Definition of terms and Administrative Law. History of the State Administration Law of the Netherlands called Administrative recht or Bestuursrecht which means Environment Authority / Administrative outside of legislative and yudisil.In France called Droit Administrative.In the UK called Administrative Law.In Germany called Verwaltung recht.In Indonesia many terms for this course.
1. E. Utrecht in his book Introduction to the Law on the Administration of the first printed use the term Indonesian administrative law, then the second printing mennggunakan term Indonesian State administrative law, and the third uses the term mold Administrative Law Indonesia.2. Wirjono Prajokodikoro, writing in the legal magazine in 1952, used the term "Administrative Governance".3. Djuial Haesen Koesoemaatmadja in his book Principles of Administrative Law egara, using the term Administrative Law on the grounds in accordance with Law No. Principal Judicial Power. 14, 1970.4. Prajudi Armosudidjo, in prasarannya at the 1972 National Conference on Prapat Persahi use the term State Judicial Administration.5. W.F. Prins in his book Administrative Inhiding in het recht van Indonesia, uses the term, Indonesian State Administrative Law.6. Meeting of Foreign Law Faculty staff throughout Indonesia in March 1973 in Cirebon, sebaiknnya decided to use the term on the grounds Administrative Law Administrative Law broader understanding and development in accordance with the development and progress of the Republic of Indonesia fore.7. Decree of the Minister of Education 1972, Curriculum Guidelines minimal state and private universities, the term receipts. Law Governance (HTP).8. Principal Act No. Judicial Power. 14 in 1970 and No. MPR. Guidelines use the term II/1983 of Administrative Law.9. Ministerial Decree No.. 31 out 1983 on Core curriculum Education Law Degree Program Administrative Law uses the term.
History of Administrative Law (HAN) or the State Administrative Law (Htun) or the Law of Governance (HTP) in the Netherlands united in Constitutional Law called Staats en Administratiefrecht.In 1946 at the University of Amsterdam recently held separate subjects of the State Administration courses in Constitutional Law, and Mr. Vegting as a great teacher who gives courses Administrative Law.In 1948 the University of Amsterdam University of Leiden trail separate from the State Administrative Law Constitutional Law given by Kranenburg. In Indonesia before the second world war in Jakarta Rechtshogeschool given in one course in the Staats en administratiefrecht given by Mr. Logemann until 1941. New in 1946 the University of Indonesia in Jakarta State Administrative Law and Constitutional Law given separately. Constitutional Law was given by Prof. Resink, while the State Administration Law was given by Mr. Prins. Based on the descriptions above it is clear that the State Administration of Legal Studies is a very broad science and continue to develop following the demands of the State / society, so the field is very broad and it digalinyapun beranekan tangfan diverse and government interference in people's lives.
2. Definition of Administrative LawBasically the definition of Administrative Law is very difficult to give a definition that is acceptable to all parties, given the State Administration Law is very broad and constantly evolving in the direction of processing / administration of a State.But as the grip can be given some Seba following definitions:1. Oppen Hein said "Administrative Law is as a combination of binding provisions bodies high and low when the bodies it uses wewenagnya who had given him by Constitutional Law."2. J.H.P. Beltefroid said "Administrative Law is the overall rules on how the tools of government and state agencies and assemblies administrative court is to fulfill his duty."3. Logemann said "Administrative Law is a set of norms that examine the relationship held for the Special Law allows the State administration officials perform their specific tasks."4. De La Bascecoir Anan said "Administrative Law is the set of rules specific to the State because the function / react and regulations that regulate the relations between citizens and the government."5. L.J. Van Apeldoorn said "Administrative Law isoverall rules that should be noted by the proponentspower authorities entrusted with the task of the government. "6. A.A.H. Strungken said "State Law administarsi is aturanaturanwho controlled every branch of activity ruler himself. "7. J.P. Hooykaas said "Law is a State administarsi provisionsregarding intervention equipment and tools dalan Stateprivate environment. "8. Sir. W. Ivor Jennings said "Law is a State administarsilaw relating to the State Administration, the lawdetermine the organizational powers and duties of officialsadministration. "9. Marcel Waline said "The law is the entire State administarsimaster the rules kegiataqn-activity tools equipmentThe equipment is not state law or rulejudiciary to determine the extent and limits of power tools equipmentthe good of the citizens of the community and between the toolsequipment itself, or also the overall rulesconfirmed by the terms of how the bodies of state administration /gain administrative rights and imposes obligationsto the citizens of the community with the tools equipment regulationsfor the purpose of fulfillment of common needs.10. E. Utrecht said "Law is a State administarsi testheld a special legal relationship that allows officialsState governments perform their duties in particular.So there are three traits administarsi State Law:1. Examine the special legal relationship2. The presence of government officials3. Tuigas task-related.11. Prajudi Atmosudirdjo said "Law is a State administarsilaws regarding the operation and control of powersadministration or supervision of the administrative authorities.12. Bachsan Mustafa said "Law is a State administarsijoint positions are formed and arranged terracedgiven the task of doing most of the work in its broadest sense pemerintahawere not submitted to the agencies and legislatures badanbadanjudiciary.
Of the notions above it is clear that the administration of the State law is very broad, multifaceted and wide variety. Government is the steward of the State, the State is the overall administrator of positions within a State has the duty and authority of the State politics and government. Dijalanakan what the government is duty of the State and is the responsibility of the administration tools. It can be concluded that the law is the law regarding administarsi State Government / Executive in the position, tuganya duties, functions and authority as the State Administrator.
3. Scope of State Law administarsiContent and scope of the State according to law administarsi Van Hoven Vallen in his book entitled: Omtrek van het administratiefrecht, giving the scheme of administrative law in the State entirely legal framework as follows:a. Constitutional Law / Staatsrecht include:1. Government / Bestuur2. Judicial / Rechtopraak3. Police / Politie4. Perundang-undangan/Regelingb. Civil Law / Burgerlijkc. Criminal Law / Strafrechtd. State law administarsi / administratief recht which include:1. Government Law / Bestuur recht2. Mel Huku judiciary; iputi:a. Criminal Procedure Lawb. Code of Civil Procedurec. The law of the State Judicial Administration3. Police law4. Law Legislation Process / Regelaarsrecht.
Opinions Van Hoven Vallen is known as "Residue Theory".According to Walther Burckharlt (Switzerland), key areas of Administrative LawState is. :
1. Police lawPolice in the sense that the State administration as a means of preventive nature of such preventive health preformance, bird flu, malaria, supervision in the construction, fire, traffic, traffic trade (Export-Import).
2. Institutional law, the administration shall regulate legal relations in accordance with the task of organizing the people kesejahtreaan missal in education, hospitals, about traffic (sea, air and land), Telkom, state, ZIP, poor maintenance, and so on.
3. Finance Law, the rules of the State finances, eg taxes, customs, circulation of money, the State financing and so on. Prajudi Atmosudirdjo said that the scope of the law is administarsi State:a. Laws of the fundamentals and general principles rather than the State Administration.b. The law on the organization of the State Administration.c. Law concerning the activities of the State Administration juridical.d. The law of the means of the State Administration, especially the State and State financial staffing.e. Administrative Law and the Local Government area is divided into:1. Administrative Law Officer2. Financial Administration Law3. HukumAdministrasi Material4. Administrative Law Corporate Statef. Laws of the State Judicial AdministrationKusumadi Pudjosewojo, divide the key areas that constitute the field HukumTata State or the State Administration Law, which was taken from the Constitution meantime is as follows:a. Law Governanceb. Financial Administration Lawc. Foreign Relations Lawd. State Defence Law and Public Safety
Groups who argued that the Constitutional Law and Administrative Law there is no difference in principle, namely:1. Kranenburg2. Vegting3. Prins
This group berpendapata that Constitutional Law and Administrative Law there is no difference of principle, only the emphasis / focus the discussion of Constitutional Law, the focus is on the basic legal framework of the country, while the Administrative Law is the administration of the State, thus Administrative Law is the law State specific legal procedures.
a.d.1. Kranenburg:There is no difference of principle between Constitutional Law and the Law of the State Administration, the difference only occurs in practice in order to achieve a benefit only. Constitutional law is the law concerning the general structure rather than a state government. While the Administrative Law is the rules that are special.
a.d.2 Mr. PrinsConstitutional Law study the fundamental things that arefoundations of the State. Administrative Law focuses on matters of a technical nature which we are not concerned only important for the specialists.
4. Position and relationship with the State Administrative Law Jurisprudence other.In the systematics of Law, Administrative Law termasukm in public law and is part than in Constitutional law. Judging from history before the 19th century together with the Administrative Law Constitutional Law and the new after the 19th century Administrative Law stands alone as a separate legal disciplines.In the mid-20th century Administrative Law is growing rapidly as a result of the demands of the emergence of the modern legal state (welfarestate) whichpriority to the welfare of the people. Administrative Law as a separate scientific discipline can be seen in the theory of residues of Van Hoven Vallen which divides the whole matter of law it is terperinsi as follows:Law1. Constitutional Law (material)a. Governmentb. Justicec. Police2. Civil Law (material)3. Criminal Law (material)a. Governing Lawb. Law Courts
a. State Administrative Courtb. Code of Civil Procedurec. Criminal Procedure Lawd. State Administrative Law
Science Administrative Law As a separate scientific discipline it must be determined boundaries and connections between science administration Ngara, with several branches of law such as Constitutional Law, Civil Law, Criminal Law and Governance Studies which will be discussed below:1. Relationship with the State Administrative Law Constitutional Law in terms of history that before the 19th century together with the Administrative Law Constitutional Law and the new after the 19th century Administrative Law stands alone.Regarding the line between Constitutional Law and the Law of AdministrationThis country there are two classes of the opinion that:
A. That between Constitutional Law and Administrative Law is no difference in principle, namely:1. Oppen Heim2. Vallen Van Hoven3. Romeign4. Donner5. Logemann
a.d.1. Oppen HeimSaid that the subject is a State Constitutional Law at rest (Strats in rust), which form a Constitutional Law State supplies the tools and give him authority and divide the tasks share the work means the State supplies the high level and low rates. While the State Administrative Law is in motion (Staats is beveging) where the Administrative Law implementing rules that have been established by Constitutional Law at both high and low level.
a.d.2. Vallen Van HovenAdministrative Law is all legal regulations after deducting the substantive laws of the State Administration, Criminal and Civil. Administrative Law is darikebebasan government restrictions in performing their duties. State agencies to obtain the authority of Constitutional Law, and in carrying out the authority of state agencies hasurlah based on Administrative Law.
a.d.3. RomeignConstitutional Law regulates the basics dapipad State, while the State Administration Law of the technical implementation.
a.d.4. DonnerConstitutional Law assign tasks, while the Administrative Law perform the task specified by the Constitutional Law.
a.d.5. LogemannConstitutional Law is a lesson in competence, while the Administrative Law on special legal nexus. Studying Constitutional Law:
1. What positions are there in the makeup of a State2. Who hold positions that3. How is occupied by officials4. The function positions5. Legal authority positions that6. Relations between positions7. Within the limits of state Which organs can do its job.
While studying the properties of Administrative Law and the form of legal consequences that arise due to special legal act performed by officials in performing their duties.
B. Groups who argued that the Constitutional Law and Administrative Law there is no difference in principle, namely:
1. Kranenburg2. Vegting3. Prins
This group berpemdapat that between Constitutional Law and Administrative Law there is no difference of principle, only the emphasis / focus the discussion of Constitutional Law, the focus is on the basic legal framework of the country, while the Administrative Law is the administration of the State, thus an Administrative Law special law of Constitutional Law.
a.d.1. KranenburgNo differences were prinsipilantara Tat State Laws with Administrative Law, the difference is only the case in practice in order to achieve a benefit only. Constitutional law is the law regarding the legal structure rather than a state government. While the Administrative Law is peraturanperaturan a special nature.
a.d.2. PrinsConstitutional Law study the fundamental things that are the underpinnings of State. Administrative Law focuses on matters of a technical nature, which we are not concerned only important for the specialists
CHAPTER IIPublic administration
1. Understanding AdministrationState Administration term comes from the Latin administrate which in Dutch means the same as the mean besturen government functions. Some opinions on the definition of administration 1. J.Wajong: same administrative control or rule (to direct, to manage, bestaken, be wind Voeren or beheren) which is a process that includes:a. Plan and formulate government policies (Formulation of Policy).b. Implement policy set by pemerintahdengan ways:1. preparing the organization to prepare the necessary tools.2. Led the organization in order to achieve goals.2. Prajudi Atmosudirdjo divide the administration:a. Science of public administration which consists of:a. General State Administrationb. Regional Administrative Sciencesc. Special Public Administrationc. Private Public Administration consists of:1. Science Business Administration2. Non-Commercial Administrative Sciences.3. R.D.H. KUSUMAATMADJA: Administration in everyday life Consist two meanings:1. In a narrow sense: the administration is meulis writing activities, record notes in any activities or administration.2. In a broad sense: the administration is an activity to achieve the goals set in advance.
2. State Administration
Understanding the State Administration1. According to UtrechtState administration is the union office (personnel / equipment) under the leadership of the government administration) President and the Ministers) do most of the work of the government (the government's job) is not submitted to the regulatory agencies and the judiciary.Utrecht starting point on Time Theory or Theory of Residues / Atrek Theorie.
3. Prof. Waldo, propose two definitions, namely1. The organization of public administration and management of men and materialist to Achieve the purpose of government. 2. Public administration is the art and science of management is applied to an affair of state. Which means:1. Public administration is a human organization and management of equipment and tools to achieve the goals of the government.2. Public administration is the art and science of management in carrying out the interests of the State. Together with the State Administration of Public Administration, which essentially study the organization and management.3. Dimock and DimeckThe administration of the activities of the State is the State in carrying out political power alone.4. CST Kansil State administration proposed three meanings:
a. As state officials, government officials, or political institutions (state) include organ under the government, from the President, the Minister including the Secretary General, Director General, Inspector General, the Governor, the Regent / Mayor and so on, substantially all of the people who run the state administration.b. As a function or activity as the activity that is taking care of the interests of the State.c. As the process of the implementation of technical legislation or execute laws.
5. Prof. Dr.. Mr. Prajudi A.
Dilakuikan by the State administration are:
1. Plan2. The setting is not the Law3. Governance is serving.4. Police are maintaining discipline and overseeing5. Administrative dispute resolution6. Development in environmental enforcement7. Administrative done oelh government offices.8. Penyelenggraan State efforts, undertaken by the agencies, and enterprises (SOEs and enterprises).
Basis and purpose of the administration is in accordance with the basis and purpose of the administration of the State of Indonesia is in accordance with the basis of the Unitary Republic of Indonesia is the welfare of the people and social justice. For it is in a good state administration required.1. Social participation (participation of the people in the administration.2. Social responsibility (accountability administrator)3. Social support (the support of the people of the state administration)4. Social control (supervision of the activities of the people of the state administration)
4. Sources of Administrative Law
Source of law is anything that causes the rule of law and the rule of law itentukan. Known legal sources of two kinds:
1. Material Sources of LawSource of substantive law is the law that determines the source of the content tu rule of law, and to determine the content of the law is influenced by many factors, namely:a. History, namely the laws / regulations of the past are considered aik can be used as material to make laws and may be enforced as positive law.b. Factors SoiologisThat is the whole society and the institutions that exist in society. Activities that occur within the community can be used as material to make laws in other words according to the sense of community law such as state and public opinion in the social, economic, cultural, religious and psychological.c. Philosophical Fakotor.Which is a measure for determining the rules are fair or not and to what extent the rules obeyed by the people or why people obey the rules.
2. Formal Legal ResourcesThat is the rule of law in terms of form, with a given form through a certain process, then it will apply the general rule and bind all citizens and obeyed by the people. Sources of formal law Administrative Law is:a. Lawb. Habit / practice of law ddministrasi Statec. Yurispudensid. Doctrine / expert opinion
A.D. a. LawLegal rules set forth in the Administrative State Constitution, carried further by of Law. The whole organic regulations are State Law Resources Administration. So the administration of the State is the source of law in accordance with the sort order / hierarchy of legislation of the Republic of Indonesia, as stated in the Law. 10 of 2004, namely:a. Constitution of the Republic of Indonesia Year 1945b. Law / Government Regulation in Lieu of Lawc. Government Regulationd. Presidential Regulatione. Local Regulation
1. Provincial Laws2 Regulation Regency / City3. Perdes / regulation level
Act as a source of law established in certain ways by the competent authority / legislator. Under the Act of 1945 a lot of the issues that will be governed by the Act, for example:1. About Citizenship2. About the terms PembelaanNEgara3. On State Finances4. About Tax5. About Teaching6. About Local Government and others.
Who holds the power to make laws is the House of Representatives (Article 20, Constitution 45). Perpu same material to the substance of the Act. Government regulation is the substance of the substanceto implement the Act. Contains the substance of Presidential Decree ordered artery Act or implementing Government Regulation. artery payload is the whole substance of the law in connection with implementation of regional autonomy and the duty of assistance and accommodate specific local conditions as well as further elaboration of legislation is higher. Substance Village Regulations / Regulations equivalent is the whole matter in the framework of the implementation of village affairs or equivalent as well as further elaboration of laws higher.
A.D. b. Habit / practice of Administrative Law.State administration tools can issue policies to solve concrete problems terjadidiluar of Law. In issuing decisions of an administrative practice of the State in the context of the public interest. State administration tools can act quickly to resolve an issue of public interest in the absence suatuundang reserved.
A.D. c. JurisprudenceThat is the judgment which has the force of law which has remained a source of state administrative law, especially Decisions Administrative Court Judge.
A.D. d. DoctrineOpinions of experts mainly new theories regarding the administration of the State law enforcement can be a source of state administrative law. Pendapar experts are the result of thinking and writing is received by the public and to provide a basis for making policies for the administration of the state.
CHAPTER IIIFIELD THEORIES IN LAW
These theories arise due notice of a system of government of a country that adopted in other words the system of government of a country indicates employment of the State Administration.
1. THEORIES OF ADMINISTRATION STATE LEGAL FIELD
1. This theory emerged in Western Europe in the 14th century and 15 in the system of government is absolute monarchy, where power resides in the hands of the State, namely a king. Pemerintahnnya system is centralized, that all power is in the center or centralized in the hands of the king. State officials are all helpers king, they just do the job and the maid can not take their own initiative in carrying out its functions. So is deconcentration. Raja determines everything, the king who makes the rules, follow the rules, maintain, and at the same time be the judge and others.
2. Theory Dwipraja / Diichotomy / DwitantraIn this theory there are some opinions that:a. Kalsen Hans (Germany):He argued "Die Reine Rechts Theory" is a Mahab injurisprudence called "Flow Vienna" and divide state powerin two areas, namely:1. Legislative power which includes the Law creating function2. Executive powers which include:a. Legislative Poweb. Judicial Power
In very broad executive tasks that implement the Constitution and all laws established by the legislature, and include administrative power and judicial power. Then Hans Kelsen divides power into two administrative areas, namely:1. Political function called Government2. Administrative function
b. Hans NawiaskyDividing the whole power of the State into two parts:
1. Normgebung, ie forming the legal norms2. Normvolischung or executive functions that implement the law, which is further divided into:a. Verwaltung or governmentb. Rechtsplege or justice.
c. A.M. DonnerDivides the powers of government into two groups:
1. Power that determines the duty of the government or the tools or the power that determines political rather than the State.2. KeKkuasaan that organizes tasks ditentukanatau realize the State in pursuit of political goals and tasks of the State.
d. Frank J. Goodnow (American)Dividing the whole power of the government sua preformance parts:
1. Policy making is which determines the duties and power of the State.2. Executing a task that is executing the task and the policy of the State3. Tripaja theory (Trias Politica)
In this theory there are two figures, namely:a. John Locke, the 17th century divide the power of the State into three sections, each of which stands alone and is held by means of its own equipment as well, namely:1. Legislative power is the power to make rules / laws.2. Executive power is the power to carry out ndangundang.3. Kekusaan Federative, that power does not include legislative power and executive power as foreign relations.
b. MontesqueiuDividing the power of the state into three parts, each separated from one another and held by the State supplies the tools are:
1. Legislative power is the power to make regulations.2. Executive power is the power to follow the rules3. Judicial power is the power to try to maintain regulation.4. Praja Chess Theory
2. DUTIES AND FUNCTIONS OF GOVERNMENTGovernance is the legal rules in the government nengatur position, functions and duties as State Administratot. Go round the whole rather than the government offices within a State, which has the duty and authority in the field of State Politics and Government field. Government is duty-duty tasks delegated State or borne by the state government in order to achieve the goal. Other State duties held by the People's Consultative Assembly, the Legislature (Parliament) of the Supreme Court and other high institutions. Duties and functions of the Government are as follows:
1. Government SectorDevelop and enforce a bunch of National Unity and Territorial use authority and power of the State through:- Laws and regulations- Fostering community- Police- Justice
2. State AdministrationThis form of organization of the task or the execution of the will (strategy, policy) as well as government decisions, organize and execute the laws. Also control the situation and condition of the State, to find out what is happening in society.
3. State homekeepingThese problems include, among others, personnel, financial, material, logistical, social security, production, distribution, transport and communications traffic as well as health and others.
4. DevelopmentTata development consists of several state and regional planning, petnetapan peleaksanaan along with its budget. Development planning is done both short term and long term.
5. Environment PreservationRegulate land use environment, environmental protection and environmental sanitation, and so forth.
6. Development of National Culture that exist within society, culture areas need to be developed.7. Business / CommerceBusiness is not a trade, but an activity to serve the needs of the community or the general cleanliness of the city such as offices, hospitals, schools, as well as areas such as state-owned enterprises and state enterprises. Highest in the Indonesian government held by the President (Article 4 of the Constitution 1954).
The central government under President is the Minister and the Director-General under it, then the government hierarchy is a Governor as head of the province.Level I Regional Government (Regional Head and Head of Council of Regency Regent I. Mayor Head of Regional Municipalities. Governance Level II Regional Chief Administrative City Mayor. Head Global Head of Sub. Governance Village (Village Chief and Village Consultative Organization) Village Government.Officials mentioned above is the government in the narrow sense. In the practice of the officials may delegate part of the authority than government to subordinate officials. Every government official is automatically doubled as Administrator, because the government is the head of the State Administrator. The President is the Head of Government of the State and the Administrator of the Republic of Indonesia. Government ministers are serving as Department Head Administrators Departemen.Departemen has three functions:a. Pemerintahah field and general administrationb. Secretariat of the Ministerc. State Aparatue certain matters, the functional units of government organizations.
Director General of Directorate General of Government is serving as Director General of the Administrator. Directorate General has three functions:a. Sub Division of governance and public administrationb. Secretariat of the Drektur Jederalc. Khsusus of Administrative affairs; functional unit of government organizations.
Provincial Governor and the Provincial Government are as Provincial Administrator.Province has four meanings, namely:a. Areas of government and public administrationb. Position region (administrative region)c. Government administrative apparatus or deviced. Dekonsentral territorial unit pemerintahn organization.
Head of the House of Representatives is a Level I Regional Government, while the Head of the Region Regional Administrator. Area has two meanings, namely:a. Unity of the legal community who have household and given the right and power to regulate and manage his own household.b. Orgasnisasi decentralized government units.Regent of the District Chief and Head dalah pmerintah District Administrator District.
District has four meanings, namely:
a. Governance and administration areas umub. Position region (administrative region)c. Government administrative apparatus or deviced. Dekonsentral territorial unit pemerintahn organization.
Mayor of the Municipality is serving as Township Administrator. Municipality has four meanings, namely:a. Areas of government and public administrationb. Position region (administrative region)c. Government administrative apparatus or deviced. Dekonsentral territorial unit pemerintahn organization.
Regional head with the Regional Representative Council is the Local Government Level II Level II, while the second is the Regional Head Administrator II.Regional head assisted by a Secretary of State who led by Secretary of State (SEKWIL) assisted by the Head of the Regional Secretary, led by the District Secretary (SEKDA). Both of the above Secretariat be integrated into an advanced one SEKWIDA. The leadership of the Regional Representatives Council is assisted by a secretariat, led by Secretary of Parliament. Administrative City mayor is a government administrator serves as City Administrator. Administrative City has four meanings, namely:a. Areas of government and public administrationb. Title territories administrative areac. Government administrative apparatus or deviced. Dekonsentral territorial unit pemerintahn organization.
Each Head of Region (Province, District, Municipal, Administrative City, District) is representative of the central government, a single master and serves as Administrator, Development Administrator, and Administrator
3. OPERATION OF PUBLIC INTERESTIn today's modern state is known as the "Welfare State" or the welfare state, have an obligation to hold the welfare of its people. Thus the government has to act to complete all aspects / issues related to the lives of its citizens, although there has been no basic rules that govern them. On this basis, the government ddiberikan freedom to be able to perform / act with an initiative to resolve any problems or issues to the public interest. Freedom to be able to act alone on its own initiative it called the "Freis Ermessen". Here arises the question what is meant by the public interest? To answer the above questions, mak aperlu seen some theories below:1. Security TheoryThis theory says that the public interest is paramount is safe and prosperous life.
2. Theory of ProsperityThis theory says that the public interest is particularly adalahawelfare of the fulfillment of the basic needs of the communitythe form:
a. Food, Governments should make efforts / actions lest citizens difficult / difficult to find food.b. Health, meaning that government actions or decisions of the government not to damage public health and the environment.c. Employment opportunities, the government's job to create jobs, so there is no unemployment.
3. Efficiency Theory of LifeThat the interests of the people are living uama in efficiency, in order to increase the prosperity and productivity in all areas of social, economic, cultural and education and so forth.
4. Theory of Shared ProsperityThat major public importance is happiness and prosperity, social problems should be controlled, the gap between the rich to the poor is not too wide. Thus the objectives / tasks include overall government acts, deeds and decisions of the tools of government to achieve the goal of government is not only the achievement of an order in society but also the achievement of national goals or interests shared / common. Formulation of government objectives can be seen in aline Act IV of 1945, namely:"To form a government of the State of Indonesia which shall protect the Indonesian people and the entire country of Indonesia and to promote the general welfare, the intellectual life of the nation and participate in the establishment of world order"
Stewardship of the public interest are run by the government apparatusnamely:1. A peugas / functionaries or agencies that are authorized to melaksnakan duty of the State.2. Government agencies that entity which is included with the tools coercive authority and so on.
4. Freies ERMESSENIn State Welfare State or State welfare state administration tasks become very broad and diverse styles and forms in order to achieve a prosperous society, therefore the government participate / intervene in every field of community life. In language Freies Ermessen, Frei means: free, independent, not bound Ermessen: assess, coordinate something. Means the State Administration granted the freedom to act on their own initiative deeds persoalanpersoalan urgent to resolve quickly for public interest / public welfare. So Freies Ermessen aimed at the common good which is the decision of the State administration for the achievement of a goal / target and different from the judge's decision was aimed at solving a dispute in accordance with applicable law. Giving Freies ermessen the State administration for the general welfare, but within the framework of the law. Freies Ermessen should not be used without limit and should not be abused, to the Freies Ermessen elements are:1. Done in the public interest / public welfare.2. Conducted at the initiative of the administration of the State itself.3. To resolve the concrete problems that arise quickly suddenly.4. The action was made possible by the law
Example: The traffic police to solve the problem of traffic congestion by diverting / set vehicles violating traffic signs.
CHAPTER IVPRINCIPLES GOOD GOVERNANCE(Algemen Beginselen van Behoorlyk Bestuur)In a change of pelaksanaa a good government there are some insights:1. Commission de Monchy.In the know in 1950 the Dutch government set up a commission, chaired by Mr. Monchy in charge of investigating ways of legal protection for enduduk / folk. The Commission has successfully set up general principles for the implementation of a good government that is named "General Principles of GoodGovernment "The general principles are:1. Principle of legal certaintyIt means that in a government run wewenagnya must conform to the rules of law, which he discharged. The government must respect the rights derived from the government about a man and not be pulled back. Government for its decision must be consistent in order to create legal certainty.
2. The principle of balanceThat is the balance between imposing sanctions against an employee mistake, do not be excessive punishment for a person compared with mistakes, such as a new employee does not come to work immediately fired, it is not balanced with the punishment given to him. With the existence of this principle better ensure the protection of civil servants.
3. The principle of similarityIt means that the government in dealing with cases similar / the same facts, the government should act the same there is no difference, no favoritism, and so forth.
4. Meticulously Bertidak principleIt means that governments always act carefully so as not to cause harm to citizens, for example, the government's obligation to give warning to road being repaired, not to be able to inflict casualties due to road repair.
5. Principle of MotivationIt means that every decision the government should have no reason or motivation is right and fair and clear. So the government acts with the proper reasons and correct.6. Do Mencampuadukan principle AuthorityIt means that the government should not use the authority for other purposes, Elain defined goals for the authority.
7. The principle of Fair PlayIt means that the government must provide a reasonable opportunity for the community to seek truth and justice, for example, gives the right of appeal against the decision of the government that are not accepted.
8. Principle of Justice and FairnessIt means the government can not act arbitrarily or abuse the authority given to him for the benefit pribaduinya.
9. Responding principle Award The FairIt means that government action can have reasonable expectations for an interest, for example, a civil servant who asked for permission to use a private vehicle on official time, which then permits that have been granted to use a personal vehicle is revoked, the government's actions thus considered wrong / unnatural.
10. Principle Negate Effects of a Decision That ClearThis principle requires in the event of cancellation on a decision, then the bersangkutanharus given compensation or rehabilitation.
11. Principle of Legal ProtectionIt means that any state employees were given the right of freedom to arrange his personal life according to the world view espoused or in accordance with the values embodied in the Pancasila.
12. Principle of WisdomIt means that the government in carrying out their duties in accordance with the public interest ndangundang and organizing. Discreet elements must be owned by every employee / government.
13. Principle penyelenggraan Public InterestIt means that the government's duty to put the interests of umu rather than personal interests. Civil servants as officers of the State, the man of the State, and the Government held a public servant and government tasks and development.
2. Principles of Good Governance (AUPB) According to Law No. 28 of 1999.In Act No. 28 of 1999 on the Implementation of Government, Freedom from Corruption, Collusion and Nepotism, Article 1 paragraph 6 states that the General Principles of Good Governance State is the principle that upholds norms of decency, fairness, and the rule of law, to State Officials realize that clean and free from corruption, collusion and nepotism.In Chapter III of Article 3 of Law no. 28 of 1999 mentions General Principle Principle-State Management include:1. The principle of legal certainty;2. Orderly organizing principle of government;3. The principle of the Public Interest;4. The principle of openness;5. The principle of proportionality;6. Principles of Professionalism;7. Accountability principle.
In the explanation of Article 3 is described as:
1. The principle of legal certainty is a principle in law that prioritizes state foundation legislation, decency and fairness in any government policy Operator.2. Orderly State organizing principle is the principle on which the order, harmony, and balance in the control of the State administration.3. The principle is the principle of the Public Interest put the general welfare, in a way that aspioratif, accommodating, and selective.4. Openness principle is the principle that open up to the public's right to obtain information that is true, honest, and does not discriminate on the administration of the State with regard to the protection of personal rights, class, and state secrets.5. The proportionality principle is a principle that promotes a balance between the rights and obligations of State Officials.6. Professionalism principle is the principle of the priority of expertise based on the code of ethics and regulatory provisions in force.7. The principle of accountability is a principle which determines that any activity and final results of the activities of State Officials must be accountable to the people or the people as the supreme sovereign State in accordance with the provisions of the applicable legislation.
5. According to the World Bank and UNDP
A good governance include:
1. Participation2. Rule of Law3. Transparency4. Responsiveness5. Consensus Orientation6. Equity7. Effectiveness and Efeciency8. Acountability9. Strategy Vision
From the descriptions above, the characteristic good governance include:1. Involve the whole community2. Transparency and responsible3. Fair and efektive4. Ensure the Rule of Law5. The existence of public consensus with the Government in all fields6. The interests of the poor.
CHAPTER VSYSTEM OF GOVERNMENT OF THE REPUBLIC OF INDONESIA
1. BY STATE INSTITUTIONS Constitution 45The government system of the Republic of Indonesia according to the 1945 Constitution after the fourth amendment in 2002 has set about forming composition and powers / authority of state agencies are as follows:1. House of Representatives2. Regional Representative Council3. People's Consultative Assembly4. Audit Board5. President and Vice President6. Supreme Court7. Constitutional court8. Judicial Commission
1. People's Consultative Assembly (MPR)
MPR is a duty (Article 3 of the 1945 Constitution)1. Change and set 19452. Inaugurated President and Vice President3. Can memeberhentikan President and Vice President
President of the term of office menuurut Constitution Article 1 (2) of the 1945 Constitution, Sovereignty belongs to the people and conducted according to the Constitution. Before the Assembly is the highest authority or the holder of sovereignty of the people, as the highest state authority, the Assembly oversees other agencies. With this change, then:1. MPR is no longer the highest body State2. No longer holds the sovereignty of the people3. No longer choose Presidendan Vice President for the people directly elected.
Regarding dismiss the president and vice president during jabatanya, MPR has kewenagan if:1. There is a proposal from the House2. Constitutional Court to examine, hear, and decide that the President and / or President Eakil guilty.
Reasons position as the highest institution of the State Assembly and the holder of sovereignty is eliminated, because the Assembly is not the only institutions that implement popular sovereignty, every institution that expands the political tasks of State and government is implementing the sovereignty of the people and shall be subject and accountable to the people. Regarding the membership of the Assembly under section 2 (1) says: MPR consists of members of DPR and DPD members are elected through general elections and further regulated by law.Thus the MPR membership comprises:1. All members of the House of Representatives2. DPD
The existence of the DPD to be more democratic and increase local participation in the administration of day-to-day practice of State and government as well as the interests of the forum area. Regarding changes in the 1945 Constitution stipulated the change mechanism in Article 37 of the 1945 Constitution.
2. House of Representatives (DPR)
DPR is the assignment of authority:
1. Parliament holds the power to make law2. House of Representatives Budget and Control function3. Parliament has the right of interpellation, inquiry, and the right to express pandapat, ask questions, express opinions and rights ususl and immunity.4. Parliament give consideration to the President and the Ambassador raised the placement of ambassadors of other countries, giving Amnesty and Abolition.5 House of Representatives gave approval when the president was about to make economic agreements, peace treaties, entered the war as well as other international agreements, and elect members of the CPC, appoint and dismiss members of the Judicial Commission and the Constitutional Court menominisasikan 3.6. House gives approval to the President in case the President was about to appoint a military commander, the Chief of Police.7. Parliament is authorized to elect / select the Corruption Eradication Commission Member, Bank Indonesia Governor and Members of the National Commission on Human Rights.8. Parliament can propose to impeach the President and / or Vice President, after examining the Constitutional Court, and the judge decided that the President guilty. When viewed duties, powers, functions and privileges of Parliament are very numerous and far-flung, in fact almost all areas of the power possessed Parliament President
3. Regional Representatives Council (DPD)DPD set out in Article 22c and 22d of the 1945 Constitution.Council members elected from each province through a general election. Number of members of each provincial PD is not more than one-third the number of members DPR.DPD besidang at least once a year. The structure and position of DPD regulated by Law. DPD authority (Article 22d)1. DPD may submit to Parliament a draft law relating to local autonomy, central and local relations, the formation of the division, and region merging, processing of natural resources and other economic resources cracked and financial balance between the center and regions.2. DPD shall supervise the implementation of the Law on regional autonomy, the establishment of the division, and merging of regions, central and local relations processing of natural resources and other economic resources cracked, the implementation of the State budget revenue and expenditure, taxation, education and religion, and present the results of monitoring to DPR.3. DPD as part of the institutional MPR, has the task to appoint and dismiss the President and / or Vice President, changing the 1945 Constitution, elect the President and / or Vice President if at the same time they remain absent.
DPD rights, namely:
1. Had proposed and opinion2. Pick and choose3. On the defensive4. Rule5. Protocol6. Finance and Administration
6. President and Vice President
President holds the power of government by the Constitution. President in exercising his duties, assisted by a Vice-President. President and Vice President shall hold office for five years and thereafter may be re-elected in the same position for only one more term. 1945 putting notch higher institutions of the State are equal to each other can not be dropped and / or disperse Article 8 of the 1945 Constitution says:1. Should the President die, resign, dismissed or unable to perform an obligation under the tenure, he was succeeded by Vice-President until the end of his term.2. In the event that the Vice President not later than within 60 days of the Assembly held a siding to elect the Vice President from the two candidates proposed by the President.3. If the President and Vice President die, resign, dismissed or unable to perform his duties during his post at the same time, the implementation of the presidential task was Foreign Minister, Minister of Interior and Minister of Defense jointly, no later than thirty days after the Assembly held siding to elect the President and Vice-President nominated by the political party or coalition of political parties whose candidates won the President and Vice-President of the first and second most votes in the previous general election until the end of his tenure.
7. The Supreme Court (MA)
1945 confirmed that Indonesia is a country of law. Indonesian state based on law (rechtsstaat) is not based on power alone (machtsstaat). System of government based on the Constitution, non-absolutism (unlimited power). Principle in the law is the guarantee of a State implementation independent judiciary, free from the influence of other powers to held for law enforcement and judicial fairness. Kehaiman power carried by a Supreme Court justice and badanbadan that are below it in the environment.1. General Court2. Religious Courts3. Military Justice4. State Administrative Court5. and by a Constitutional Court.
Law. 4 of 2004 on judicial power has been revoked Law. 14 of 1970 and Law no. 35 of 1994, in which all the affairs of the judiciary both technical judicial, administrative and financial organizations under one roof that powers the Supreme Court.Indonesia is a democratic country where sovereignty is in the hands of the people and also Indonesia is a country of law or rule of law, both of them together in a democratic conception of the State law or State demokratsi are based on the law, and subsequently as the embodiment of the nation's confidence in Indonesia's sovereignty of God in the administration of state life based Pancasila,
8. The Constitutional Court (MK)
Article 24 C of the 1945 Constitution says:
1. The authority of the Constitutional Court at the first and last decision is final in the Constitution Act.2. Decide disputes the authority of State agencies the authority granted by the Constitution.3. Dissolution of political parties.4. Decide disputes about the election results.5. Obliged to make a decision on the opinion of the House of Representatives regarding the alleged violations by the President and / or Vice President by the Constitution.
Comparison between the Supreme Court by the Constitutional Court are:1. Both equally a judiciary power.2. The Supreme Court is the court of justice (Court of Justice), while the Constitutional Court Organization Law Courts (Court of Law).
9. Supreme Audit Agency (BPK)
A stipulated in Chapter III, Article 23 E, which reads:
1. To check processing and financial responsibility of the State Audit Board in a free and independent.2. The results of the audit submitted to the DPR, DPD and DPRD within their authority.3. The workup followed by representative institutions and / or agencies in accordance with the Act.4. CPC members elected by the Parliament with the consideration of Council and inaugurated by the President. CPC budget also authorized to conduct inspection, the company elapsed areas, state-owned enterprises, and private enterprises where there is a wealth didalmnya State.
10. Judicial Commission (KY)
Governed by Article 24 B of the 1945 Constitution and Law No. 22 Year 2004 on the Judicial Commission. The Judicial Commission is a state agency that is independent and authority in the implementation free from interference or influence of other powers. Judicial Commission members are appointed by the President with the approval of Parliament. Authority of the Judicial Commission are:1. Propose the appointment of the Chief Justice to Parliament2. Uphold the honor and dignity and maintain the behavior of judges.
The task of the Judicial Commission are:
1. Candidates registering for Supreme Court Justices2. Make the selection of candidates for Supreme Court Justices3. Candidates set for Supreme Court Justices4. Candidates filed a Supreme Court Justice to Parliament5. To supervise the conduct of judges6. Proposed sanctions against judges to the Chief MA and / or MK
2. INDEPENDENT INSTITUTIONS1. Independent agencies are the basic formation is set in 1945, are:
1. Election Commission2. Indonesian National Army and National Police (Military and Police)3. Bank Indonesia4. Attorney General
Specialized institutions that are not regulated under the 1945 Constitution, are:
1. Komnas HAM2. KPK (Corruption Eradication Commission3. Ombudsmen Commission4. KPKPN (Wealth Provider State Examination Commission)5. Business Competition Supervisory Commission (KPPU)6. Truth and Reconciliation Commission (TRC)2. Election Commission
Set forth in Section 22E of the 1945 Constitution which reads:
1. Elections are held in direct, general, free, confidential, honest and fair once every five years.2. The general election was held to elect Members of the House of Representatives, the President and the Vice President and the Parliament.3. Participants Election to elect members of Parliament and the legislature is the political parties.4. Participants Election for Council members is an individual prefers. Further provisions of Section 22E of the mandate of the 1945 Constitution stipulated in Law no. 12 of 2003, concerning Election DPR, DPD and DPRD.
General Elections Commission (KPU) is a national institution, fixed and andiri to organize elections.Duties and authority of the Commission are:
1. Plan for the administration of elections.2. Establish an organization and procedures for all phases of the election.3. Coordinate, organize and control all phases of the election.4. Establish electoral participants.5. Establish electoral districts, the number of seats and candidates for DPR, DPD, Provincial and Regency / City.6. Set the time, date, procedure and voting pelaksanaankampanye.7. Establish and announce the election results of candidates elected DPR, DPD, Provincial, Regency / City.8. Evaluating and reporting election.9. Melaksanakantugas and other authorities who governed the Act.
3. National Commission on Human Rights (Komnas HAM)The obligation to respect human rights is seen in the opening of the 1945 Constitution relating to the equality of citizens in law and government, freedom of association and assembly, the right to dispense with the oral and written thoughts, freedom of religion and to worship according to the religion and kepercayaannyaitu, the right to to education and teaching. In connection with that then the MPR Decree No.. XVII of 1998 on human rights:1. Assigning it to a high state institutions and the whole apparatus of government to respect, uphold and expand the understanding of human rights to all people.2. And ratify the various instruments of the United Nations on human rights is not contrary to Pancasila and the 1945 Constitution.
On the orders of the Constitution and the mandate of the Assembly of the above, then by Law No. 39 of 1999 (LN 165/1999) concerning human rights, which essentially provides for:1. Governing the establishment of the Human Rights Commission as an institution that has the functions, duties and authority and responsibility to carry out an assessment, research, counseling, and mediation pemamtauan about human rights.2. Law. 39 In 1999, guided by the UN Declaration of Human Rights, the UN Convention on the Elimination of all forms of discrimination against women, the UN Convention on the rights of children and berbaagi other international instruments governing human rights.3. Komnas HAM received reports / complaints from people who have reason to believe that there has been a violation of human rights.
Commission members numbered 35 persons elected by the Parliament on the Commission proposal and appointed by the President as Head of State (Article 83) Human Rights Commission is an independent agency that is independent in charge and authorized to give opinions on certain matters that are in the process of judicial . Thus the Commission does most of the judicial function that is under the supervision of the Supreme Court.
3. Indonesian National Army
Stipulated in Article 30, Paragraph 3 of the 1945 Constitution which says:"Indonesian National Armed Forces consist of the Army, Navy, and Air Force as an instrument of the State duty to maintain, protect the, maintaining kutuhan and sovereignty of the State." With regard to the duties and authority as well as the military position, it shall be further regulated in Act No.. 34 of 2004 trntang Indonesian National Army. TNI main tasks are: uphold the sovereignty of the State, maintaining the territorial integrity of the Unitary Republic of Indonesia, as well as to protect all people and the entire homeland of Indonesia from the threat of disorder and integrity of the nation and the State. TNI Commander who led by a lift and dismissed by the President upon approval of Parliament. Thus in terms of the deployment and use of Military Force, Army positioned under the President. While the defense policy and strategy as well as administrative support, under the coordination of the military Department of Defense.
4. Bank Indonesia
Bank Indonesia is regulated in Article 23 D of the 1945 Constitution which states: The state has a central bank that arrangement, wewenanh position, responsibility and independence set by the Act. Bank Indonesia is regulated by Law no. 3 of 2004 on amendments to the Law. 23 of 1999 concerning Bank Indonesia. According to Article 4 of Law no. 3 of 2004 states:1. Bank Indonesia is the Central Bank of Indonesia2. Bank Indonesia is the Independent State Institution.3. Bank Indonesia is a legal entity.
Gunernur, Senior Deputy Governor and Deputy Governor, nominated and appointed by the President with the approval of Parliament. Board of Governors are appointed for a term of 5 years and may be reappointed for one term of office. The Government shall request the opinion of Bank Indonesia and / or invite the siding cabinet to discuss the economic problems of banking and finance and shall give opinions and considerations regarding the draft budget to the government and other policy-related duties and authority of Bank Indonesia.
CHAPTER VIDEEDS OF GOVERNMENT / GOVERNMENT ACTION
In the government's actions there are two things that need to be understood issues are:1. What is the government and2. What is a government act.
a.d.1. What is meant by the government is:According Wirjono Prodjodikoro, the government can be divided in a broad sense and in the sense sempit.Pemerintah in a broad sense covering all functions of state activities that state institutions are regulated directly by the 1945 Constitution and the institutions regulated by the Act. While the government in the narrow sense is the President / Executive. According Kuntjoro Purbopranoto said the government in its broadest sense encompasses all matters undertaken by the State in the course of the people's welfare and the interests of the State, while the narrower sense is the only executive duties.
a.d.2. Definition of Government ActionsGovernment action is a legal action taken by the authorities in carrying out governmental functions. According Romijen, government action is "bestuur handling" each of which is a perl tool; engkapan government. According to Van Hoven Vallen, government action is an act spontaneously on their own initiative in the face of circumstances and needs that arise without waiting for orders from superiors, and on his own responsibility in the public interest. Various Kinds of Government Actions government actions can be classified into two types, namely:1. Government action based on the facts (Fiete Logtie Handilugen)2. Government actions under the law (Recht Handilugen)
a.d.1. Government action based on the factsOr the law is not based on the actions that authorities have no legal effect, for example, the Mayor invited the public to attend the August 17, the President called on the people to live simple and others.
a.d.2. Government actions under the law (Recht Handilugen)Are actions that authorities have legal effect, it can be classified into two categories, namely:
1. Government action in private law lapangaan, where authorities held a private legal relations by law. According to Prof. Krobbe Kranenburg, Vegtig, Donner and Hassh, that officials of the State administration in carrying out their duties in certain cases can use private law, umpanya lease deeds, sale of land and other agreements.2. Government action in the field of Public Law legal actions in the field of Public Law there are two kinds, namely:
a. Public Law sided act two, namely the existence of two wills / will power is bound, for example in the agreement / contract. On this subject there are some scholars who menentangadanya prbuatan two mass-square law Meijers Cs say that there is no correspondence between the will of the parties.b. Public Law sided single act, the act which is done by the will of one party is the act of government itself.
2. BESCHIKKING / PROVISIONS
1. Definition of Terms and ConceptsThe term originated from the Dutch Beschikking introduced by Van der Pot in negreri Netherlands and entered Indonesia through Mr. Prins who teaches at the University of Indonesia. Some scholars give different translations of the term Beschikking. Utrecht translates as "Assessment". Kuntjoro translates as "Decision". Term or provision can be interpreted and separate. the Legislative Act, while Ketetapana MPR including in politics so that its position can be assessed too high. Ketetatap in administration / State supplies tools is only the implementing regulations in the field of administrative alone. Beschikking a decision, this term can be interpreted as a decision of the judge, but the judge's decision is different from Beschikking. Formal judges' decision is Judicial Administrative Judicial while statutes are.
2 Understanding AssessmentState Administration provision is one-sided public law made by the agency / special powers by government officials. Some opinions about the assessment:
1. Van Der Wel said assessment is a legal action by a government instrument with intent to induce or reject a legal relationship.2. Prins said the assessment is a unilateral legal acts in the field of government by means of the ruler by special authority.3. A.M. Donner said the assessment is a legal act performed by the administration tool based on a provision binding and generally applicable.4. Stellinga, assessment is something making it a tool of government is located in the field, making rules, police, and courts.5. According to Law no. 5 of 1986 tentyang State Administrative Court, Article 1 (3) mentions Administrative Decision is a written determination made by the agency or the state administration officials that contains legal action by the State administrative regulations in force which is concrete, individual, and the final legal consequences for a person or body of civil law.
Based on the definition of the Act No. ndang. 5 of 1986 on top of it can be explained as follows:a. Concrete means certain object / clear, not abstract, eg, the decision to grant the building permit.b. Individual decision means special / specific, not general, name, address, and who became the object clearly.c. Final means is definitive / complete does not require a supervisor's approval.d. Legislation based on your prevailing.
According to Van Hoven Vallen Government actions have the following three properties:1. Real and concrete meaning set certain things2. Kusnistis, means resolve a case-by-case3. Individual means applies to a particular person which are clearly identified.
3. Terms syaratsuatu AssessmentAn assessment must meet the terms of that provision was to be valid, namely:1. Created by instrument / competent authority2. Should not be starved Juridical3. The manner in accordance with the basic rules4. Contents and objectives in accordance with the basic rules5. Legal consequences
a.d.1. Created by the authorities, meaning that provisions should be made by state officials in power / authority under the Act and if the determination is made by an official who is not authorized, then the result is null and void provision.
a.d.2. There should be no shortage of juridical meaning that provision should be made in accordance with statutory regulations. Thus the decree should not be made on the basis of:1. One estimate / divaling2. Trickery / dwang3. Bedrog
Such provisions may be canceled
a.d.3. Form and MethodForm and manner / Proseduir Assessment has been defined in the legislation. Theoretically there are two kinds of forms of provision are:
1. Oral forms, this form has no legal effect and is not so important for the administration of State and conducted under the situation quickly / immediately.2. Written form, provision is made in writing is very important in the preparation and diktumnya reason should be obvious to the preparation of the appeal as well as for the sake of legal certainty.
a.d.4. The content and purposeThe content and purpose must be in accordance with the provisions of the rules on which the decree was issued. In practice many provisions that the content and purpose not ssuai with the basic rules, it is merupakandotournement pouvois den, which is where state officials use their authority to hold another public interest for the public interest intended by the legislation that became the basis of the authority or an abuse of authority.
a.d.5. Legal consequences for the person or legal entity civil. Significant legal consequences lead to a change in an existing legal relationship, such as childbirth or abolish a legal relationship, and gave birth to an authority or for an agency or administrative office atauberubahnya an authority for an agency or official.
3. TYPES OF PROVISIONSIn society arise various problems that the government should work hard to resolve these problems by doing good deeds regular acts / facts and legal action to resolve the problem by issuing various provisions in form and content varied tone. Basically very difficult to determine the kinds / classification of the various statutes. In general, the various provisions are as follows:1. Positive provisionsIe provisions which may give rise to the rights or obligations of those who are, also a statute that raises a new state law or a provision of a decree canceling the old one. For example: the Rector appoint a faculty committee member of the State exam. The Rector's Decree based on several letters P and K Minister on the administration of the State exam. Rector's decision to put new keawjiban and provide new rights for lecturers appointed a member of the State exam committee. New obligation is an obligation to test and new rights is the right to receive an honorarium as a result of the appointment. Mr. Prins argues that the positive provisions of law have akibatakibat in five categories:1, Provisions generally give birth to a new state law.2. Provisions state that gave birth to the new law for a particular object.3. Provisions which led to the establishment or dissolution of a legal entity.4. Provisions membrimkan new rights to someone or more (favorable provisions)5. Provisions mebebankan new obligations to one or more persons (the commandments)
2. Negative AssessmentsIs the rejection of something every request to change somethingcertain circumstances existing law. The forms of the negative determination is:a. A statement is not authorizedb. Statements are not acceptablec. A rejection3. Provisions Declaratoir
Ketatapan to the effect that what is out there / is set by law, such as a right of civil servants to get 12 vacation days off work. This entitlement is defined in Law No.. 8 of 1974.
4. Constitutive provisionsKetatapan is the birth of new rights, new rights not previously owned by the person specified in the statutes.
5. Rapid AssessmentsProvisions that apply only a short time at a given moment, for example driver's license, ID card.
6 Assessment PhotographicProvisions valid for life, once issued remains valid, for example diploma, Charter.
7. Fixed KetatapanNamely provision that the validity period for the time until the amendment / withdrawal.
8. Internal AssessmentsHeld that provisions in its own environment, for example the transfer of employees from the finance department to be part of debriefing
9. Provisions ExternProvisions which relate to the implementationoutside, for example granting building permits.
4. DEEDS OF OTHER GOVERNMENT1. DispensationDispensation is a statute which abolished due to the binding of a regulatory, Prajudi Atmosudirdjo said:Dispensation is a statement of government authorities a tool that forces a particular law does not apply to the issues / cases raised by someone.Van Der Pot says:Dispensation is a decision tool that frees the government from the grip of an act of an ordinance prohibiting the act Prins saidGovernment dispensation is an act which negates the effect of the legislation to a special issue. The purpose of the exemption is that a person can commit a legal act to deviate from the terms of the legislation untdan beralku. For example: granting permission for a 15-year-old woman to marry, even though the rules determining the conditions for women aged 16 should know.
2. I Z I N / vergunningPermission is menguntungnkan provisions, such as giving permission to run the company. There are essentially granted permission because no law forbids.
3. L I S E N S IA license to run a company, such as License to import or export goods crops.
4. K O N S E S IIs a conditional agreement between the government and a private / government to perform a task.
Vollen Van Hoven said:Fit in the private sector over the government's permission to do a big business that emnyangkut public interest, for example: Concession mining, forestry and alin so,
Van de Pot says:Concessions are State administrative decisions that maintain awith private law subjects is important for the government to actgeneral.
Prins said:Concession is a license on terms that are important to the public, for example in the field of mining.
Kerenenburg said:Concessions associated with the government, to provide assistance in the work to the public and monopolistic.
5. ORDERSPrins said:Command is a statement that his government will mention anyone and for those people who previously gave birth to certain liabilities not duties.`For example, an order to disperse some people who intend LOTSA disguised under section 218 of the Criminal Code, the discharge orders, demolition of buildings and sebagaianya.
6. CALLAccording to Prins said:Calls give the impression of the existence or emergence kewajinam, this means that if a call is not met will be penalized. For example, prosecutors calls to a particular person to be heard or had someone to call the police for questioning and so forth.
7. INVITATIONAccording to Prins: Invitation to and or not menib \ mbulkan obligation and has no legal effect, only has a moral obligation.
CHAPTER VIILOCAL GOVERNMENT SYSTEM
1. LEGAL BASIS:1. Article 18 of the Constitution 45Section 18A and 18B2 .. Law. 32 Year 2004 on Regional Government
Local Governance principles:1. Principles set up and manage their own local affairs according to the principle of autonomy and assistance (paragraph 2)2. Exercise autonomy principle luanya (5)3. The principle of specificity and diversity (Article 18A, paragraph 1)4. Recognizes and respects the principle of unity of the communities and their customary law traditional rights (Article 18B paragraph 2)5. Recognize and respect the principle of local government that are special and privileged (Article 18B paragraph 1)6. Principle councils directly elected in a general election (Article 18 paragraph 3)7. Principle of central and local relations should be conducted in harmony and fair (Article 18A paragraph 2)
Principles of Local Government- Local Government is an autonomous government in Homeland- Governor, Regent / Mayor solely as executor autonomy in the area.
2. LOCAL GOVERNANCE PRINCIPLES1. Decentralization:According to Law 32 of 2004, decentralization is devolution of government power to local government autonomy to govern and manage the affairs of the State System of government in the Republic of Indonesia.Implementation of the Decentralization paemerintahan can:1. Flexible means to meet / follow the changes that occur.2. Can carry out their duties with Effective and Efficiency.3. Can berinovatif4. Can encouraging the emergence of attitudes, commitments can be more productive.
Factors affecting the implementation of decentralization:1. Extent of official center / central bureaucracies support decentralization and organizations entrusted with the responsibility.2. Extent of attitudes, behaviors, dominant culture supportive or conducive to the decentralization of decision-making.3. Extent the policies and programs are designed and implemented appropriately to improve the decentralization of decision making and management.4. The extent of financial resources, human, physical available to organizations assigned responsibilities.
Decentralization people have given positive results, namely:1. Existing public access in rural areas has increased.2. Has increased public participation in all fields.3. State has been an increase in administration in government engineering / regional organizations.4. New organizations have formed local level / regional / local, for development planning.5. And regional planning at the local level has become an important element of national development daristrategi.
2. The principle of deconcentrationUnderstanding the Law 32/2004 Article 1 (8)Deconcentration is the delegation of government authority by the government to the Governor as representatives of governments and / or agencies to the vertical in a particular region.Deconcentration principle there are three ways:1. Of giving / delegate its authority from central government to local officials in organizing tasks for the central government in the region, including the delegation of authority to the superior officers subordinate level.2. In terms of local government administration in the area who were given the task of government affairs enyelenggarakan existing centers in the area.3. In terms of zoning, dividing the territory into areas where there is a local government administrative
3. Principle Assistance / MedebiwindLaw 33/2004 Article 1 paragraph 9Assistance is:Assignment of the local government and / or the village from the provincial to the district / city / village and from the government or the district / city to the village to carry out certain tasks.Law. 22/99 Article 1 point 9:Assistance is: Assignment of the local government and village to village and from region to carry out certain tasks that accompanied the financing of infrastructure and human resources to the implementation of mandatory reporting and accountability kepadayang commissioned.
CHAPTER VIIISTATE-OWNED ITEMS
In the law consists of legal subjects:1. Human2. Corporation
While the legal subject legal entity consisting of:1. Private Legal Entity2. Public Legal Entity
Public legal entity such as the State, Provincial, District / Municipal and Other Public Law Board can act in the field of civil law and have Pivat or wealth of objects called public objects. States as subjects of civil law civil law can do something like sell, lease, manage and utilize these objects.
Public objects divided into:1. Objects that are intended for the general public or Domein, which includes the object is, public roads, field-lapanagan open, public buildings, where the general public freely enjoyed.2. Objects owned by the government itself is peruntukannyatidak for common objects, such as home offices, office buildings, mobilmobil Office, office equipment and so on.
Classification of Bodies of State / State Property by the Minister of Finance. 225 1971 On 13 April 1971 was as follows:
1. Stationary items, which include:a. The forest lands, agriculture, plantation, field of sports and belumdipergunakan lands, roads (not including local roads), railways, bridges, tunnels, dams, airports, irrigation structures, land ports, land and others like it.b. The buildings are used for offices, factories, workshops, schools, hospitals, studios, laboratories, and others (the building) c. Buildings permanent residence or temporary such as: rumahrumah shelter, rest areas, dormitories, Pesanggarahan, bungalows, and other such buildings.d. Monuments such as ancient monuments (temples), natural monuments, historical memorials, monuments and other peubakala.
2. Moving Goods, which include:a. Great tools such as: Bulldozers, tractors, jackhammers land, hijskraan, and other great tools like that.b. The equipment is in factories, workshops, studios, laboratories, power generating stations tenega, and so sepertimesin-engine, dynamo, generator, microscopes, radio transmitter equipment, photography equipment, frigidair, projection equipment, and so forth.c. Office equipment, such as typewriters, stencil machines, accounting machines, computers, machine number, fax machines, radios, clocks, fan-cooled, wardrobes, tables, chairs, and others, while the office equipment that is not how the price like: ashtray, wastebasket and so should not be included.d. All library inventory and other inventory items patterned culture.e. Transportation equipment such as aircraft, ships, buses, trucks, cars, motorcycles, scooter, moped, bicycle, and others.f. Inventory supplies hospitals, sanatoria, boarding, orphanages, and or strays.
3. The animals, the animals such as cattle, buffalo, horses, pigs, anjung, and other animals.
4. Goods inventory, the goods stored in the warehouse Veem or in other repositories.
CHAPTER IXSTATE JUDICIAL ADMINISTRATION (Administrative Court)
1. Basic Law of the Administrative Court
a. Law. 5 of 1986, concerning State Tat Stateb. PP. 7 In 1991, on the application of Law no. 5 In 1986, on the Administrative Court No. LN. 8/1991.
2. Establishment of Administrative Court Constitutional basis.
a. Article 24 UUD 1945(1). Judicial power is done by a Supreme Court and other bodies under the Act of Justice(2). The composition and powers of the judiciary bodies regulated by the Act.
b. Article 10 paragraph 1 of Law no. 14 of 1970, concerning Basic Provisions made by the Court of Judicial Power in the environment:1. General Court2. Religious Courts3. Judicial Muliter4. State Administrative Court3. Composition of the Administrative Court
a. State Administrative Court is the court of First Instance.b. State Administrative Court, a justice of Appealc. The Supreme Court, a State Administrative Court Supreme, which serves as a judicial appeal.
3. Power and authority of the Administrative CourtPTUN duty and authority to examine, decide and settle disputes state administration.Administrative disputes are:a. Disputes arising in the field of state administration.b. Disputes between people or civil legal entity with administrative agencies or officials of the State both at central and regional levels.c. Disputes due to the issuance of state administrative decisions, including employment disputes based on the legislation in force.
4. Administrative Decision
a. A written determination issued by agencies or officials of the State administration.b. Which contains the legal action is based on state administrative laws and regulations.c. Which is concrete, and the final individual.d. The legal consequences for someone.
5. Theories About Competence PTUN1. ThorbeckeDigunaklan size in determining where the competent judicial ilalah; Principal dispute (fundamentum petendi). When the main dispute lies in the field of public law, the judge authorized the administration to decide. When the main dispute lies in the field of civil law, civil judge / magistrate authorized ordinary.
2. BuysThe measures being taken are necessary to determine the judicial authority: Principal in dispute (obyektum litis). If someone harmed in their private rights and filed compensation, meaning the object in the form of private right dispute, then the matter should be resolved by the ordinary judges. Although the dispute lies in the field of public law, when a private right which is the subject of the dispute is the authorized ordinary judges.
6. Filing lawsuit in the Administrative CourtA lawsuit can be filed to the administrative court if it fulfills the requirements that:a. Plaintiff only person or private legal entitiesb. Defendants only agencies or government officials.c. Lawsuit: The government's decision is written concrete, individual and final.d. Fill demands: Plaintiff demanded that the government disputed decision declared void or invalid, with or without a claim for compensation or rehabilitation.
7. Reason Lawsuita. When the state administrative decisions contrary to the regulations applicable erundangundangan example:1. Defect is a defect in the procedure of decision-making procedures.2. Disabilities about the contents of that decision.3. Defect of the authority.
b. When a government agency or official has issued a decision on the future use of its authority for the purposes of the authority given laindari purpose. There has been an abuse of authority (de tournament de pouwier)c. When government agencies or officials when issuing or not issuing a decision after considering all the interests that stuck with that decision should not be up to taking or not taking the decision.
8. Court decisions can bea. Lawsuit rejected