INTRODUCTION
A. ISSUE BACKGROUND
until the country functioning. The linkages between the country offices of other dama and the legal relations between positions that country and its citizens). As an overall rule hukumyang determine how to run the country as efforts to fulfill the task, or the way the ruling ituseharusnya behave in seeking out their duties).
In carrying out efforts to fulfill his duties, authority or administrative officials require what is called a tool or means that in an instrument called halini government.
The word meaning instruments facilities / equipment is better designation for an object that is concrete and abstract in order to achieve or facilitate in any activities to an achievement.
Instruments of government are instruments or facilities used by the government or the state administration in carrying out their duties. This can be either an assessment, the legal act carried the tools of government, the statement will of the tools that government in holding a special thing with the intent to make a change in the field of environmental law). By using the means or instruments such as stationery, transport communications, office buildings and others. Collected in the public domain / belongs to the public. In addition, the government also uses a variety of legal instruments in carrying out the activities set up, run the administrative affairs of society, such as legislation, decisions, decrees, and others that are useful for keadministrasian state affairs. State administrative law power to question what is owned by the government, to which the limit that power, how to prevent the government is not producing an arbitrary provisions, pursuant to the authority receives from the state administration law).
For power and control the government did not cross the line in terms of power are not out of the corridors of power usage, as well as government product regulations are not arbitrary, then a statute must meet the requirements of these assessments must meet the requirements of the State Administrative provisions as appropriate. Various kinds of assessments and decisions of the State Administration as well as how the characteristics of the Administrative Court's decision.
This certainly requires an explanation in detail in order to provide an understanding primarily to community members and government officials in order to regularity in the framework of state administration. Legislation which in this case becomes the basis or source of regulation, and competence of attribution, delegates, and mandates that are part of the embodiment of state administrative courts.
B. THE BASIC PROBLEM
Starting from a background as explained above, the formulation of the problem or what will be the group we discuss are:
a. Overview of the instrument of government
b. Legislation
c. Assessment of State business obedient, kind and requirements assessments
d. Decision of the State administration and, type and characteristic Administrative Court's decision
e. Competence: attribution, delegansi, and mandate.
B. Literature search
The discussion of the instruments of government is one of many discussions in the administration of state law that includes legislation, the provisions of state administration, including the terms and the kinds of statutes, state administrative decisions, kinds and characteristics of the decision and state administrative courts (administrative court) and competencies which include attribution, delegansi, and mandate.
In the book's Ridwan HR explained that the teorik, the term "legislation" has two meanings, first is the process of formation or the process of establishing state regulations, both at central and regional levels, secondly, all state regulations, which are the establishment of regulations, both at central and regional levels, while in the book belong to Drs. C.S.T. Kansil, SH "Legal Governance" explained that the legislation is a state regulation issued by the government to regulate and organize the general welfare of all people.
Assessment is a tool of government decision-something (in the broad sense) whose contents are not located within the field of drafting legislation, police and courts, while in the book Nedharlands Bestuursrecht, by Donner diperkenalhan any other definition which reads: "The assessment is the act of government that are held by a public office which in some way be multifaceted one deliberately affirm a legal relationship or a state law that already exist, or that raises a legal relationship or a new legal situation, or reject it. "
Kinds of provisions as contained in the book miilik father of Drs. C.S.T. Kansil, that the provisions contained in the Assembly, Presidential, the decision of ministers, parliament's decision, the decision of local leaders, judges decision, and the law.
The decision is a product of good government issued a decree, or other issues related to disputes related problems in a country's citizens in administrative affairs. This decision is a statement of the organs of government kehindak to (implement) a special case, ditunjikan to create a new legal relationship, change or delete the existing legal relationships).
Regulations in the state administration is a goal ketidaklainan with the existence of a determination resulting in a verdict that the goal to meet or to an achievement of welfare for the people.
C. METHODOLOGY APPROACH
formulate this task is the use of the method "search in the library" A search is also more objective and scientific activities in accordance with the fact we need a method appropriate to the issues being discussed, the method we use in the book at your nearest book-lending center, in order to find the completeness of the information needed about the instruments of government.
CHAPTER II
PAMBAHASAN
A. An overview of instruments of government.
Instrument of government in the mean in this case are the tools or facilities are in ginakan by the government or administration of the State in carrying out his duties. In performing the duties of government, government or state administration perform a variety of legal action, using the means or instruments such as stationery, transport and communication facilities, office buildings, and others. Collected in the public domain or belong to the public. In addition, the government also uses a variety of legal instruments in the course of organizing and running the affairs of government and society, such as legislation, decisions, regulations, policies, licensing, civil law instruments, and so forth. In this chapter the description further in limiting the legal instrument made in basic and used by the government in carrying out its duties and kewenagannya.
Before describing the various legal instruments used by the government in carrying out the acts of government, first needs to make about the structure of legal norms in the State administration, which can be made as a tool in understanding the legal instruments of government. Regarding the view structure of this state administrative law norms, HD van Wijk / Willem Konijnebelt mengatakn as follows:
"Meteriele het voor het recht geeft voorchriften mensenlijk handelen. Deze voorschriften, normen, hebben, in Had administrative recht een Andere mestal and in het privaatrecht structuur en in het strfrecht. Daar vindt men (wat betreft het recht geschreven) de norm doorgaans rechtstreeks in de Wet "
"Maar in het bestuursrecht vindt de normstelling heel vaak plaats in twee of Meer fasen; to Moet een van rechtregels raadplegen samenstel om te erachter comments waar men aan toe is"
(Material law regulate human behavior. Regulations, norms, within the State administrative law has a different structure than the structure of the norm in civil law and criminal law. In a civil or criminal law, we find directly the norms about what is in the set {in written law } in the law. In the State administrative law norms structures found in various places and in two or more levels; there we must find a norm on the tiers of legal regulation)
Legal norms contained in civil or criminal law can be found easily in certain articles, such as the provision of what is a homicide or a treaty, while to find the norm in the law of the State administration must be sought in all relevant legislation since the highest level and nature general-abstract to the most low-concrete individual. According to Indro Harto, that in the atmosphere of the State administrative law that we are facing terraced level legal norms should be noted. That is, the rule of law which must be applied not just be found in the law, but in a combination of regulations and decisions of the State administration with each other interrelated Indroharto further states that:
1. overall norms of the State administrative law in a society that has graded structure from the very general who conceived in the MPR, Law, and so on until the norm of the most individual and concrete contained in a written determination (beschikking), so a written determination that can also contain a rule of law as well as on a general rule.
2. establishment of legal norms in a society the State administration was not only done by the legislators (legislative power) and judicial bodies, but also by government officials in this agency or office of the State administration.
B. Legislation.
Regulation is a law in abstracto or binding norm general public (generally accepted) and its task is to Manage the things ayang general nature (general). in toretik, istialah "legislation" (legislation, wetgeving, or gesetzgebung) has two senses, yaiyu: first, legislation is peruses the formation / process of establishing the State regulations, both at central and regional levels; second, are all the laws and regulations of State, which is the result of the establishment of regulations, both at central and regional levels. with respect to the law, A. Hamid S. Attamimi wrote as follows. The terms of legislation (wettelijkeregels) literally can mean the rules relating to the law, whether it be regulation laws and regulations themselves, which is lower or delegasian atribusian law. On the basis of attribution and the delegation of legislative authority belonging to the legislation in our country are the laws and regulations thereof, such as lower government regulations, presidential decree containing the regulations, ministerial decrees containing regulations, the decision of the head non-departmental government containing the rules, the decision of the director general of the department are in shape to the legislation containing the rules of regulations. Tingkat1 local regulations, regional head of the governor's decision contains the regulations that implement the provisions tingkat1 local regulations, local regulations level 2, and the decision of the regents / mayors, district heads medium containing regulations that implement the provisions of local regulations level 2 ".
Legislation has the following characteristics:
1. General and comprehensive, which thus is the opposite of the properties of specific and limited.
2. Is universal. He was created to deal with events that will come is not clear which form kekonkretannya. Therefore, it can not be formulated to cope with certain events only.
3. He mimiliki power to correct and repair itself. is common for an ordinance to include the clause that contains the possibility of penijaun back.
Based on the explanation of article 2 of Law No. 1 point. 5 year 1986 regarding the State administration of justice, legislation is all the rules having the character of binding in general that dikeluarka by people with the government representative bodies both at central and regional levels, and all decisions of administrative bodies or officials of the State, both in at central and regional levels, which also binds the public. According to article 1 point 2 of Law No.10 of 2004 on the establishment of laws and regulations, which mean the legislation is written in the form of regulatory state institutions or officials authorized and binding in general. Regulation of the binding legislation in general (Algemeen verbindend voorshcrift) also called by the term law in the sense of material (wet in materiele Zin), namely rechtvoorshcrift ieder van de overhead meth Algemeen strekking. (All written laws that bind the government generally). Based on the qualifications above legal norms, laws and regulations that are general-abstract. Words are general-abstract characterized by the following elements:
1. tijk (Regel een niet geldt slechts op een moment); time (not applicable at certain times);
2. plaats (Regel een niet geldt slechts op een plaats); place (not only berlaju at a certain place);
3. persoon (Regel een niet geldt voor slechts bepaalde persoon); people (not only applies to certain people); and
4. rectsfeit (Regel een niet geldt voor een enkel rechtfiet, maar voor zijn herhaalbaar rechtfeiten die, and wil zeggen kunnen doen voor telkens). The fact the law (not only in particular aimed at the legal facts, but for a variety of legal facts that can be repeated, in other words to deeds repeatedly).
C. Assessment of State Administration
Assessment is that in this case was born by a special administration tool based on a binding and enforceable provisions that general, with the intention of determining their rights and obligations which are subject to something legal orders, and determination are held ileh administration tool without taking into consideration the will of those who are subjected to determination it.
Menuru use provision can be divided into two, namely:
a. internal assessments are assessments that are made to hold the relationship in an environment that makes the state a tool.
b. External assessment is an assessment made to organize the relations between the tools that make it the country with a person or entity suasta or between two or more instrument of the state.
Various kinds of assessments:
a. Provisions contained in the Assembly's decision, called an assessment of MPR (S).
b. Provisions contained in the presidential decree.
c. Provisions contained in the minister's decision.
d. Provisions contained in decision PDRD.
e. Provisions contained in the decree of the head region.
f. Provisions contained in the judge's decision.
g. Assessment is contained in the legislation.
. Utrecht distinguish the provision of:
a. Positive assessment and negatife;
Generate a positive assessment of right / and who bears the liability for assessments.
Negative assessment does not lead to a change in state law
That already exist. Negative assessment can be: the statement did not
Authorization (onbevoegd-verklaring), the statement is not acceptable (nietontvankelijk
Verklaring) or a rejection (afwijzing).
b. Assessment and Assessment deklaratur stitutif kon;
Assessment deklaratur only state that this ruling (rechtsvastellende beschikking).
Assessment is to make the constitutive law (rechtscheppend).
c. Assessment and provision of permanent flash (blijvend);
- According to Prins, there are four kinds of lightning assessment: assessment which intends to change the editor (text) the old provision;
- An assessment negatife
- Withdrawal or cancellation of a statute;
- A statement execution (uitvoerbaarverklaring).
d.Dispensasi, permission (vergunning), licenses and concessions. (E. Utrecht p. 131. S.d
137).
Prajudi Atmosudirdjo distinguish two kinds of determination negatife determination (refusal) and determination positife (request granted). Negative determination applicable only once, so the request may be repeated once again.
Positive determination consisted of five groups, namely:
a. which creates a new legal situation in general:
b. which creates a new legal situation only to an object only;
c. that form or dissolve a body corporate;
d. who gave answers (kewajiaban)
e. that offers benefits. stipulation that provide benefits are:
-Dispensation: a statement of administration officials who authorized, that a specific statutory provision does not apply to the case in a letter asking someone in the government;
- Permit or vergunning: dipensasi of a ban; (?)
- License: a license for commercial and high profit;
- Concessions: the determination that allows konsensionaris granted a dispensation, permits, licenses, and also a kind of government authority that enables it to move the village, making jalanh and so forth. Therefore, granting concessions should be with caution, and calculation kewicksanaan mature-mature. (Prajudi A. in her book "fundamentals of administrative management and office management", p. 203)
Upper division and description prajudi atmosudirjo of determination (beschikking) as mentioned above there are a few things to note, namely:
a. by prajudi atmosudirjo beschikking born of a requests and in line with it in a positive setting and distinguished above negative.melihat on kepustakaannya and practice, not always beschikking born on a petition that concerned, the more "belastende beschikking"
by prajudi atmosoedirjo, permit or vergunning is "a dispensation from the ban."
\
b. The formulation of such a dispensation to grow with "permission", dispensation depart from the existing provisions essentially "prohibits" an act, otherwise "iziin" moved from one that basically does not prohibit an act but to be able to do so required a specific procedure must be passed. Dispensation is a "relazatio Regis." This means that in certain circumstances a provision of law be declared invalid for certain things.
c. According prajudi atmosdirjo, the license is a license that is komersal and bring in profits. In this formulation needs perhatiakan that the license itself is not commercial; mungkinyang in the mean is a commercial line of business and bring in profits.
Elements of Decision-D.Unsur
Some definitions of scholars, it appears there are some elements contained in beschikking, namely:
• unilateral will of the statement
• issued by a government organ
• based on the authority of laws that are public
• aimed at specific or concrete events and individual
• with the intention to create legal effect in the field of administration.
Before describing the elements of this decision, first put forward pegertian decision based on Article 2 of the Dutch Administrative Law (AWB) and under article 1 paragraph 3 of Law No. 5 of 1986 on administrative court, is as follows:
"Unilaterally written statement of the will of central government organs, to be awarded under the obligation or the authority of the State constitutional law or administrative hukam State, which meant unutuk determination, removal, or termination hubaungan existing, or create a new legal relationship, which includes refusal to place setting, change, deletion, or creation. "
Based on this definition seems there are six elements of the decision, as follows:
1. a written statement will
2. granted under the obligation or the authority of the State constitutional law or administrative law,
3. unilateral
4. by excluding the decision of a general nature
5. intended for the determination, removal, or, termination of legal relationships that already exist, or create a new legal relationship, which includes rejection, resulting in the establishment, alteration, deletion, or creation
6. derived from the organs of government.
According to Article 1 paragraph 3 of Law No. 5 of 1986, the decision is defined as: "a written determination issued by agencies or officials of state administration is based on legislation in force that is concrete, individualized, and final, which creates legal effect for someone to know the body of civil law "based on those definitions seem that KTUN have elements as follows:
1. written determination
2. issued by the agency / officer PTUN
3. based on those regulations applicable undanagn
4. is concrete, individualized, and final
5. legal consequences
6. a person or body of civil law.
E.Macam-range decisions
By teiretis in the State administrative law, known there are several kinds and nature of the decision, which follows sebagia;
• deklatarior decisions and decision-constitutive:
deklatarior decision is a decision that does not alter the rights and obligations that already exist, but just menyatakn rights and obligations (rechtvastellende beschikking). deklatarior have the nature of the decision when the decision was intended to establish a relationship megikatnya law or decision that meant recognizes existing rights sutu , whereas when the decision was melhirkan or abolish a legal relationship or a decision causing a new rights not previously owned by someone whose name is listed in that decision, then it is called as decision konstititif.
• a favorable decision and give the load:
Decisions that are beneficial means that the decision to give the rights of lightening the burden of existing atu or may not exist, while giving beba decision is a decision that laid the obligation which did not exist or decision regarding the rejection of the petition to obtain relief.
• Decision eenmalig and permanent decision:
Eenmalig decision is a decision that only apply once or cursory decisions, which in other terms referred to decisions that are lightning (vlugtige) such as building permit or permits to hold rallies, while the permanent decision is a decision which has a validity period is relatively long.
• The decision of free and bound:
The decision which is free is didasrkan decision on free power or freedom of action which is owned by the State administration officials either in the form of freedom kebijaksanaanmaupun freedom of interpretation, while the bound decision is a decision that is based on governmental authority terikatartinya this decision was only carrying out the provisions there is no adnya space of freedom for the official concerned.
• positive decision is a decision that determines rights and obligations are subject baqgi decision, while a negative decision is a decision that did not result in changes in state law that already exists.
• The decision of individuals and property peroarangan decision is a decision based on those issued by the personal qualities of a particular person or decision relating to people, just as decisions about pengankatan person or dismissal. While the decision is a decision published material on the elementary quality of material or decisions relating to objects, such as certificates of land rights.
• The terms of decision-making
Conditions that must be considered in making this decision include the requirement of material and formal requirements
A. material terms consists of:
a. The organs of government must be authorized to make decisions
b. Because the decision of a will (wilsverklaring), then the decision should not contain a lack of lack of juridical (Geen juridisce gebreke in de wilsvorming), such as fraud (bedrog), coercion (dwang) or bribery (omkoping), error (dwaling)
c. The decision should be based on specific circumstances
d. The decision must be implemented and without violating other regulations, as well as the content and purpose of that decision must be in accordance with the contents and purpose of that decision must be in accordance with the contents and purpose of basic rules.
B. Formal requirements consist of:
a. The terms of the specified connect with preparation dubuatnya decisions and connect with the way the decision was made
b. Terms berhubaung with the implementation of that decision must be fulfilled.
c. Duration must be established between the emergence of the things that led to the announcement of the decision made and it must be observed.
F. Decision of the Administrative Court
State administrative court decisions set in the Administrative Court Act article 97, which states as follows:
1). In the case of dispute the examination is complete, both parties are given the opportunity to express opinions that the last form of conclusion of each
2). After both parties argued conclusions referred to in paragraph (1), then the presiding judge stated that the siding siding postponed to allow the judges deliberation in a closed room to consider all things to the decision of the dispute.
3). Decisions in the deliberation council, led by the presiding judge tribunal is the result of unanimous agreement, except if it is pursued earnestly can not be achieved unanimous consensus, the decision taken by majority vote.
4) if the deliberation in the assembly as intended preformance in paragraph (3), unable to produce the decision, the discussion be postponed until the next council meeting
5). If in the next council meeting can not be taken the most votes, the presiding judge panel of the last vote is decisive.
6). The court's decision can be imposed on the same day in open session to the public, or postponed to another day which shall be informed on both sides.
7). The court's decision can be:
• Claims rejected
• Lawsuit granted
• Claims not accepted
• Lawsuit fall
8). In the lawsuit was granted, then the court may
Can be defined obligations to be performed by the agency or official procedure
State which issued KTUN
9). The obligation referred to in subsection (8) in the form:
• Revocation KTUN concerned; or
• Revocation KTUN accounts and issuing new KTUN; or
• Publishing KTUN in terms of the lawsuit is based on article 3.
10). Obligation referred to in subsection (9) can be accompanied loading compensation.
11). In the event that the court decision referred to in subsection (8) concerning the employment, then in addition to the obligation referred to in subsection (9) and paragraph (10) can be accompanied by the provision of rehabilitation.
G. Peradialan Competency of State Administration
Competence according to the dictionary of the Indonesian language is the authority (power) to determine (decide something.) competence of a court to examine, hear and decide a case relating to the type and level of existing courts under legislation in force. As we know that based on court jenisnyalingkungan distinguished on public courts, military courts, religious courts, state administrative court (administrative court), while based on the level of the court consists of first level courts, high courts (courts of appeal), the supreme court (court of cassation .)
There are several ways to determine the competence of a court to examine, hear, and decide sutu case: first, it can be seen from the principal disputes (geschilpunt, Fundamentum petendi), second, by making distinctions of attribution (absolute competentie or attributie van rechtmacht), third , by making distinctions of absolute competence dam relative competence.
The division of competence of attribution (absolute competentie or atrtributie van rechtsmacht) can be explained as follows:
a. Attributions related to the granting of authority that are round (absolute) of the material
Another division is the division of competence absolute and relative competence. Absolute competence is related to the judicial authority Badab what to examine, hear and decide a case; as known berdasrkan article 10 UU14/1979 we know the 4 (four), environmental justice, namely: the general justice, military justice, religious courts, and judicial administration State.
Relative competence of the court is a kind of authority which is authorized to examine, hear, and decide the case in question. In connection with the State administrative tribunal, then the relative competence is related to the State administrative authority of the courts which are authorized to examine, hear and decide the case. Is PTUN Edge of view, Surabaya, Semarang, Bandung, Jakarta, Palembang, or Medan and so forth.
Berkaitaqn with competence Administrative Court of the above, the Administrative Court Act article 77 stated:
• Exception of absolute authority of the court may be filed at any time during the examination, and although there are no exceptions regarding the absolute authority of the court if the judge knows that, because of his position he was obliged to declare that the court was not authorized to adjudicate the dispute in question.
• Exception concerning the relative authority of the court filed before submitted an answer to the main dispute, and the demurrer must be disconnected before the principal dispute examined.
• Exceptions that are not on the authority of the court can only be terminated along with the principal dispute.
Thus, the exception to the relative competence of the administrative court, the defendant must be submitted before giving an answer to the principal dispute, if an exception was made after providing an answer to the principal dispute, then the exception is no longer acceptable.
Mandate instructions given by the crowd to its representatives to conduct negotiations.
CHAPTER III
Analysis
The instrument of government that is a means or a tool used by the government in carrying out their duties concerning administrative affairs of the State or the State administration is not running as it ideally, that is not what they aspired ie, by aiming for the benefit of society. But in reality, it merely becomes an ideal of idealism only because basically that government officials are human beings who did not escape the so-called mistakes, did not escape from the wrong and sin so that in carrying out government duties are sometimes not in line with what is ideal. Although it has been determined as they should perform the duties as the proportions, according ketentuuan-regulated. But as we see in the fact that not a few State officials in this case the State administration officials who deviate from what was supposed to be, for example, decide a statute and decide it does not match properly. This should be a PR for officials of government and we as pengkritisi their performance.
CLOSING
a. Conclusion
administrastratio which means besturing or government in KBBI means, first, efforts and activities that include setting goals and establishing ways of implementation of coaching organizations and secondly, efforts and activities related to the implementation of policies and achieve goals; third, activities related to governance penyelanggaraan ; fourth, office and administrative activities.
Instrument of government is an instrument or means used by the government or administration of the State in carrying out his duties. The instruments used include alt stationery, and komonikasi transfortasi facilities, office buildings, and others who gathered in the public domain or belong to the public. Besides, the government also uses the juridical instruments in the course of organizing and running the affairs of government and society, such as legislation, decisions, including terms, types and characteristics of the judicial decision of the State administration.
In carrying out his government duties, should the government or state officials to work as what has been stipulated in a regulation will state administration. Running tasks as how to ideally.
Elements of the decisions issued by state officials as a reference in organizing and running the administration should be, the will of a written statement, given under an obligation or the authority of the State constitutional law or administrative law, is unilateral, with a decision to exclude a general nature, which meant with determination, removal, or termination of an existing legal relationship, or create a new legal relationship, which includes rejection, resulting in the establishment, alteration, deletion or creation. Derived from the organs of government.
b. Suggestion
Any government-issued kabijakan administration or State officials should, as the purpose of administrative law the State itself that is to manage, resolve and settle the affairs administrassi then issued an assessment and decision should not be deviated especially burdensome to the community. Also the government which in this case known as State officials should be what should, what kind of duties mandated to him.
Daftara library
Kansil, Legal Governance Indonesia, East Jakarta: Balai script, 1985
HR. Ridwan, State Administrative Law, London: King Grafindo PT Persada, 2011
Harahap Zairin, Law of the State Administrative Court of business, Jakarta: PT Raja Grafindo Persada, 1997
M. Philip Hadjon, Introduction to Administrative Law Indonesia, Yogyakarta: Gadjah Mada University Press, 2005.
A. ISSUE BACKGROUND
until the country functioning. The linkages between the country offices of other dama and the legal relations between positions that country and its citizens). As an overall rule hukumyang determine how to run the country as efforts to fulfill the task, or the way the ruling ituseharusnya behave in seeking out their duties).
In carrying out efforts to fulfill his duties, authority or administrative officials require what is called a tool or means that in an instrument called halini government.
The word meaning instruments facilities / equipment is better designation for an object that is concrete and abstract in order to achieve or facilitate in any activities to an achievement.
Instruments of government are instruments or facilities used by the government or the state administration in carrying out their duties. This can be either an assessment, the legal act carried the tools of government, the statement will of the tools that government in holding a special thing with the intent to make a change in the field of environmental law). By using the means or instruments such as stationery, transport communications, office buildings and others. Collected in the public domain / belongs to the public. In addition, the government also uses a variety of legal instruments in carrying out the activities set up, run the administrative affairs of society, such as legislation, decisions, decrees, and others that are useful for keadministrasian state affairs. State administrative law power to question what is owned by the government, to which the limit that power, how to prevent the government is not producing an arbitrary provisions, pursuant to the authority receives from the state administration law).
For power and control the government did not cross the line in terms of power are not out of the corridors of power usage, as well as government product regulations are not arbitrary, then a statute must meet the requirements of these assessments must meet the requirements of the State Administrative provisions as appropriate. Various kinds of assessments and decisions of the State Administration as well as how the characteristics of the Administrative Court's decision.
This certainly requires an explanation in detail in order to provide an understanding primarily to community members and government officials in order to regularity in the framework of state administration. Legislation which in this case becomes the basis or source of regulation, and competence of attribution, delegates, and mandates that are part of the embodiment of state administrative courts.
B. THE BASIC PROBLEM
Starting from a background as explained above, the formulation of the problem or what will be the group we discuss are:
a. Overview of the instrument of government
b. Legislation
c. Assessment of State business obedient, kind and requirements assessments
d. Decision of the State administration and, type and characteristic Administrative Court's decision
e. Competence: attribution, delegansi, and mandate.
B. Literature search
The discussion of the instruments of government is one of many discussions in the administration of state law that includes legislation, the provisions of state administration, including the terms and the kinds of statutes, state administrative decisions, kinds and characteristics of the decision and state administrative courts (administrative court) and competencies which include attribution, delegansi, and mandate.
In the book's Ridwan HR explained that the teorik, the term "legislation" has two meanings, first is the process of formation or the process of establishing state regulations, both at central and regional levels, secondly, all state regulations, which are the establishment of regulations, both at central and regional levels, while in the book belong to Drs. C.S.T. Kansil, SH "Legal Governance" explained that the legislation is a state regulation issued by the government to regulate and organize the general welfare of all people.
Assessment is a tool of government decision-something (in the broad sense) whose contents are not located within the field of drafting legislation, police and courts, while in the book Nedharlands Bestuursrecht, by Donner diperkenalhan any other definition which reads: "The assessment is the act of government that are held by a public office which in some way be multifaceted one deliberately affirm a legal relationship or a state law that already exist, or that raises a legal relationship or a new legal situation, or reject it. "
Kinds of provisions as contained in the book miilik father of Drs. C.S.T. Kansil, that the provisions contained in the Assembly, Presidential, the decision of ministers, parliament's decision, the decision of local leaders, judges decision, and the law.
The decision is a product of good government issued a decree, or other issues related to disputes related problems in a country's citizens in administrative affairs. This decision is a statement of the organs of government kehindak to (implement) a special case, ditunjikan to create a new legal relationship, change or delete the existing legal relationships).
Regulations in the state administration is a goal ketidaklainan with the existence of a determination resulting in a verdict that the goal to meet or to an achievement of welfare for the people.
C. METHODOLOGY APPROACH
formulate this task is the use of the method "search in the library" A search is also more objective and scientific activities in accordance with the fact we need a method appropriate to the issues being discussed, the method we use in the book at your nearest book-lending center, in order to find the completeness of the information needed about the instruments of government.
CHAPTER II
PAMBAHASAN
A. An overview of instruments of government.
Instrument of government in the mean in this case are the tools or facilities are in ginakan by the government or administration of the State in carrying out his duties. In performing the duties of government, government or state administration perform a variety of legal action, using the means or instruments such as stationery, transport and communication facilities, office buildings, and others. Collected in the public domain or belong to the public. In addition, the government also uses a variety of legal instruments in the course of organizing and running the affairs of government and society, such as legislation, decisions, regulations, policies, licensing, civil law instruments, and so forth. In this chapter the description further in limiting the legal instrument made in basic and used by the government in carrying out its duties and kewenagannya.
Before describing the various legal instruments used by the government in carrying out the acts of government, first needs to make about the structure of legal norms in the State administration, which can be made as a tool in understanding the legal instruments of government. Regarding the view structure of this state administrative law norms, HD van Wijk / Willem Konijnebelt mengatakn as follows:
"Meteriele het voor het recht geeft voorchriften mensenlijk handelen. Deze voorschriften, normen, hebben, in Had administrative recht een Andere mestal and in het privaatrecht structuur en in het strfrecht. Daar vindt men (wat betreft het recht geschreven) de norm doorgaans rechtstreeks in de Wet "
"Maar in het bestuursrecht vindt de normstelling heel vaak plaats in twee of Meer fasen; to Moet een van rechtregels raadplegen samenstel om te erachter comments waar men aan toe is"
(Material law regulate human behavior. Regulations, norms, within the State administrative law has a different structure than the structure of the norm in civil law and criminal law. In a civil or criminal law, we find directly the norms about what is in the set {in written law } in the law. In the State administrative law norms structures found in various places and in two or more levels; there we must find a norm on the tiers of legal regulation)
Legal norms contained in civil or criminal law can be found easily in certain articles, such as the provision of what is a homicide or a treaty, while to find the norm in the law of the State administration must be sought in all relevant legislation since the highest level and nature general-abstract to the most low-concrete individual. According to Indro Harto, that in the atmosphere of the State administrative law that we are facing terraced level legal norms should be noted. That is, the rule of law which must be applied not just be found in the law, but in a combination of regulations and decisions of the State administration with each other interrelated Indroharto further states that:
1. overall norms of the State administrative law in a society that has graded structure from the very general who conceived in the MPR, Law, and so on until the norm of the most individual and concrete contained in a written determination (beschikking), so a written determination that can also contain a rule of law as well as on a general rule.
2. establishment of legal norms in a society the State administration was not only done by the legislators (legislative power) and judicial bodies, but also by government officials in this agency or office of the State administration.
B. Legislation.
Regulation is a law in abstracto or binding norm general public (generally accepted) and its task is to Manage the things ayang general nature (general). in toretik, istialah "legislation" (legislation, wetgeving, or gesetzgebung) has two senses, yaiyu: first, legislation is peruses the formation / process of establishing the State regulations, both at central and regional levels; second, are all the laws and regulations of State, which is the result of the establishment of regulations, both at central and regional levels. with respect to the law, A. Hamid S. Attamimi wrote as follows. The terms of legislation (wettelijkeregels) literally can mean the rules relating to the law, whether it be regulation laws and regulations themselves, which is lower or delegasian atribusian law. On the basis of attribution and the delegation of legislative authority belonging to the legislation in our country are the laws and regulations thereof, such as lower government regulations, presidential decree containing the regulations, ministerial decrees containing regulations, the decision of the head non-departmental government containing the rules, the decision of the director general of the department are in shape to the legislation containing the rules of regulations. Tingkat1 local regulations, regional head of the governor's decision contains the regulations that implement the provisions tingkat1 local regulations, local regulations level 2, and the decision of the regents / mayors, district heads medium containing regulations that implement the provisions of local regulations level 2 ".
Legislation has the following characteristics:
1. General and comprehensive, which thus is the opposite of the properties of specific and limited.
2. Is universal. He was created to deal with events that will come is not clear which form kekonkretannya. Therefore, it can not be formulated to cope with certain events only.
3. He mimiliki power to correct and repair itself. is common for an ordinance to include the clause that contains the possibility of penijaun back.
Based on the explanation of article 2 of Law No. 1 point. 5 year 1986 regarding the State administration of justice, legislation is all the rules having the character of binding in general that dikeluarka by people with the government representative bodies both at central and regional levels, and all decisions of administrative bodies or officials of the State, both in at central and regional levels, which also binds the public. According to article 1 point 2 of Law No.10 of 2004 on the establishment of laws and regulations, which mean the legislation is written in the form of regulatory state institutions or officials authorized and binding in general. Regulation of the binding legislation in general (Algemeen verbindend voorshcrift) also called by the term law in the sense of material (wet in materiele Zin), namely rechtvoorshcrift ieder van de overhead meth Algemeen strekking. (All written laws that bind the government generally). Based on the qualifications above legal norms, laws and regulations that are general-abstract. Words are general-abstract characterized by the following elements:
1. tijk (Regel een niet geldt slechts op een moment); time (not applicable at certain times);
2. plaats (Regel een niet geldt slechts op een plaats); place (not only berlaju at a certain place);
3. persoon (Regel een niet geldt voor slechts bepaalde persoon); people (not only applies to certain people); and
4. rectsfeit (Regel een niet geldt voor een enkel rechtfiet, maar voor zijn herhaalbaar rechtfeiten die, and wil zeggen kunnen doen voor telkens). The fact the law (not only in particular aimed at the legal facts, but for a variety of legal facts that can be repeated, in other words to deeds repeatedly).
C. Assessment of State Administration
Assessment is that in this case was born by a special administration tool based on a binding and enforceable provisions that general, with the intention of determining their rights and obligations which are subject to something legal orders, and determination are held ileh administration tool without taking into consideration the will of those who are subjected to determination it.
Menuru use provision can be divided into two, namely:
a. internal assessments are assessments that are made to hold the relationship in an environment that makes the state a tool.
b. External assessment is an assessment made to organize the relations between the tools that make it the country with a person or entity suasta or between two or more instrument of the state.
Various kinds of assessments:
a. Provisions contained in the Assembly's decision, called an assessment of MPR (S).
b. Provisions contained in the presidential decree.
c. Provisions contained in the minister's decision.
d. Provisions contained in decision PDRD.
e. Provisions contained in the decree of the head region.
f. Provisions contained in the judge's decision.
g. Assessment is contained in the legislation.
. Utrecht distinguish the provision of:
a. Positive assessment and negatife;
Generate a positive assessment of right / and who bears the liability for assessments.
Negative assessment does not lead to a change in state law
That already exist. Negative assessment can be: the statement did not
Authorization (onbevoegd-verklaring), the statement is not acceptable (nietontvankelijk
Verklaring) or a rejection (afwijzing).
b. Assessment and Assessment deklaratur stitutif kon;
Assessment deklaratur only state that this ruling (rechtsvastellende beschikking).
Assessment is to make the constitutive law (rechtscheppend).
c. Assessment and provision of permanent flash (blijvend);
- According to Prins, there are four kinds of lightning assessment: assessment which intends to change the editor (text) the old provision;
- An assessment negatife
- Withdrawal or cancellation of a statute;
- A statement execution (uitvoerbaarverklaring).
d.Dispensasi, permission (vergunning), licenses and concessions. (E. Utrecht p. 131. S.d
137).
Prajudi Atmosudirdjo distinguish two kinds of determination negatife determination (refusal) and determination positife (request granted). Negative determination applicable only once, so the request may be repeated once again.
Positive determination consisted of five groups, namely:
a. which creates a new legal situation in general:
b. which creates a new legal situation only to an object only;
c. that form or dissolve a body corporate;
d. who gave answers (kewajiaban)
e. that offers benefits. stipulation that provide benefits are:
-Dispensation: a statement of administration officials who authorized, that a specific statutory provision does not apply to the case in a letter asking someone in the government;
- Permit or vergunning: dipensasi of a ban; (?)
- License: a license for commercial and high profit;
- Concessions: the determination that allows konsensionaris granted a dispensation, permits, licenses, and also a kind of government authority that enables it to move the village, making jalanh and so forth. Therefore, granting concessions should be with caution, and calculation kewicksanaan mature-mature. (Prajudi A. in her book "fundamentals of administrative management and office management", p. 203)
Upper division and description prajudi atmosudirjo of determination (beschikking) as mentioned above there are a few things to note, namely:
a. by prajudi atmosudirjo beschikking born of a requests and in line with it in a positive setting and distinguished above negative.melihat on kepustakaannya and practice, not always beschikking born on a petition that concerned, the more "belastende beschikking"
by prajudi atmosoedirjo, permit or vergunning is "a dispensation from the ban."
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b. The formulation of such a dispensation to grow with "permission", dispensation depart from the existing provisions essentially "prohibits" an act, otherwise "iziin" moved from one that basically does not prohibit an act but to be able to do so required a specific procedure must be passed. Dispensation is a "relazatio Regis." This means that in certain circumstances a provision of law be declared invalid for certain things.
c. According prajudi atmosdirjo, the license is a license that is komersal and bring in profits. In this formulation needs perhatiakan that the license itself is not commercial; mungkinyang in the mean is a commercial line of business and bring in profits.
Elements of Decision-D.Unsur
Some definitions of scholars, it appears there are some elements contained in beschikking, namely:
• unilateral will of the statement
• issued by a government organ
• based on the authority of laws that are public
• aimed at specific or concrete events and individual
• with the intention to create legal effect in the field of administration.
Before describing the elements of this decision, first put forward pegertian decision based on Article 2 of the Dutch Administrative Law (AWB) and under article 1 paragraph 3 of Law No. 5 of 1986 on administrative court, is as follows:
"Unilaterally written statement of the will of central government organs, to be awarded under the obligation or the authority of the State constitutional law or administrative hukam State, which meant unutuk determination, removal, or termination hubaungan existing, or create a new legal relationship, which includes refusal to place setting, change, deletion, or creation. "
Based on this definition seems there are six elements of the decision, as follows:
1. a written statement will
2. granted under the obligation or the authority of the State constitutional law or administrative law,
3. unilateral
4. by excluding the decision of a general nature
5. intended for the determination, removal, or, termination of legal relationships that already exist, or create a new legal relationship, which includes rejection, resulting in the establishment, alteration, deletion, or creation
6. derived from the organs of government.
According to Article 1 paragraph 3 of Law No. 5 of 1986, the decision is defined as: "a written determination issued by agencies or officials of state administration is based on legislation in force that is concrete, individualized, and final, which creates legal effect for someone to know the body of civil law "based on those definitions seem that KTUN have elements as follows:
1. written determination
2. issued by the agency / officer PTUN
3. based on those regulations applicable undanagn
4. is concrete, individualized, and final
5. legal consequences
6. a person or body of civil law.
E.Macam-range decisions
By teiretis in the State administrative law, known there are several kinds and nature of the decision, which follows sebagia;
• deklatarior decisions and decision-constitutive:
deklatarior decision is a decision that does not alter the rights and obligations that already exist, but just menyatakn rights and obligations (rechtvastellende beschikking). deklatarior have the nature of the decision when the decision was intended to establish a relationship megikatnya law or decision that meant recognizes existing rights sutu , whereas when the decision was melhirkan or abolish a legal relationship or a decision causing a new rights not previously owned by someone whose name is listed in that decision, then it is called as decision konstititif.
• a favorable decision and give the load:
Decisions that are beneficial means that the decision to give the rights of lightening the burden of existing atu or may not exist, while giving beba decision is a decision that laid the obligation which did not exist or decision regarding the rejection of the petition to obtain relief.
• Decision eenmalig and permanent decision:
Eenmalig decision is a decision that only apply once or cursory decisions, which in other terms referred to decisions that are lightning (vlugtige) such as building permit or permits to hold rallies, while the permanent decision is a decision which has a validity period is relatively long.
• The decision of free and bound:
The decision which is free is didasrkan decision on free power or freedom of action which is owned by the State administration officials either in the form of freedom kebijaksanaanmaupun freedom of interpretation, while the bound decision is a decision that is based on governmental authority terikatartinya this decision was only carrying out the provisions there is no adnya space of freedom for the official concerned.
• positive decision is a decision that determines rights and obligations are subject baqgi decision, while a negative decision is a decision that did not result in changes in state law that already exists.
• The decision of individuals and property peroarangan decision is a decision based on those issued by the personal qualities of a particular person or decision relating to people, just as decisions about pengankatan person or dismissal. While the decision is a decision published material on the elementary quality of material or decisions relating to objects, such as certificates of land rights.
• The terms of decision-making
Conditions that must be considered in making this decision include the requirement of material and formal requirements
A. material terms consists of:
a. The organs of government must be authorized to make decisions
b. Because the decision of a will (wilsverklaring), then the decision should not contain a lack of lack of juridical (Geen juridisce gebreke in de wilsvorming), such as fraud (bedrog), coercion (dwang) or bribery (omkoping), error (dwaling)
c. The decision should be based on specific circumstances
d. The decision must be implemented and without violating other regulations, as well as the content and purpose of that decision must be in accordance with the contents and purpose of that decision must be in accordance with the contents and purpose of basic rules.
B. Formal requirements consist of:
a. The terms of the specified connect with preparation dubuatnya decisions and connect with the way the decision was made
b. Terms berhubaung with the implementation of that decision must be fulfilled.
c. Duration must be established between the emergence of the things that led to the announcement of the decision made and it must be observed.
F. Decision of the Administrative Court
State administrative court decisions set in the Administrative Court Act article 97, which states as follows:
1). In the case of dispute the examination is complete, both parties are given the opportunity to express opinions that the last form of conclusion of each
2). After both parties argued conclusions referred to in paragraph (1), then the presiding judge stated that the siding siding postponed to allow the judges deliberation in a closed room to consider all things to the decision of the dispute.
3). Decisions in the deliberation council, led by the presiding judge tribunal is the result of unanimous agreement, except if it is pursued earnestly can not be achieved unanimous consensus, the decision taken by majority vote.
4) if the deliberation in the assembly as intended preformance in paragraph (3), unable to produce the decision, the discussion be postponed until the next council meeting
5). If in the next council meeting can not be taken the most votes, the presiding judge panel of the last vote is decisive.
6). The court's decision can be imposed on the same day in open session to the public, or postponed to another day which shall be informed on both sides.
7). The court's decision can be:
• Claims rejected
• Lawsuit granted
• Claims not accepted
• Lawsuit fall
8). In the lawsuit was granted, then the court may
Can be defined obligations to be performed by the agency or official procedure
State which issued KTUN
9). The obligation referred to in subsection (8) in the form:
• Revocation KTUN concerned; or
• Revocation KTUN accounts and issuing new KTUN; or
• Publishing KTUN in terms of the lawsuit is based on article 3.
10). Obligation referred to in subsection (9) can be accompanied loading compensation.
11). In the event that the court decision referred to in subsection (8) concerning the employment, then in addition to the obligation referred to in subsection (9) and paragraph (10) can be accompanied by the provision of rehabilitation.
G. Peradialan Competency of State Administration
Competence according to the dictionary of the Indonesian language is the authority (power) to determine (decide something.) competence of a court to examine, hear and decide a case relating to the type and level of existing courts under legislation in force. As we know that based on court jenisnyalingkungan distinguished on public courts, military courts, religious courts, state administrative court (administrative court), while based on the level of the court consists of first level courts, high courts (courts of appeal), the supreme court (court of cassation .)
There are several ways to determine the competence of a court to examine, hear, and decide sutu case: first, it can be seen from the principal disputes (geschilpunt, Fundamentum petendi), second, by making distinctions of attribution (absolute competentie or attributie van rechtmacht), third , by making distinctions of absolute competence dam relative competence.
The division of competence of attribution (absolute competentie or atrtributie van rechtsmacht) can be explained as follows:
a. Attributions related to the granting of authority that are round (absolute) of the material
Another division is the division of competence absolute and relative competence. Absolute competence is related to the judicial authority Badab what to examine, hear and decide a case; as known berdasrkan article 10 UU14/1979 we know the 4 (four), environmental justice, namely: the general justice, military justice, religious courts, and judicial administration State.
Relative competence of the court is a kind of authority which is authorized to examine, hear, and decide the case in question. In connection with the State administrative tribunal, then the relative competence is related to the State administrative authority of the courts which are authorized to examine, hear and decide the case. Is PTUN Edge of view, Surabaya, Semarang, Bandung, Jakarta, Palembang, or Medan and so forth.
Berkaitaqn with competence Administrative Court of the above, the Administrative Court Act article 77 stated:
• Exception of absolute authority of the court may be filed at any time during the examination, and although there are no exceptions regarding the absolute authority of the court if the judge knows that, because of his position he was obliged to declare that the court was not authorized to adjudicate the dispute in question.
• Exception concerning the relative authority of the court filed before submitted an answer to the main dispute, and the demurrer must be disconnected before the principal dispute examined.
• Exceptions that are not on the authority of the court can only be terminated along with the principal dispute.
Thus, the exception to the relative competence of the administrative court, the defendant must be submitted before giving an answer to the principal dispute, if an exception was made after providing an answer to the principal dispute, then the exception is no longer acceptable.
Mandate instructions given by the crowd to its representatives to conduct negotiations.
CHAPTER III
Analysis
The instrument of government that is a means or a tool used by the government in carrying out their duties concerning administrative affairs of the State or the State administration is not running as it ideally, that is not what they aspired ie, by aiming for the benefit of society. But in reality, it merely becomes an ideal of idealism only because basically that government officials are human beings who did not escape the so-called mistakes, did not escape from the wrong and sin so that in carrying out government duties are sometimes not in line with what is ideal. Although it has been determined as they should perform the duties as the proportions, according ketentuuan-regulated. But as we see in the fact that not a few State officials in this case the State administration officials who deviate from what was supposed to be, for example, decide a statute and decide it does not match properly. This should be a PR for officials of government and we as pengkritisi their performance.
CLOSING
a. Conclusion
administrastratio which means besturing or government in KBBI means, first, efforts and activities that include setting goals and establishing ways of implementation of coaching organizations and secondly, efforts and activities related to the implementation of policies and achieve goals; third, activities related to governance penyelanggaraan ; fourth, office and administrative activities.
Instrument of government is an instrument or means used by the government or administration of the State in carrying out his duties. The instruments used include alt stationery, and komonikasi transfortasi facilities, office buildings, and others who gathered in the public domain or belong to the public. Besides, the government also uses the juridical instruments in the course of organizing and running the affairs of government and society, such as legislation, decisions, including terms, types and characteristics of the judicial decision of the State administration.
In carrying out his government duties, should the government or state officials to work as what has been stipulated in a regulation will state administration. Running tasks as how to ideally.
Elements of the decisions issued by state officials as a reference in organizing and running the administration should be, the will of a written statement, given under an obligation or the authority of the State constitutional law or administrative law, is unilateral, with a decision to exclude a general nature, which meant with determination, removal, or termination of an existing legal relationship, or create a new legal relationship, which includes rejection, resulting in the establishment, alteration, deletion or creation. Derived from the organs of government.
b. Suggestion
Any government-issued kabijakan administration or State officials should, as the purpose of administrative law the State itself that is to manage, resolve and settle the affairs administrassi then issued an assessment and decision should not be deviated especially burdensome to the community. Also the government which in this case known as State officials should be what should, what kind of duties mandated to him.
Daftara library
Kansil, Legal Governance Indonesia, East Jakarta: Balai script, 1985
HR. Ridwan, State Administrative Law, London: King Grafindo PT Persada, 2011
Harahap Zairin, Law of the State Administrative Court of business, Jakarta: PT Raja Grafindo Persada, 1997
M. Philip Hadjon, Introduction to Administrative Law Indonesia, Yogyakarta: Gadjah Mada University Press, 2005.
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