17 General Principles of Good Governance and Their Explanation

PERTANYAAN

Please mention and explain the general principles of good governance that apply in Indonesia. In addition, please provide examples of their application.

INTISARI JAWABAN

General principles of good governance are used as a reference for the use of authority for government officials in issuing decisions and/or actions in government administration.

These principles serves as a guide for the government to carry out its functions, as a testing instrument for judges in assessing government decisions, and as a basis for filing a lawsuit for plaintiffs. Meanwhile, this article will discuss 17 General Principles of Good Governance based on the Government Administration Law and doctrine.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of 17 Asas-Asas Umum Pemerintahan yang Baik dan Penjelasannya, written by Nafiatul Munawaroh, S.H., M.H and was published on Thursday, 27 July 2023.

This article is an update with the same title which was first published on Thursday, 21 July 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of General Principles of Good Government

According to Ridwan HR in State Administration Law, the general principles of good governance are general principles that are used as the basis and procedures in good governance, so that governance becomes good, polite, fair, honorable, and free from injustice, violation of regulations, acts of abuse of authority and arbitrary actions (p. 234).

Meanwhile, juridically, the general principles of good governance are principles used as a reference for the use of authority for government officials in issuing decisions and/or actions in the administration of government.[1]

The Function of General Principles of Good Government

According to Jazim Hamidi as cited by Ridwan HR, the general principles of good governance function as (p. 235):

1. a guide for state administrative officials to carry out their functions;
2. as a testing instrument for administrative judges in assessing state administration (in the form of stipulations/beschikking); and
3. as the basis for filing a lawsuit for the plaintiff.

Meanwhile, according to Ridwan HR, the functions of general principles of good governance are as follows (p. 239):

1. for the state administration/government, it serves as a guideline in interpreting and applying vague or unclear regulations, as well as preventing the state administration from deviating from statutory provisions;
2. for the public as a seeker of justice serves as the basis for a lawsuit;
3. for State Administrative Court judges, serves as a testing instrument and cancel decisions issued by state administrative bodies or officials;
4. for the legislative body, general principles of good governance can be used in drafting laws.

17 Types of General Principles of Good Government

Juridically, the Government Administration Law mentions at least 8 kinds of general principles of good governance. However, we will mention 17 principles that refer to the 8 principles in the Government Administration Law and 13 principles from Ridwan HR's opinion in his book Hukum Administrasi Negara, which we readjust because there are some similarities. Thus, the 17 kinds of general principles of good governance in this article are based on laws and doctrines, which include:

1. The Principle of Legal Certainty

The principle of legal certainty is a principle in a state based on the law that prioritizes the cornerstone of provisions of laws and regulations, appropriateness, consistency (keajegan), and fairness in each government administration policy.[2]

Theoretically, the principle of legal certainty has two aspects, namely:[3]

1. The material law aspect, this principle requires respect for the rights that have been obtained by a person based on a government decision, even if the decision is wrong. Thus, for the purpose of legal certainty, decisions that have been issued by the government will continue to apply until they are decided by the court.
2. The formal legal aspect requires that both burdensome and favorable government decisions must be clearly worded. Interested parties have the right to know exactly what the intention of the decision is.

 

2. The Principle of Benefit

The principle of benefit is the benefit that should be considered in a balanced way between:[4]

1. the interests of one individual and the interests of another individual;
2. individual and public interests;
3. the interests of Community Members and foreign citizens;
4. the interests of one community group and the interests of another community group;
5. the interests of the government and Community Members;
6. the interests of the current generation and future generation;
7. the interests of humans and their ecosystem; and
8. the interests of men and women.

 

3. The Principle of Impartiality

The principle of impartiality is a principle obliging Government Agencies and/or Officials in establishing and/or carrying out Decrees and/or Actions to take into consideration the interests of the parties as a whole and are not discriminatory.[5]

4. The Principle of Accuracy or the Principle of Acting Carefully

The principle of accuracy is a principle which implies that a Decree and/or Action should be based upon complete information and documents to support the legality of the establishment and/or implementation of a Decree and/or Action so that the Decree and/or Action in question is carefully prepared before said Decree and/or Action is established and/or carried out.[6]

This principle aims to ensure that government administration activities do not cause harm to citizens. Thus, when the government wants to issue a decision, it must examine all relevant facts and interests in consideration.[7]

5. The Principle of Not Abusing Authorities

The principle of not abusing authorities is a principle obliging each Government Agency and/or Official to not use its authorities for personal interests or other interests and not in accordance with the purpose of granting such authorities, not exceeding, not abusing, and/or not mixing up authorities.[8]

Ridwan HR describes it as the principle of non-interference with authority. The principle of non-interference with authority requires that government officials do not use their authority for purposes other than those specified in the applicable regulations or use their authority in an excessive manner.[9]

6. The Principle of Transparency

The principle of transparency is a principle that serves the community in obtaining access and acquiring correct, truthful, and non-discriminative information in government administration while still paying attention to the protection of personal human rights, groups, and state confidentiality.[10]

7. The Principle of Public Interests

The principle of public interests is a principle that prioritizes public welfare and benefits using aspirational, accommodating, selective, and non-discriminatory.[11]

The principle of public interest or the principle of organizing public interest basically requires that the government in carrying out its duties prioritize the public interest, namely interests that cover all aspects of the lives of many people. For example, the interests of citizens who cannot be maintained by citizens themselves such as food supplies, welfare housing, etc.[12]

8. The Principle of Good Service

The principle of good service is a principle that provides timely services, clear procedures and costs, in accordance with service standards, and provisions of laws and regulations.[13]

9. The Principle of Balance

This general principle of good governance requires a balance between official punishment and employee negligence. In addition, there needs to be clear criteria regarding the types of violations or negligence committed by a person so that if the violation or negligence is committed by different people, the same sanctions can be imposed, in accordance with the criteria in the applicable laws and regulations.[14]

10. The Principle of Equality in Making Decisions

This principle requires the government to take the same action or not contradict each other on cases with the same facts. However, in reality it will be difficult to find absolute similarities between cases, so the government in carrying out policies must act carefully to consider points of similarity. It should be noted that this principle does not apply to wrong or erroneous government decisions that have been issued in previous cases.[15]

11. Motivation Principle for Every Decision

This principle requires that every government decision must have sufficient reasons or motivation as a basis for issuing a decision. The reasons must be clear, bright, true, objective and fair.[16]

This principle includes the following sub-variants:[17]

1. the requirement that a decision must be given reasons;
2. the decision must have a solid factual basis; and
3. the provision of reasons or motivation must be sufficiently supportable.

 

12. Principle of Fair Play

This principle requires that citizens are given the widest possible opportunity to seek truth and justice. In addition, citizens are also given the opportunity to defend themselves and provide arguments before an administrative decision. This principle also emphasizes the importance of honesty and openness in the process of resolving state administrative disputes.[18]

13. Principles of Justice and Fairness

The principles of justice and fairness require state administrative bodies or officials to pay attention to aspects of justice and fairness in every action. The principle of justice is an action that is proportional, appropriate, balanced and in line with the rights of everyone. Meanwhile, the principle of fairness emphasizes that every government activity must pay attention to the values prevailing in society such as religion, morals, customs, and other values.[19]

14. The Principle of Trust and Responding to Reasonable Expectations

This general principle of good governance requires that every government action must raise expectations for citizens. Thus, when an expectation has been given to citizens, it should not be withdrawn even if it is beneficial to the government.[20]

15. The Principle of Nullifying the Effects of a Canceled Decision

This principle relates to employees who are dismissed through a decree. However, the reason for the dismissal of the employee due to allegations of committing a crime was not proven in court. As such, the employee must be reinstated to his/her original job position along with compensation and rehabilitation of his/her good name. This process is referred to as the means of nullifying the effects of a void or invalid decree.[21]

16. Principle of Protection of Personal Views or Way of Life

This principle requires the government to protect the right to private life of every civil servant and citizen in general, as a consequence of a democratic state of law that upholds and protects human rights.[22]

17. The Principle of Discretion

This principle requires that the government be given the freedom and discretion to apply discretion without being fixated on formal laws and regulations in carrying out its duties. This is to anticipate when a statutory regulation is inflexible or does not accommodate community problems, so that the government is required to act quickly and dynamically, be broad-minded and able to take into account the consequences that arise from its actions.[23]

Examples of the Application of the General Principles of Good Government

One example of the application of general principles of good government, namely the principle of accuracy, can be seen in Supreme Court Decision Number 07 K/TUN/2014 between the Kampar Regent vs. the indigenous people of Kenegerian Tambang Terantang. The Kampar Regent issued a decree of the Kampar Regent dated October 31, 2012 regarding the approval of a mining business license for the production operation of sand and rock excavation materials to other people outside the indigenous community on their customary land (pp. 1 and 4).

The panel of judges rejected the appeal from the Kampar Regent on the grounds that the judex facti's decision was correct and did not misapply the law, namely that the state administrative decision of the object of dispute violated the principle of accuracy in general principles of good government and did not guide the Kampar Regional Regulation 12/1999 (p. 21). According to the judex facti, the Kampar Regent violated the principle of accuracy because in issuing the mining business license, it was not based on legal facts that occurred in the community, did not conduct deliberations with the customary leaders and was not guided by Kampar Regional Regulation 12/1999 (p. 16).

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 30 of 2014 on Government Administration;
2. Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation which has been enacted into law under Law Number 6 of 2023.

Court Decision:

The Decision of the Supreme Court Number 07 K/TUN/2014.

Reference:

Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011.

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[1] Article 175 number 1 Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation which has been enacted into law under Law Number 6 of 2023 which amended Article 1 number 17 Law Number 30 of 2014 on Government Administration (“Government Administration Law”).

[2] Elucidation to Article 10 section (1) letter a Government Administration Law.

[3] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, pp. 245-246.

[4] Elucidation to Article 10 section (1) letter b Government Administration Law.

[5] Elucidation to Article 10 section (1) letter c Government Administration Law.

[6] Elucidation to Article 10 section (1) letter d Government Administration Law.

[7] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, pp. 248-249.

[8] Elucidation to Article 10 section (1) letter e Government Administration Law.

[9] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 252.

[10] Elucidation to Article 10 section (1) letter f Government Administration Law.

[11] Elucidation to Article 10 section (1) letter g Government Administration Law.

[12] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 263.

[13] Elucidation to Article 10 section (1) letter h Government Administration Law.

[14] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, pp. 246-247.

[15] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, pp. 247-248.

[16] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 250.

[17] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, pp. 251-252.

[18] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 255.

[19] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 258.

[20] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 259.

[21] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 260.

[22] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 261.

[23] Ridwan HR. Hukum Administrasi Negara. Revised Edition. Jakarta: Rajawali Press, 2011, p. 262.