INSTRUMEN REKOMENDASI DPRD DALAM PENYELENGGARAAN KEWENANGAN PERIJINAN OLEH PEMERINTAH DAERAH

Abstract

Recommendation of the Local House of Representative (DPRD) is a common administrative
institution employed in the local government decision making process. However, this
institution does not recognized by the law. Hence, its presence dan used in the process
of decision of public license contains various problem, such as: (1) its status under the
administrative law; (2) its implication to the validity of the license; (3) and the position
of the head of the local government, the degree of the local government responsibility as
the recommendation receiver and the DPRD as the recommendation giver to the negative
impact of the license. These facts resulted in needs for conducting research for clarifying
the status, measuring the implication of the recommendation over the validity of the license,
and the range of responsibility head of the local government and the DPRD to the impact of
the license.
This research is focused into two issues, namely: (1) how is the position and function of
the DPRD in the process of issuing of license; and (2) how would be the implication of
the DPRD’s recommendation over the range of responsibility of the head of the local
government and DPRD in the issuing of license. This research is limited to the practice of
issuing of recommendation in the Local Government Province of Bali.This research shall
employ normative approach and uses both primary and secondary legal resources.
The research resulted in two inventions: firstly, recommendation of DPRD is not recognized
by the law in the level of province local government neither it’s the authorithy of the DPRD
on supervising the governor. The recommendation recognized by law is the recommendation
as an administrative legal instrument in the performance of local government by the
governor, particularly for performing the function of decision making or the conducting
of governmental act. Hence, recommendation of DPRD is a state custom in performing
state governmental function. Secondly, recommendation has two functions, namely: a
condition and confirmation. In the function of condition, recommendation is a prerequisite
for adopting public decision. In the function of confirmation, recommendation is a merely an
expression of an agreement provided by a certain instution for adopting a public decision.
Recommendation in the function of condition, binds the recommendation giver to bear
responsibility over the result of the implementation of the decision. While, in the function
of confirmation the giver may not necessarily responsible to the result of the performance
of the decision. However, under the principle of good faith, the giver is under obligation
to bear responsibility over the result of the implementation of the decision whenever the
recommendation is given under a bad faith.