Administrative law

07 March 2022 6:36

Public law r elating to State and public interests - activities of daily administration
(administrative law or state administration)

Administrative law is a branch of public law and also a part of constitutional law
that consist of specific or technical regulations. These regulations would eventually
regulate the government apparatus in carrying out various activities or state tasks
• The power and the implementation of those power of the organs of
government other than legislator & judicator.

1. The Objects of AL: the relationship among gover ans and apparatus/agencies
and individual (citizen)
2. The Subject of AL: all government apparatus (upper to lower levels) who
deliver government administrations includes : President, ministers,
governor, mayor, etc. local authorities, public servants/corporation,
government official.

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LAW OF STATE ADMINISTRATION
14 March 2022 7:08

Bestuursrecth - Administratief Rech

Bestuurs - Government

State administration can be define as a government in a narrow sense.

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Any state policies - to establish the goals of our nation (they are stated in the
preamble of the constitution)

The executive activities is only related to administration (NARROW SENSE)

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PTUN Law Article 1 point 1 - government activities are executive activities only.
(administrative law) - bisa menjawab pertanyaan apa urusan pemerintah.

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Bestur = State Activities - (Regelgeving + rechtspark)
Rechstpraak - judicial power
Pemerintahan pemerintah - melakukan aktifitas keseluruhan dikurangi dengan
legislatif dan kekuasaan

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DIFFERENCE OF HTN AND HAN
17 March 2022 7:21

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Individuals can be define as Civil entities - badan hukum keperdataan (CV,PT) or person like humans

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The law is the source of authority.

HTN create the law, create the organ and then it is functioned by the HAN
In HAN we only focus in the part of HTN which is the executive, and how it exercise its authority.

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The difference is cause by the historical development
The state growth together along with national interest

Our government does not only functioning executive (pelaksana UU) only, but also legislation

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Our government does not only functioning executive (pelaksana UU) only, but also legislation
(lawmaking) function.

Quasi Rechtpark (peradilan semu) - executive do not have a whole judiciary system, only a part of it.
Administrative measure, is a dispute settlement mechanism when we as citizens are going against
government. Is the first measure that can be approach by citizens when they face a dispute against the
government

Why? HAN is governmental action, this action is not only determining law making.

Two actions that government do:

• Factual action
• Legal actions - a lot of actions (creating law, issuing decision, doing some contract, doing some
discretion, doing a legal enforcement)

Government decision not in only one hand of institution. We have a central government and regional
government.
HAN bekerja secara sektoral. What kind of ministry our government have. This difficulties in line with
the need of societies. Indonesia use the term welfare state.

Basic need people need:

1. Food - should establish some regulation related to food
2. Education - regulation - ministry of education
3. Health system - regulation - ministry of health
4. Drugs certification - BPOM

We cannot define a clear scope of administrative law. A huge sector, we can look by what kind of
ministry. All of the ministries are the object.

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Our government created a lot of sectors in order to make regulations. When it is asked what is the
scope of admin law? Simply answer Administrative law is divided into general and specific

Generally: general principles is used by all government generally. Some of the state administration
regulation and legal enforcer of administrative regulation

Specific: we talk about specific sectoral type.

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YES BUT ONLY IN GENERAL ADMINITRATIVE LAW
SECTORALLY, THERE IS NO CODIFIED ADIMINISTRATIVE LAW BECAUSE IT IS AMENDED GENERALLY.

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21 March 2022 7:47

WHAT ARE THE SOURCES OF ADMIN LAW

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04 April 2022 7:09

Expert can have different opinion when they publish a book. For example, plato has change his
perspective in his second book from his first book.

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RULE OF LAW SYSTEM

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Discretionary power implementation may harm the welfare of the citizen

This type of combination is also called prismatic legal system - is the new system created by our
government that combine several legal system.

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GOVERNMENT AUTHORITY
04 April 2022 7:35

Pemerintahan berdasarkan UU
The regulation itself is the source of government authorities.

State administrative body - badan tata usaha negara

The legal action are the manifestation of people's desire - when the legislative enact the law it must
have a n approval from the representative of the people.

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They need authority before conducting legal actions. Because legal actions have legal consequences.

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Attribution is the original way to gain or obtain authority. Atribusi menjadi sumber pembentukan uu
yang baru.

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14 April 2022 7:14

Buying and selling, leasing, making agreements is to support the implementation of government itself.

Government can have agreement with other parties in order to make an agreement to make an
infrastructure. BANFUN GUNA SERAH - BUILD OPERATION TRANSFER

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infrastructure. BANFUN GUNA SERAH - BUILD OPERATION TRANSFER

BOT investor have to use their money to build the infrastructure, and they will operate the
infrastructure, and transfer back to government as government asset.

Action of our government buying, selling, leasing means government is public legal entity and it is in
context of private action. When our government makes decision and regulation is in context of public
law field organization of function

Government is in a position of organization of function when they are making laws and regulations

These 3 is government instrument that can be issued by government as organization of function.

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So somehow in the context of administrative dispute arise, PT, CV, koperasi, Yasyasan become
categorized as government. The party of admnistrative dispute is citizen vs government

Government functions: using government budget, or conduct public services

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GOVERNMENT ACTION
02 June 2022 7:08

Bestuurshandeling
Bestuur - government
Handeling - action

Government action divided into two:

Government ordinary action (feitelijk handeling) - is a government action action which is not arising legal
consequences
Governmeat legal actio (rechhthandeling) - is a government action which is aimed to arise legal
consequences

Gov ordinary - tidakan nyata/biasa

Gov legal action - tindkaan hukum pemerintah

What is legal consequences?

Is the consequences of legal actions against legal subjects
1. The emergence of rights and obligations
2. The elimination of rights and obligations
3. Causing a legal condition
4. Causing a legal relation

It can be government against another government body, nature person, civil legal entity.

SK pengangkatan pns - the administrative decision is the form of legal action.

What is the legal consequences of becoming pns? They have rights and obligation
Rights:
- Salary
- Health care
- Pension
- Diklat
Obligation:
- Serving the country
- Public service
Legal relation between government and PNS
- Hubungan dinas
The elimination of rights and obligation
- SK pemunduran

Government ordinary action can cause legal problem but not legal consequences
Legal problems - unlawful, harm the citizen

Government legal action - actions to cause legal consequences in the government sector
Government administration action - acts of governmental officials to take and/or not to take concrete
actions in the administering the government (art 1 paragraph 8 law no 30/2013 gov admninistration)

Characteristic of governmental legal action

Carried out legal action carried out in the field of public law is always unilateral/one sided legal relation
If government enters into an agreement with another legal subject then the agreement which regulate
such legal action is

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vate law

Government position
Private - they become private legal entity (selling and buying, leasing, agreement/contract) two sided
legal action
Public - government organization/organisasi jabatan (enact regulation/bestuuren, admin decision,
KTUN, Beleids regel/peraturan kebijakan)

1. One sided government legal action (eenzijdige)

2. Arising due to desire of government and no need agreement from parties who accept
consequences of government legal action

When the government issued intruksi, peraturan teknis, surat edaran then it doesn’t need any other
party to be involved

Why gov legal action need to be based on s. Without legal basis governmental action will be categorized
as government action without authority (onbevoegd)

Governor cannot exercise its authority in mayor's region and viceversa.

Larangan Penyalahgunaan Wewenang

Pasal 17 dan 18 UU 30 Tahun 2014 tentang Administrasi Pemerintahan

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INSTRUMENTS OF GOVERNMENT
06 June 2022 7:25

The instruments of government is tool or facilities that used by government to carried out its function
It is consist:
1. Legal instruments/judicial instruments
2. Facilities instruments, such as building, transportation, writing tools, communication tools, etc

As legal subject that carry out bestuur function, government carry out many kind of actions, either
ordinary actions or legal actions
In order to carry out some legal actions, government need legal instruments, they are:
- Regelling (peraturan perundang-undangan)
- Beshikking (keputusan tata usaha)
- Beleidsregel (peraturan kebijakan/policy rule)
- Plans: the form of the plan is regelling
- Permit: the legal form of permit is beshikking
- Private legal instrument (agreement)

REGELLING
The nature of legal norm is determined by 2 things:
1. Addressat: general and individual
2. Object and action: abstract and concrete

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The nature of peraturan perundang undangan is abstract general.

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General comprehensive is addressat universal. The material is universal, harus memiliki sifat yang lentur
(felxible characteristic) the government cannot define is there any incoming obligation. When nadiem
establish gojek, we do not have any regulation that regulates about it. Our government need to make
regulation that has a flexible effect that can achieve far goals or a long term objectives.

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ADMINISTRATION DECISION
09 June 2022 7:13

KTUN can be only issued by the executive

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TYPES OF KTUN
16 June 2022 7:09

Declaratory: birth certificate, buku nikah (akad)

Constitutive: SK pengangkatan pns - as the legal basis as the rising of rights and obligations, and also the
legal basis of a new status, legal relation (hubungan dinas publik)

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Characteristics of governmental decision
1. Request of KTUN - person, individual, community
2. Government
3. Time period - if we found the absence of regulation then we have to refer to these law (Pasal 3 UU
nomor 5 tahun 1986 ttng PTUN and Pasal 53 UU nomor 30 tahun 2014 tentang administrasi
pemerintahan)
4. Absence of government's legal action
5. Consequences - rejected or refusal

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Lex specialist derogat legi generali
Lex superior derogat legi inferiori
Les posterior derogar legi priori

PTUN is for administrative court, AP is more general law. AP and PTUN are both the codification of
general administrative law.

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PERMIT AND PERMISSION
04 July 2022 7:16

DEFINITION OF PERMIT:
Permit is one sided legal action that applies regulation in concrete term based on requirement and
procedures as stipulated by the provisions of laws and regulation. - They have to consider and
requirement or regulation

Permission is approval from the authorities based on laws or regulations to in certain circumstances
deviate from the provisions of the prohibition of laws.

PERMIT
1. Dispensation - is a government action that causes a statutory regulation to be invalid for
something special. Is a decision of an authorized government official as form of approval of the
citizens' request which is an exception to a prohibition. Marriage dispensation. (article 1 point 19
AP law)
2. License - is a permit that gives the right to run a company (article 1 point 19 AP law)
3. Concession is a permit related to a large work in which the public interest is closely involved so
that in fact the work is the duty of the government, but the government given the right to
administer it to a concessionaire who is not government official (pasal 1 angka 21 UU Adpem)

The elements of permit

1. juridical instrument ; KTUN-ADM Decision (ekstern, constitutief, dan begunstigende)
2. Peraturan Perundang-undangan; every permit issued must be based on statutory regulatuions
(principle of legality)
3. Government Organs ; Presiden  Kepala Desa
4. oncrete eventsl permission is issued not to regulate, but to determine a certain/ concrete event.
Therefore, the permit is in the form of a KTUN, not a peraturan perundang-undangan
5. Procedures and requirements; each form of permit is made with a certain procedure, as generally
KTUN.

The Nature of Authority on Permit

In general, the nature of the permit decision is free (discretionary power), in the sense that the
government is given the authority to consider on its own initiative matters realting to permits, for
example considerations regarding:
a) What are the conditions under which a permit may be granted to the applicant
b) How to consider these conditions
c) the juridical consequences that may arise as a result of accepting or refusing a permit are related to
the limitation of the applicable laws and regulations
d) What procedures must be followed or prepared at the time and after the decision is given whether to
accept or reject the issuance of a permit.

Planning/ Hetplan
Planning/ Hetplan is the whole continuous government action, which seeks to realize a certain orderly
situation. The whole is arranged in the format of administrative legal actions, as actions that cause legal
consequences. (Belinfante)
Government planning in a broad sense is defined as the systematic and coordinated preparation and
implementation of policy decisions based on a work plan related to the objectives and means of
implementation (De Haan, et.al.)

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GOOD PRINCIPLES OF GOOD GOVERNANCE
07 July 2022 7:40

Why is there this principle

To control arbitrary action and as legal potection for citizen

Is AUPB writtern norm?

Good dovernance principle is unwritten norm bestuurnorm
We have 2 kinds of bestuurnorm: the written and AUPB

Function of AUPB :
Law making
Guiding principle to implement positive norm and exercising government authority
Legal enforcement - guideline to oversee the government by supervisory agency
The basis of the communitys lawsuit on administrative disputes to the administrative court
The basis of administrative court judges to nullify the KTUN.

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