PRINCIPLES OF ADMINISTRATIVE LAW CLASS WEEKLY ASSIGNMENT

FIRST MEETING:
“ADMINISTRATIVE LAW AND STATE POWERS”
LECTURER’S NOTES AND CLASS REVIEW

Arranged by Group 3
Asina Grace Ofelia (2006490005)
Audrey Florence (2006489174)
Dita Sevira Rachmah (2006489262)
Farah Fadhila Alfani (2006490043)
Ray Hans Surjadinata (2006489836)

FACULTY OF LAW
INTERNATIONAL CLASS
UNIVERSITAS INDONESIA
2021

1. INTRODUCTION
 Administrative law and state power are inextricably linked. We must first
understand the concept of administrative before we can investigate State powers.
Administrative law is a branch of law that deals with the government's administrative
power. Because state interference is done through the law, this type of law is particularly
essential. There is a legal or regulatory obesity since everything we do is governed by
government laws.

2. ABSOLUTE MONARCHIES
Moving on to state power, this character of power has been seen since the age of
absolute monarchies, when the king ruled everything within their kingdom, including the
use of their human resources. Many scholars argue that this type of power exists because
there is no separation of powers among rulers. As a result, rulers would abuse their power
solely for their own benefit. Many people had suffered as a result of this, making them
revolt against the king's absolute power.
The first revolution took place in 1566, when the Dutch resurrected the word
"republic." They delegated sovereignty from the king's absolute power to a parliamentary
representation. This was done to ensure that the monarch's decisions were not arbitrary
and to deprive the king of his influence in the Netherlands. The second significant
revolution occurred in 1776, during the American Revolutionary War, when the political
system began to recognize or assert human rights. They highlight that power should be in
the hands of human rights, and they place John Locke's ideas into context inside their
system.
Moving on to the third significant revolution, the people of France revolutionized
in 1789, stating that the government should focus on citizens' equality of rights and
obligations. This campaign resulted in the eradication of social class distinctions between
nobles and commoners, allowing all citizens to be treated equally. In 1917, Russia had
one of its last significant revolutions, with the goal of restoring social fairness to the
country. The last power shift occurred after World War II, when Indonesia declared
independence from Dutch colonialism. During this revolution, they define and affirm all
prior revolutions' ideas, as well as adding monotheistic to their state philosophy,
Pancasila.
3. CONSTITUTIONAL MONARCHIES
The end of Absolute Monarchies paved the way for Constitutional Monarchies. The idea
of Constitutional Monarchies is that there should be separation of power within the State. As a
matter of a fact, this was the common practice of the European State in the 19th century in which
they separate the body or institutions of the State into three separated powers, such as Legislative
Power which was then passed to the congress, Executive Power to the president, and Judicial
Power to the court. If a State doesn’t separate these powers, at the least they separate it into three
functions. What can be seen here is considered to be an act against the term “l’etat c’est moi”,
which means “the state is me” that was used during the era of Absolute Monarchy, to the concept
of Rechtsstaat or the Rule of Law.
In absolute monarchy, the state is considered to be equal to the sovereign. Therefore, the
term “Sovereignty of the State” was used where it refers to the king or queen of the state. But in
Constitutional Monarchies, the state is no longer equal to the sovereign. The state is now
considered as equal to the constitution or as we call it “Leges Fundamentalis”. So it can be said
that it is not the state that is sovereign, but the law or as we call it as “Sovereignty of The Law”.
From this, we can conclude that there are two ideas that remain. First is that there was a
concept of Sovereignty of The State, but it must be replaced with the concept of Sovereignty of
the Law instead. This conclusion has resulted in the emergence of a problem or a question. The
law itself is made by the state, thus it is not natural or made by god, instead a product of mankind.
Therefore, if the law is made by the state, then which one is sovereign?

4. RECHTSSTAAT
The separation of power does not solve the problem of Absolute Monarchies. There are
some confusions of where the place of the term sovereign lies; whether it is on the State or the
law itself. This problem is then only solved to some extent by the idea of Rechtsstaat or Rule of
Law concept. Which explains that the sovereign still lies with the State, but only if it is based on
the law. In a way, it is acknowledged that law was made by the state, but the state must also
voluntarily make itself as the subject of the law.
It must be understood that A. V. Dicey and J. Stahl didn’t create any theories. Instead,
what they did was that they observed the practices of the State governance during the 19th
century. Later on, A. V. Dicey came to the conclusion in which the practice of governance in
England was characterized into three points. After England was no longer a state that implements
Absolute Monarchy, the government was characterized by supremacy of law, equality before the
 law, and due process of the law. Meaning there will be no apprehension, detention, or
imprisonment without the clear procedure as prescribed by the law. Every citizen whether they
come from a noble background, commoner, or workers are seen as equal before the law.
Meanwhile, J. Stahl had observed the practice in continental countries, such as Germany,
Netherland, France, etc. and came to the conclusion that the era of Rechstaat in these countries
was characterized into four points. First is that these countries mutually believed and upheld the
concept of human rights, separation of power to some extent, wetmatigheid van bestuur or
government based on law, and administrative judiciary. Where within the administrative judiciary
there is a general court and there is an administrative court.

5. NACHTWACHTER STAAT
Along with abolition of the absolute monarchies, the state was then met with its
replacement, which is liberal democracies. Liberal democracies act as the reaction or
antithese from the condition that the state experienced during absolute monarchies.
During absolute monarchies, the ruler has a big role. The government dominantly
executes the needs of the people. However, the bourjois wanted the government to not
meddle in the people's freedom to look for prosperity. To support this, the freedom to
look for prosperity must then be guaranteed by the law as a form of human rights
protection.
In a liberal state, due to the people's activeness in seeking prosperity, the
government's role then shifted into protecting and preserving the security and order. This
form of state is then known as Nacthwachter Staat or Nightwatchman State. Referring to
the previously stated fact, the people's freedom is guaranteed by the law and their human
rights are protected. Therefore, the government, specifically the executive power of the
state, can only act based on the law, which is made by the legislative power.
The Nachtwachter Staat form can be seen in Anglo-Saxon countries. Before the
law, the citizens, the government, and the state are seen as equals with the judiciary
power as the most active and prominent branch. On the other hand, the more passive role
is held by the executive power of the state. This is due to the fact that the government
acts as the nightwatcher, which means that the state only takes action when there is a
"fire" or when needed.
 However, there is a downside to the Nachwachter Staat form, which is the
expensive state business. To pass the law, it takes a large sum of money, which means
only the wealthy can afford to do so. Accordingly, the legislative bodies themselves are
dominated by the wealthy. This results with the rich only acting according to their self-
interest which then leads to the poor's needs to be neglected.

6. WELFARE STATE
Unlike how the Nachtwachter Staat demands the state to be more passive, the
welfare state surfaced due to the misery of the common people which demands a more
active role of the state. This state form prioritized the welfare of the people as the main
objective, hence the name Welfare State. To achieve this purpose, the state can take
actions that are not based on the law as long as it is done for the sake of society's welfare.
These actions are tasked to the executive power. However, it must be noted that the
executive power exists to execute the law. Considering the fact that the welfare state
allows the government, specifically the executive power, to take actions that are not
based on the law, a new name is then required. This name is known as the administrative
power of the state.
The welfare state is still democratic in a material and substantial sense. However,
it is not as formal and procedural as the liberal era. Whereas the people in liberal
democracy are free from government intervention, in the welfare state, the government
can intervene with the purpose of social welfare.

7. CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW

Constitutional law and administrative law are well interconnected, but both are
different. Constitutional law concerns the structure of government. It studies the entire
government system, scope and limitations, powers of the legislative and executive
houses. On the other hand, administrative law concerns power, functions, and the details
of the administrative authorities' operation. Therefore, constitutional law or staatsrecht
possesses a broader scope than administrative law. Constitutional law was a more
dominant law during the liberal democracy era. Its purpose was to limit the state’s power
to prevent impediments to the people’s freedom. Along the way, administrative law was
 established to protect citizens from abuse of power by the government and create social
welfare. Administrative law's inception occurred after the Nachwachter Staat when the
welfare state emerged, allowing the government to meddle for social welfare. The
government’s meddle actions need a clear base law so the government does not turn into
an authoritarian. Thus, administrative law was established.
Both constitutional law and administrative law are still present at this very
moment. There are theories called red light, green light, and amber light theories to help
comprehend constitutional law and administrative law. Red light theory is a conservative
theory and is control-oriented. The law is deemed as an autonomous discipline that has an
important control function. This theory seeks to limit. Green light theory is a more liberal
theory or social-oriented. This theory believes that a state’s government would never
commit unlawful actions, which enables the government’s power. Amber light theory
believes there should be a balance between external and internal controlling mechanisms
for an effective public administration. This theory brings a middle point between red and
green light theories.

8. INDONESIA
Based on the provisions of Article 1 paragraph (3) of the 1945 Constitution of the
Republic of Indonesia, "The State of Indonesia is a state of law". Based on the objectives
stated in the 1945 Constitution of the Republic of Indonesia in the fourth paragraph,
Indonesia has 5 objectives which read:
1. Protecting the entire Indonesian nation and the entire homeland of Indonesia.
2. Advancing public welfare.
3. Educating the nation's life.
4. Implementing world order based on independence.
5. Eternal peace and social justice.
It can be concluded that the goals of the Republic of Indonesia are the goals of
protection, welfare, intelligence and peace. The Indonesian nation also have five basic
principles which are the philosophical basis of the state. The five philosophies are:
1. God Almighty.
2. Just and civilized humanity.
 3. The unity of Indonesia.
4. Democracy led by wisdom in deliberation/representation.
5. Social justice for all the people of Indonesia.

9. INDONESIAN CONSTITUTION
The constitution is the highest basic rule or law that is used as a guide within the
implementation of the govt of a rustic. relating the web site of the People's informative
Assembly (MPR), there are two varieties of constitutions, written and unwritten. Almost
all countries within the world have written constitutions or basic laws (UUD) that
regulate the formation, division of authority, and also the workings of state
establishments, as well as the protection of human rights.
Indonesia is additionally a rustic that applies a written constitution within the
lifetime of society and also the state. this is often expressed within the Constitution. In
the preparation of a written constitution, basic values and norms in society and also the
apply of state administration influence the formulation of the text of the Constitution. In
the preparation of a written constitution, basic values and norms in society and also the
apply of state administration influence the formulation of the text of the Constitution.
One country and another have completely different constitutional aims and objectives.
however broadly, the constitution is formed to limit the authority and political power
which will damage the individuals and also the state further as a guarantee of the rights
and obligations of voters.