Land policy: Discretion and government administration liability

Abstract

Permitting has been regarded as the absolute authority of the government with its discretionary authority. Discretionary authority is freedom of government organs to act on their own initiative, as well as the freedom of government organs to judge independently and exclusively. The paper is a normative legal research, by using the statute approach and conceptual approach. The results of the research indicated that the urgency of licensing in the state wealth management is an instrument to ensure legal certainty, certainty over rights and control instruments. Hence, land rights management by the state exist because of permit to ensure suitable development in land policy in Indonesia. The first form of state control is state management (beheersdaad), secondly, as a policy-making (beleid) and management (bestuursdaad). State control in the third place is a regulatory (regelendaad) and supervisory function (toezichthounden-daad). In a democratic state, the licensing process should pay attention to the citizens’ rights in a democratic way, with the change in the basic principles from Freies Ermessen to Citizen Friendly. Likewise, in terms of licensing procedures, legal protection for permit applicants and the community must be prioritized, through community participation (inspraak).