Legal Literacy - In administering governmental administration, state administrative officials possess administrative authority based on attribution, delegation, and mandate.
The Emergence of Administrative Authority
When government officials are involved in administering governance, they are able to act based on the authority vested in them. The existence of authority is important because it gives legitimacy to officials to act.
In the context of governmental administration, the government officials involved are state administrative officials along with the administrative authority that legitimizes them. Administrative authority makes the actions of state administrative officials have a valid basis, at least from the perspective of state administrative law.
Quote from Ridwan HR, in his book entitled State Administrative Law, summarizing the opinions of several legal experts who essentially identify authority as something close to power. Authority enables each party to have the power to act. In a democratic country, authority is recognized as one manifestation of power that is limited by certain corridors.
When linked to the context of state administration, authority is identical to the power possessed by state administrative officials to be involved in the administration of government. However, this authority is limited by every instrument that primarily contains legal rules in the field of government administration.
In Indonesia, the recognition of administrative authority and its limitations can be found in several laws and regulations in the field of government administration. The most important regulation is Law Number 30 of 2014 concerning Government Administration ("Government Administration Law").
Essentially, according to the Government Administration Law, authority is the power possessed by government officials to act in the administration of government. When associated with government administration, authority becomes "administrative authority" possessed by state administrative officials to act in the realm of state administration.
The concrete form of administrative authority is the authority for state administrative officials to stipulate state administrative decisions and/or take actions. Authority can be implemented as long as it does not conflict with applicable laws and regulations and the general principles of good governance.
Interestingly, the Government Administration Law distinguishes between the terms "kewenangan" (authority) and "wewenang" (competence). According to Article 1 number 5, wewenang is the right of government officials to act in the administration of government. From this, it can be understood that kewenangan is the power to act, while wewenang is one form of kewenangan.
Furthermore, the Government Administration Law stipulates that officials obtain administrative authority based on 3 forms of mechanisms, namely attribution, delegation, and mandate. Note that these three mechanisms focus on the source of authority possessed by officials and do not focus on the consequences caused by the existence of authority.
Administrative Authority through Attribution
Provisions regarding attribution are first definitively regulated in Article 1 number 12 of the Government Administration Law. This provision stipulates that attribution is the granting of authority to officials based on the 1945 Constitution of the Republic of Indonesia ("1945 Constitution") or law.
So, to determine whether an administrative authority is granted by an attribution mechanism, we can look at the provisions in the 1945 Constitution or the law that forms the basis for granting that authority.
Article 12 of the Law on Governmental Administration regulates additional indicators to measure the existence of authority through attribution mechanisms, namely the novelty of authority and the clarity of attribution. Clearly, the new attribution authority can be considered to exist if the authority is indeed a new and original authority. New means it has never been regulated before, while original means it is stated explicitly and can be proven.
For example, Article 18 paragraph (2) of the 1945 Constitution regulates the authority for local governments to manage local government independently. This is clarified through Law Number 23 of 2014 concerning Regional Government. With this regulation, local governments are able to be self-reliant in administering regional government, including in processes related to governmental administration.
The Law on Governmental Administration also regulates that if authority is given through attribution, the holder and person in charge of the authority is the intended party. As a result, using the example above, the holder and person in charge of the authority to manage government independently is the local government.
Administrative Authority through Delegation
In contrast to attribution which requires "granting", authority obtained through delegation requires "devolution". Article 1 number 13 of the Law on Governmental Administration states that the devolution of authority through delegation comes from a higher official to a lower official. Later, the lower official will accept the responsibility and accountability arising from the delegated authority. The authority itself can be a new authority or an authority that has existed before.
The devolution in delegative authority explains the origin of the authority itself. In attributive authority, the authority is purely stated through the 1945 Constitution or law. Meanwhile, in delegative authority, the authority is given based on laws and regulations, but involves a higher official in a hierarchy. Thus, authority through delegation requires written regulations as well as official intervention. The regulations that legitimize delegative authority are only government regulations, presidential regulations, and/or regional regulations.
Another condition that binds the devolution of delegative authority is the potential for further delegation. The Law on Governmental Administration stipulates that officials who hold authority cannot re-delegate that authority to lower officials, unless there are laws and regulations that allow it.
An example of delegative authority is found in DKI Jakarta Governor Regulation Number 7 of 2017. This regulation regulates the delegation of authority to mayors, regents, or heads of regional asset management bodies located in the DKI Jakarta area to sign the Handover Minutes for each item obtained legally representing the Governor of DKI Jakarta.
Administrative Authority through Mandate
In line with delegative authority, authority obtained through a mandate mechanism requires a "delegation." Authority based on a mandate also involves intervention by a higher official towards a lower official within one hierarchical level.
However, authority based on a mandate does not transfer responsibility and accountability to the recipient of the mandate. In other words, the higher official as the mandator remains responsible and accountable for all consequences arising from the authority delegated to the recipient of the mandate.
Furthermore, the Law on Government Administration stipulates that administrative authority based on a mandate cannot be applied to make decisions or take actions that are strategic and have consequences in the form of changes in legal status in aspects of organization, staffing, and budget allocation.
The Law on Government Administration also stipulates that the authority obtained by the recipient of the mandate can be withdrawn by the mandator. This occurs if the mandator assesses that the granting of the mandate actually makes the process of administering government administration ineffective.
It should be noted that the Law on Government Administration does not regulate technical procedures in granting authority based on a mandate. This differs from attributive and delegative authority, which requires the establishment of laws and regulations.
Quoting the opinion of Ridwan HR, the delegation of mandate authority uses procedures that are relative to practices in the field. For example, the delegation of authority can occur informally by a superior to a subordinate, both of whom have the status of state administrative officials.
An example of authority based on a mandate is the deputy head of the personnel division who replaces the head of the personnel division to lead the red and white flag ceremony on a routine basis. The deputy head of division has the status of an acting officer who temporarily receives a mandate to lead the activity.
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