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Name : Rizky Noor Fajrina

NIM : 8111416329

MID TERM EXAM

Subject : Administrative Law Advance

Lecturers : Drs. Sartono Sahlan M.H., dan Riska Alkadri S.H., M.H.

Type : Take Home

Time : Tuesday, 12 May 2018 at 1 PM (13.00) in K3.207 room.

Directions:

- In this type of questions, you are allowed to use both bahasa Indonesia or English in
answering the questions. If you use Bahasa Indonesia, please make at least two paragraphs
in English as a summary of your answer in each questions. If you use English, you don’t have
to make a summary.
- You are also allowed to use any references such as book, article, dictionary, journal, research
report, law, official website. Insert those references in each answers.
- The answer should be typed using the computer and according to the specified word limit.

Questions:

1. A former director of a Regional Owned Enterprise is caught in a corruption case because he


had signed a sale of a regional asset in his capacity as a director, even when he was named
as a suspect, it was known that the flow of that funds did not go to him. According to this
case, do you agree that administrative errors can be considered as corrupt behavior. How is
your analysis of this case? Explain! (At least 700 words)

2. A Civil Apparatus/ servant (ASN) with C as his initial name got fired due to committed an
affair. If C is not satisfied with the decision of it, what legal remedies can he take? Explain his
legal efforts based on his legal basis! (At least 350 words)

3. A professor at a university has been shown to have plagiarized. Is that action form of
maladministration? What is the role of the ombudsman in solving this case? Explain it based
on legal basis! (At least 700 words)

*Good Luck*
1. A former director of a Regional Owned Enterprise is caught in a corruption case because
he had signed a sale of a regional asset in his capacity as a director, even when he was
named as a suspect, it was known that the flow of that funds did not go to him. According
to this case, do you agree that administrative errors can be considered as corrupt
behavior. How is your analysis of this case?

Answer:

From a legal point of view, the criminal act of corruption outlines the following elements:

 Act against the law


 Abuse of authority, opportunity, or means,
 Enrich yourself, others, or corporations, and
 Harm the state finance or the economy of the country

Then the problem is the State apparatus to do acts that are considered to abuse the
authority and against the law, meaning which one will be used as a test for deviation of this
State apparatus. State administrative law or criminal law, especially in cases of corruption.
From the point of view of the acquisition of authority and responsibility for the exercise of
authority under the laws of the State administration can be distinguished as follows:

a. Authority derived or derived by means of attribution, which is the authority directly


granted by laws and regulations. For example authority, Regent, Treasurer.
b. Authority derived or obtained by means of delegation, namely the authority gained
from the delegation or transfer of authority from the delegate to the delegate. Since
the authority has been delegated then the delegans no longer have such authority and
the responsibilities of the delegataris. In the delegation is not intended delegation of
authority from superiors to subordinates.
c. Authority obtained by means of a vacuum, that is, the authority that the mandate
recipient receives is only limited to exercise such authority on behalf of the mandator.
In manadat the responsibility for the exercise of authority is still the responsibility of
the giver.

Understanding of abuse of authority in administrative law can be interpreted in 3 forms,


namely:
a. Misuse of authority to perform acts contrary to the public interest or to benefit private,
group or group interests.
b. Misuse of authority in the sense that the official's actions are rightly intended for the
public interest, but deviate from what purpose the authority is omitted by law or other
regulations,
c. Misuse of authority in the sense of misusing prosudur that should be used to achieve a
particular purpose, but has used other procedures to be implemented.

This form of abuse of authority is often used by law enforcers to criminalize forms of acts
in the domain of state administrative law competence and civil law as corrupt. But does it
simply conclude that a policymaker who, when taking a policy based on his position, has in
fact violated laws or regulations or violates established procedures (SOPs) and consequently
has harmed the state has committed a criminal act of corruption? The criminal law places the
enforcement of the law (Article 50 of Criminal Code), the order of office (Article 51 verse (1)
of the Criminal Code), and implements an unlawful job order with good intent (Article 51
verse (2) of the Criminal Code) In qualification "can not be punished" because it belongs to
the basic group of criminal denial. This means that in criminal law, the responsibilities of
office and personal responsibility are also separated. The separation is constructed in the form
of: unacceptable deeds, insofar as in the qualification of office responsibilities.

The responsibilities of officials in performing their functions are differentiated between


the responsibilities of office and personal responsibility, the differences bring different
consequences in relation to criminal responsibility responsibility, civil liability and State
administrative accountability (TUN).

a. Criminal liability is personal responsibility. In the act of government the personal


responsibility of an official relates to the existence of maladministration that is the
disgraceful act of an official in the form of an act of abuse of authority or an
officer using his / her authority for any other purpose that deviates from the
purpose which has been given to that authority.
b. Civil liability in relation to unlawful acts by authorities
c. The TUN sued is the job liability.

So basically an administrative error can not be justified criminally. However, if the


mismanagement is deliberate and consciously detrimental to the State's finances and done by
enriching / benefiting oneself or other people, it is a place of illegal nature of corruption. In
relation to the criminal law of corruption, especially Articles 2 and 3 of UUPTPK,
administrative violations may constitute the place or cause of the unlawful nature of the act, if
the element is intentional, to benefit themselves by abusing the power of office, thereby
losing the state's finances or reconstruction. Such qualifying administrative conduct
constitutes criminal liability.

2. A Civil Apparatus/ servant (ASN) with C as his initial name got fired due to committed an
affair. If C is not satisfied with the decision of it, what legal remedies can he take? Explain his
legal efforts based on his legal basis!

Answer:

Government Regulation (PP) No. 53 of 2010 on Civil Servant Discipline (PNS). In


Article 3, paragraph 6 and paragraph 9 states that "civil servants are obliged to uphold the
honor of the state, Government, and dignity of civil servants and work honestly, orderly,
meticulous, and eager for the sake of the country" because civil servants are civil state
apparatuses, should be able to be exemplary and imitated by society. Basically, there are
several levels and types of disciplinary punishment.

The level of disciplinary punishment consists of:

a. Light disciplinary punishment:


1. Oral reprimands;
2. Written warning; and
3. Statement of dissatisfaction in writing
b. Medium disciplinary punishment:
1. Delay of periodic salary increase for 1 (one) year;
2. Postponement of promotion for 1 (one) year;
3. Lower rank demotion for 1 (one) year
c. Severe disciplinary punishment:
1. Lower rank demotion for 3 (three) years;
2. Displacement in the case of lower-level job descent;
3. Exemption from office;
4. Dismissal with respect not on their own request as civil servant; and
5. Dismissal not with respect as civil servants.
Then what if C is not satisfied with the decision (he/she dismissal). Each disciplinary
punishment stipulated by the decision of the authorized officials to punish. The decision shall
be conveyed in a closed manner by the competent authority of the prosecutor or other
appointed official to the civil servant concerned and copies shall be submitted to the official
of the relevant institution. Submission of disciplinary punishment shall be done no later than
14 working days after the decision is made. According Settlement of Disputes under Law No.
5 of 2014 on State Civil Apparatus Article 129 paragraph (1) and paragraph (2)
administrative efforts can be made, if the civil servant does not agree with the decision of
officials related to disciplinary violations of civil servants, which consists of:

a. Objections; and
b. Administrative appeals

1. Objection

The disciplinary penalty for which administrative objection may be filed is a disciplinary
penalty in the form of postponement of a one-year periodic salary increase or a 1-year
promotional postponement imposed by:

a. Echelon I structural officials and equivalent officials down;


b. Regional Secretary / Structural Official echelon II of Regency / Municipality down /
Official equivalent down;
c. Echelon II structural officials downward in vertical institutions and units with other
names whose immediate superior is the echelon I structural official who is not the
Civil Service Officer; and
d. Echelon II downward structural officials in vertical institutions and Provincial
Representative Offices and units equivalent to other titles under and accountable to
Civil Service Officers.

The process:

a. The objection shall be filed in writing to the superior of the competent authority to
punish by reasoning of the objection and the copy shall be submitted to the competent
authority. The objection is filed within 14 days, starting from the date of receipt of the
disciplinary punishment decision.
b. The officer who is authorized to punish, shall respond to the objection filed by the
civil servant concerned. The response shall be submitted in writing to the superior of
the Official, within 6 (six) working days from the date of receipt of a copy of the
objection letter.
c. The employer's supervisor must make a decision on the objection filed by the civil
servant within 21 working days from the date of receipt of the objection letter.
d. In the event that the official in charge of the punishment does not respond to the
objection, the officer's superior shall make a decision based on the available data. The
superior officer of the punitive authority may summon and / or request information
from a duly authorized official, a disciplinary civil servant, and / or other parties
deemed necessary.
e. The Officer's Officer in charge of punishment may reinforce, mitigate, exacerbate, or
annul the disciplinary punishment imposed by a punitive authority determined by the
decision of the Official of the Chief Authority to punish.
f. The decision of the superior officer in charge of the punishment is final and binding.
If within a period of more than 21 working days the superior of the competent
authority to punish does not make a decision on the objection, then the decision of the
competent authority shall be punishable by law.

2. Administrative Appeals

You may file an administrative appeal if you are subjected to severe discipline:

a. Dismissal with respect not on their own request as civil servant; and
b. Dismissal not with respect as civil servants.

An administrative appeal legal action is submitted to the Employment Advisory Board.


Government Regulation No 24 Year 2011 Concerning Employment Advisory Body Chapter
IV concerning Administrative Appeals may be submitted in writing to BAPEK and copies
shall be submitted to Personnel Officer or Governor as the Government Representative
containing the reasons and / or proof of rebuttal. It shall be submitted no later than 14
(fourteen) days, from the date the disciplinary decision letter is received. Approved
administrative overrides are unacceptable. Personnel Officer or Governor as the Government
Representative shall respond and / or evidence of disciplinary violation submitted to BAPEK
no later than 21 working days from the date of receipt of administrative appeal copy.

If the Civil Service Officer or Governor as the Government Representative does not
respond BAPEK takes a decision on the administrative appeal based on available evidence.
BAPEK is obliged to examine and make decision within 180 days of receipt of administrative
appeal. BAPEK in making decisions implemented through the trial BAPEK. Decisions of the
BAPEK shall be submitted to the civil servant applying for administrative appeals, the
Officer of the Personnel or the Governor as the Government Representative, and other
relevant Officials.

If the administrative legal action (objection and / or administrative appeal) has been taken and
the party still remains unsatisfied, then the matter can be sued and submitted to the State
Administrative Court.

3. A professor at a university has been shown to have plagiarized. Is that action form of
maladministration? What is the role of the ombudsman in solving this case? Explain it based on
legal basis!

Answer :

Maladministration pursuant to Law Number 37 Year 2008 regarding the


Ombudsman of the Republic of Indonesia shall be construed as a behavior or act unlawfully,
transcending authority, exercising authority for other purposes of the purpose of such powers,
including negligence or waiver of legal obligations in the conduct of public services carried
out by the State Organizer and the government causing material and / or immaterial damages
to the community and to individuals. The most common forms of deeds that include
maladministration are procrastination, abuse of authority, procedural deviations, neglect of
legal obligations, non-transparency, negligence, discrimination, unprofessional, obscure
information, arbitrary acts, legal uncertainty, and mismanagement.

The Ombudsman is a state institution which has the authority to oversee the
implementation of public services both organized by state and government operators
including those held by State-Owned Enterprises, Regional Government Enterprises and
State-Owned Legal Entities as well as private bodies or individuals assigned to perform
certain public services which part or all of its funds are sourced from the state budget and / or
regional revenue and expenditure budget.

According to Article 24 of Law 37/2008 The report to Ombudsman must meet the following
requirements:
1. Contains the full name, place and date of birth, marital status, occupation, and full
address of the Reporting Party
2. Contains details of events, actions or decisions reported in detail; and
3. Has submitted the Report directly to the Reported Party or its supervisor, but the
Report did not get the settlement properly.

Then the Ombudsman checks the report and if there is a deficiency the Ombudsman
notifies in writing to the Reporting Entity to complete the Report. The Reporting Party within
30 days from the date on which the Reporting Party receives notice from the Ombudsman
must complete the Report file. And if not complete the report the reporter is considered to
revoke the report. After examining the Ombudsman immediately conduct substantive
examination. Based on the results of substantive examination the Ombudsman may establish
that the Ombudsman:

1. not authorized to continue the examination


2. authorized to continue the examination

If the ombudsman is not authorized to continue the Ombudsman notifies in writing to


the Reporting Party within 7 days from the date of inspection result signed by the Chairman
of the Ombudsman. The Notice may include advice to the Reporting Entity to submit its
Report to other authorized agencies. And if the competent Ombudsman in conducting the
examination may:

1. to call in writing the Reported Party, witness, expert, and / or translator for
questioning
2. requesting a written explanation to the Reported Party; and / or
3. conduct a field inspection.

The Ombudsman in conducting a substantive examination can view the original


document and request a copy of the document relating to the examination. In examining the
Report, the Ombudsman shall be guided by the principle of independent, non-discriminatory,
impartial, and free of charge. And also the Ombudsman must listen and consider the opinion
of the parties and facilitate Reporter in conveying his explanation. In the event that the
Reported Party and the witness have been summoned 3 times in a row not fulfilling the call
with valid reason, the Ombudsman may request the assistance of the Police of the Republic of
Indonesia to present the concerned person by force. The Ombudsman may order witnesses,
experts, and interpreters to swear an oath or appointment before giving testimony and / or
performing their duties. In the event that the Ombudsman requests a written explanation to
the Reported Party, it must provide a written explanation within 14 days from the date of
receipt of the explanatory request. If within no later than 14 days the Reported Party does not
give explanation in writing, the Ombudsman for the second time requests a written
explanation to the Reported Party. And if it still does not answer then it is deemed not to use
the right to answer. In conducting the field inspection, the Ombudsman may conduct
inspection to the object of public service without prior notice to the official or agency
reported by observing the provisions of legislation, order and morals.

The Ombudsman receives the Report and provides the Recommendation in the event
that Maladministration is found. Recommendations include at least:

1. a description of the Report submitted to the Ombudsman


2. description of the results of the examination
3. Maladministration forms that have occurred
4. Ombudsman's conclusions and opinions on matters that need to be
implemented by the Reported Party and the Reported Party's superiors.
5. The recommendation as referred to in paragraph (2) shall be submitted to
Reported Party, Reported Party and Reported Party's boss within no later than
14 (fourteen) days since the date of Recommendation signed by the Chairman
of Ombudsman.

The Reported Party and the superior of the Reported Party are obliged to implement
the Ombudsman's Recommendation. The boss of the Reported Party shall submit a report to
the Ombudsman on the implementation of the Recommendation which has been done along
with the result of the examination within no later than 60 days from the date of receipt of the
Recommendation. The Ombudsman may request information from the Reported Party and /
or its supervisor and conduct a field inspection to ensure the implementation of the
Recommendation. In the event that the Reported Party and the boss of the Reported Party do
not implement the Recommendation or only partially perform the Recommendation for
reasons unacceptable to the Ombudsman, the Ombudsman may publish the Reported Party's
superiors who do not implement Recommendations and submit reports to the House of
Representatives and the President. The Reported Party and the superior of the Reported Party
violating the regulation shall be subject to administrative sanction in accordance with the
provisions of the law. Then the ombudsman's role follows up the Report covered within the
scope of the Ombudsman's authority and conducts an investigation on his own initiative
against alleged Maladministration. So it is the duty of the ombudsman to investigate whether
there really is a plagiarism element.