Position of Principle of Propriety in the Use of Discretion in Government Actions

Abstract

One characteristic of the ‘welfare state’ concept is the government’s obligation to seek public welfare or bestuurszorg. If the state’s obligation, or in this case the government in promoting public welfare, is a feature of the concept of a welfare state, it can be concluded that Indonesia is included as a welfare state since the government’s duty is not only running the government sectors, but also carrying out social welfare to realize the state goals set forth in paragraph IV of the Preamble of the 1945 Constitution of the Republic of Indonesia which are carried out in national development. The administration of government activities must not be terminated due to the absence of underlying legal basis. Therefore, administrative officials are given discretionary authority whose formulation of qualifications was carried out after the enactment of Law number 30 of 2014 concerning Government Administration related to discretion. The use of discretionary authority is regulated starting from the terms of use, purpose of use, to the legal consequences of its use. One of the conditions for the use of discretionary authority is that it must be in accordance with the Good Governance Principles (AUPB) in which the principle of propriety is not required in its implementation. The principle of propriety is only as an explanation of the principle of legal certainty. In fact, the principle of propriety has a different meaning from the principle of legal certainty. Although they are in a unity, essentially, the principle of propriety and the principle of legal certainty are two different things.