what must be done to improve
services that are complained of by the community, both case by case and systemic. The Ombudsman's
recommendations relate to his duties as supervisors of public services established by law to improve
good governance and create a conducive environment for services in the form of a fair law, including
eradicating and preventing KKN behavior. [7]
The Ombudsman provides recommendations to the reported agency after conducting an
intensive examination and obtaining findings or evidence related to the occurrence of
maladministration. Recommendations made by the Ombudsman, contain a brief description of the
report, a description of the results of the examination, elements of maladministration that occurred
and the conclusions and opinions of the Ombudsman on matters that need to be carried out by the
Reported Party and/or the Reported Party's superior. [8]
The recommendation is submitted to the Reporting Party, the Reported Party, and the Reported
Party's superiors within no later than 14 (fourteen) days from the date the recommendation is signed
by the Chief Ombudsman. Then the Reported Party's superior is obliged to submit a report to the
Ombudsman regarding the implementation of the recommendations that have been carried out along
with the results of the examination within no later than 60 (sixty) days from the date of receipt of the
recommendations. [9]
If the Reported Party and the Reported Party's superiors do not implement the
recommendations or only partially implement the recommendations for reasons that are
unacceptable to the Ombudsman, the Ombudsman may publish the Reported Party's superiors who
do not implement the recommendations and submit a report to the House of Representatives and the
President. The Reported Party and the Reported Party's superiors who violate the provisions as
referred to in Article 38 paragraph (1), paragraph (2), or paragraph (4) of Law Number 37 of 2008
concerning the Ombudsman of the Republic of Indonesia shall be subject to administrative sanctions
in accordance with the provisions of the legislation. [10]
Before the Ombudsman issues a recommendation, the incoming report must first be examined.
After the examination is carried out the Ombudsman can determine the results of the substantive
examination whether the Ombudsman is authorized to continue the examination or not. the number
of recommendations issued by the Ombudsman of the Republic of Indonesia is also not too much.
This can be seen in the following table:
Table. 1

The Number of Implementation of the Ombudsman

Recommendation the Republic of Indonesia Years 2014 -
2018

29,41%
35,29%

35,29%

Implemented Partially Implemented Not Implemented

Source: 2019 ORI Annual Report

Based on the data above, not 100% of government agencies have implemented the
Ombudsman's recommendations, as an effort to improve public services.
 Table.2

The Number of Ombudsman Recommendations 2015-2020

10
9
8
7
6
5
4
3
2
1
0
2015 2016 2017 2018 2019 2020

Table. 3

The Number of Implementation of the Ombudsman

Recomendation the Republic of Indonesia Years 2015-2020

Monitoring Process
Not Implemented
Implemented

0,00% 10,00% 20,00% 30,00% 40,00% 50,00% 60,00% 70,00%

Series 1

Source: www.ombudsman.go.id

In examining the Report, the Ombudsman must be guided by the principles of being
independent, non-discriminatory, impartial, and free of charge. In article 30 of Law no. 37 of 2008
also stipulates that the Ombudsman in conducting examinations is obliged to maintain confidentiality,
except for the public interest.
After receiving the report and then conducting an examination, the Ombudsman can issue the
results of the examination in the form of:

1. Reject the report; or

2. Receive Reports and provide Recommendations. In the case of examination of the report of the
Chairperson, Deputy Chairperson, and members of the Ombudsman, they are prohibited from
participating in examining a report or information that contains or may cause a conflict of interest
with him.
Obstacles faced by the Ombudsman in implementing recommendations, including: the weak of
the rules which is governing about the implementation of Ombudsman recommendations, the low
level of awareness of state and government officials in complying with recommendations from the
Ombudsman, and Ombudsman not being an executive institution.
 Law Number 37 of 2008 concerning the Ombudsman of the Republic of Indonesia states that
the Reported Party and the Reported Party's superiors who do not implement the Ombudsman's
recommendations will be given administrative sanctions, the unclear sanctions given to state and
government officials is the reason why state officials do not comply with the Ombudsman's
recommendations, the Ombudsman is only able to provide recommendations which are only
conclusions, opinions, and suggestions without being able to carry out execution of the results of the
examination or investigation carried out, only state officials and the government itself are able to
execute recommendations from the ombudsman.

4. Conclusion
The Ombudsman Institution is an independent state institution, in carrying out its duties and
authorities the Ombudsman Institution is free from other interference. The Ombudsman in carrying out
his duties and authorities is based on decency, fairness, non-discrimination, impartiality,
accountability, balance, openness and confidentiality. The implementation of the Ombudsman's
recommendations is still far from expectations. So far, there are still many state and government
administrators who do not comply with the recommendations of the Ombudsman. The Ombudsman is
not capable of being the executor in the implementation of the recommendations issued. In addition,
the level of awareness of state and government officials in complying with the recommendations of
the Ombudsman is still low, the rules regarding the implementation of the Ombudsman's
recommendations must be reformulated so that the recommendations of the Ombudsman become
declaratory or condemnatory decisions.
References
[1] Asmara Galang.2012.Ombudsman Republik Indonesia Dalam Sistem Ketatanegaraan Republik
Indonesia ,(Jakarta,Mandar Pers) p 2
[2] Antonius Sujata dan RM Surachman, 2002, Ombudsman Indonesia di Tengah Ombudsman
Internasional sebuah Antologi, (Jakarta, Komisi Ombudsman Nasional) p 202
[3]Imron Rizki A, 2018, Analisis Pelaksanaan Rekomendasi Ombudsman Sebagai Instrumen
Pengawas Kebijakan Publik, Jurnal Al-Adalah, Vol.3 Nomor I, Januari, p 46
[4]Jimly Asshiddiqie, 2012, Perkembangan dan Konsolidasi Lembaga Pasca Reformasi, (Jakarta,Sinar
Grafika) p 24
[5]Ridwan HR, 2013, Hukum Administrasi Negara, (Yogyakarta,Rajawali Pers) p 13
[6]Sri Mamudji, 2018,Penelitian Hukum Normatif : Suatu Tinjauan Singkat, (Jakarta: PT.
RajaGrafindo Persada) p 14
[7]Munir Fuady. 2011. Teori Negara Hukum Modern (Rechtstaat), (Bandung , RefikaAditama,) p 7
[8]Nikmatul Huda. 2015, Hukum Tata Negara Indonesia, (Jakarta,Raja Grafindo Persada), p 35
[9]Sedarmayanti 2013, Restrukturisasi dan pemberdayaan organisasi menghadapi dinamika
perubahan, (Bandung,Mandarmaju) p 3
[10] Jimly Asshiddiqie, 1997, Agenda Pembangunan hukum di abad Globalisasi, (Jakarta,
Balaipustaka) p58