UNDERSTANDING AUPB:
CITIZENS' RIGHTS WHEN GOVERNMENT DECISIONS FEEL UNJUST
Authored by:
Juventhy M. Siahaan, S.H., M.H.
Managing Partner, JBD Law Firm
I. Introduction
A business permit is revoked without explanation. An application is rejected without reasons that can be examined. An official's decision feels arbitrary despite being claimed as "according to procedure." Such situations are not merely a matter of injustice felt by one individual; they reflect a larger structural issue: to what extent can government power be limited, and how can citizens question it? The answer lies in the General Principles of Good Administration (AUPB)—a set of legal principles that determine how the government should behave when making decisions that impact citizens. Far from being mere moral advice, AUPB are binding positive legal norms—and their violation can serve as a basis for challenging government decisions in court.
In the Rechtsstaat (rule of law) system adopted by Indonesia—as affirmed by Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia—the conduct of government must not stop at the question "is there a legal basis for this decision?" An equally crucial question is: "Was this decision taken in a manner that is fair, meticulous, impartial, and accountable?" AUPB exists to answer that second question—a layer of substantive protection that complements formal legality. This article explores the origins of AUPB, the substance of its principles, how it functions as a dispute resolution instrument, and what you can do if your rights are violated by a government decision.
II. Origins and History of AUPB
AUPB was not born in a quiet academic space. It was born from historical trauma. Post-World War II, Europe witnessed how dangerous a bureaucracy that only obeyed formal orders without substantive control could be; authoritarian regimes had proven that being "according to the rules" alone was insufficient to prevent organized injustice. In the Netherlands, this realization prompted the government to form the De Monchy Commission in 1946. In 1950, the commission submitted its report in the form of Algemene Beginselen van Behoorlijk Bestuur (ABBB), literally meaning "General Principles of Proper Administration," which became the precursor to AUPB. Although not immediately accepted by the government, these principles flowed in through the decisions of the Raad van State (the highest administrative court in the Netherlands) and gradually gained binding legal force. The vital lesson: even without formal codification, principles of justice can live and work through consistent jurisprudence.
In Indonesia, the reception of AUPB took place through two channels. The academic channel was opened by legal scholars such as Sjachran Basah, Philipus M. Hadjon, and S.F. Marbun, who introduced this concept in their scholarly works. The jurisdictional channel then reinforced it, as Administrative Court (PTUN) judges progressively applied these principles in their verdicts despite the lack of an explicit normative foundation. Formal recognition arrived gradually: Law Number 28 of 1999 mentioned seven general principles of state governance; Law Number 51 of 2009, as the second amendment to the Administrative Court Law, strengthened the position of AUPB as a ground for a lawsuit; and the pinnacle was Law Number 30 of 2014 concerning Government Administration (UUAP), which for the first time systematically and comprehensively regulated AUPB as a mandatory foundation for the conduct of government.
III. Legal Basis and Substance of AUPB
A. Position of AUPB in Positive Law
AUPB is now not just a philosophical principle; it is a legal norm enforceable in court. Article 10 paragraph (1) of the UUAP identifies eight AUPB that must be applied: legal certainty, benefit, impartiality, meticulousness, non-abuse of authority, openness, public interest, and good service. This list is not exhaustive; Article 10 paragraph (2) opens space for other principles recognized in accordance with legal developments. From the perspective of procedural law, Article 53 paragraph (2) letter b of the Administrative Court Law affirms that government decisions contradicting the general principles of good administration can be challenged in court, standing equal in status to violations of statutory regulations. This means that even if a decision does not explicitly violate a single article, it can still be annulled if the process does not meet AUPB standards.
B. Understanding the Primary Principles
AUPB is not a collection of standalone principles. It is a mutually reinforcing system, a layered safety net protecting citizens from various forms of arbitrariness. A violation of one principle often brings about a violation of another: a decision not preceded by hearing the affected party (violating meticulousness) will almost certainly not be accompanied by adequate reasoning (violating motiveringsplicht). Below is an explanation of the primary principles:
The Principle of Legal Certainty is the foundation of everything. The government must not make decisions that apply retroactively or revoke rights that have been lawfully obtained without a strong basis. It is also obliged to be consistent with previous statements and policies. If an agency for years has issued permits with certain requirements and then suddenly changes those requirements secretly to the detriment of a party who has met the old requirements, it is a violation of the principle of legal certainty as well as vertrouwensbeginsel—the principle of the protection of legitimate expectations.
The Principle of Meticulousness mandates that the government be cautious and thorough before rendering a decision that causes harm. Its most important derivative is the obligation to hear the affected party before a decision is rendered—the audi alteram partem principle in Latin law. A concrete example: a business permit revoked due to an alleged violation, without previously providing the business owner an opportunity to explain their position, is a permit revoked with a procedural defect and is prone to being annulled by the court.
The Principle of Motiveringsplicht or the obligation to provide reasons requires every decision to be accompanied by clear, sufficient, and verifiable considerations. A decision without reasons is an arbitrary decision. A rejection letter for an application that only states "the application cannot be approved" without any explanation is the most common example of a violation of this principle encountered in practice.
The Principle of Non-Abuse of Authority prohibits officials from using official power for purposes other than those determined by law. In administrative doctrine, this is the prohibition of détournement de pouvoir. An official who revokes a business permit not because of a violation, but because the entrepreneur criticized their policy on social media, has blatantly abused their authority.
The Principle of Proportionality requires a balance between the sanction imposed and the weight of the violation. Punishment must not exceed what is necessary. The sanction of dishonorable discharge for an employee who was late to the office once is an example of a non-proportional act, and in Supreme Court jurisprudence, such sanctions are consistently declared to contradict AUPB.
The Principle of Openness obliges the government to be transparent in the decision-making process and to provide accurate information to affected citizens. The Principle of Benefit requires every government action to produce tangible benefits, not just satisfy formalities. AndThe Principle of Impartiality mandates that officials be free from conflicts of interest and non-discriminatory in making decisions.
IV. AUPB as an Instrument for Administrative Dispute Resolution
A. Dual Function: Preventing and Correcting
AUPB operates on two levels simultaneously. At the preventive level, AUPB is a behavioral guide for public officials. Officials who understand and consistently apply AUPB will produce legally high-quality decisions, thereby minimizing the risk of lawsuits; AUPB is the "vaccine" that prevents disputes before they occur. At the repressive level, AUPB is a corrective tool. It becomes the touchstone (toetsingsgrond) to assess the validity of a decision that has already been issued. An Administrative Court judge does not only ask "does this decision have a legal basis?" but also "was this decision taken in the correct manner?" If proven to violate AUPB, the decision can be declared null and void.
B. First Channel: Administrative Remedies
When a government decision harms you, the first appropriate step—and generally legally mandatory to be pursued first—is not to immediately sue in court. Based on Article 75 of the UUAP, aggrieved citizens may file an objection to the official who issued the decision, or an administrative appeal to their superior. This channel is faster, cheaper, and does not require legal counsel. In this process, AUPB becomes the standard for the examining official: did the contested decision meet the standards of good administration? If administrative remedies are unsatisfactory, only then does the door to the PTUN open.
C. Second Channel: Litigation in the PTUN
If administrative remedies do not yield an adequate resolution, a lawsuit in the PTUN is the next step. This is where AUPB becomes a true legal weapon. At the evidentiary stage, the plaintiff needs to concretely show which principle was violated: the official did not provide an opportunity to be heard (violation of meticulousness), there were no reasons in the decision (violation of motiveringsplicht), or the sanction imposed was not proportionate (violation of proportionality). This evidence requires a reconstruction of the decision-making process, not just the result, through internal documents, meeting minutes, and the chronology of the decision's issuance. A significant power for the plaintiff: the principle of iura novit curia allows the judge to actively assess AUPB violations even without being explicitly requested.
D. Third Channel: Ombudsman of the Republic of Indonesia
The third channel often ignored is a complaint to the Ombudsman of the Republic of Indonesia based on Law Number 37 of 2008. The Ombudsman is authorized to examine maladministration in public services, a concept which is essentially another face of AUPB violation: protracted delays, abuse of authority, procedural deviations, and discriminatory acts. The process is free of charge, does not require legal counsel, and is relatively faster. Ombudsman recommendations, although lacking the executorial force of a court verdict, carry significant moral and political weight to push government agencies to correct their actions.
V. Implementation and Challenges
A. Jurisprudential Progress
Indonesian PTUN judges are showing increasing courage in applying AUPB. In the field of licensing, the PTUN consistently annuls permit revocations conducted without first giving the permit holder an opportunity to present a defense—a tangible application of the audi alteram partem principle. In the field of employment, the Supreme Court, in several of its cassation verdicts, has affirmed that the sanction of dishonorable discharge for a minor disciplinary violation is a non-proportional and therefore invalid act. In the field of environment and spatial planning, the PTUN has annulled permits issued without adequate public consultation, basing its decision solely on violations of the principles of openness and public interest—a major milestone where AUPB functions as an independent ground for annulment, without needing to rely on any written statutory violation.
B. Comparative Perspective
The experience of other countries confirms that the demand for fair governance is universal. In the Netherlands, the Raad van State has developed the vertrouwensbeginsel (protection of legitimate expectations) in great detail—a principle not yet explicitly codified in the Indonesian UUAP but starting to be recognized in PTUN jurisprudence and deserving of immediate normative recognition. In the UK, the doctrine of judicial review in the landmark GCHQ (1985) case identified three grounds for review: illegality, irrationality, and procedural impropriety, which directly correspond to AUPB principles. Different legal systems, same spirit.
C. Three Remaining Obstacles
The first obstacle is inconsistency of interpretation. The absence of standardized technical guidelines makes the understanding of when an act violates AUPB differ between one judge, official, and region to another. Ironically, this inconsistency itself is a violation of the principle of legal certainty—the very soul of AUPB that should be protected. The second obstacle is the weak understanding among civil servants (ASN). Most AUPB violations occur not because of malicious intent, but due to ignorance of the applicable standards—an issue that can be addressed through systematic training. The third obstacle is limited access to administrative documents. Proving an AUPB violation requires internal government documents that are often difficult for the public to access. Strengthening the implementation of the Public Information Disclosure Law (Law Number 14 of 2008) is a fundamental prerequisite for the AUPB mechanism to work optimally.
IX. Closing
A. Conclusion
AUPB has traveled an extraordinary journey: from an ethical norm without legal force in post-World War II Netherlands to a positive legal instrument enforceable in Indonesian courts. As a dispute resolution instrument, AUPB works in layers—as a preventive guide for officials, a touchstone in PTUN litigation, a standard in administrative remedies, and a reference in Ombudsman examinations. However, a good legal framework does not automatically produce justice. As long as inconsistency of interpretation, weak apparatus understanding, and limited document access are not resolved, AUPB risks becoming a right written on paper but difficult to reach in reality.
B. What Can You Do?
If you or your business face a government decision that feels unfair, there are concrete steps that can be taken:
Ultimately, AUPB is not merely a legal doctrine. It is the state's promise to its citizens: that power will not be used arbitrarily, that your voice will be heard before a decision is rendered, and that every harmful decision can be questioned and tested before the law. Ensuring that promise is kept—that is what we fight for every day.
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JBD Law FirmThis article is prepared for legal education purposes and does not constitute legal advice. For further consultation, contact the JBD Law Firm team.