Testing Parameters for the Principle Prohibiting the Abuse of Powers and the Principle Prohibiting Arbitrary Action

Parameter Pengujian Terhadap Asas Larangan Penyalahgunaan Wewenang dan Asas Larangan Bertindak Sewenang-wenang

Abstract

Abuse of power and arbitrary action are two distinct principles in administrative law. Abuse of power (detournement de pouvoir) refers to the exercise of power in a manner that deviates from the purpose for which it was granted, whilst arbitrary action (willekeur) refers to the irrational exercise of power. However, Law No. 30 of 2014 on Government Administration categorises within the same legal framework as forms of abuse of power. The analytical treatment of these principles blurs the doctrinal boundaries between them and affects the parameters used to test the legality of government actions in administrative judicial practice. This study aims to analyse the doctrinal error in equating the abuse of authority with arbitrary action and to reconstruct the boundaries of these two principles within Indonesian administrative law. This study employs a normative legal research method using a statutory approach, a conceptual approach, and a comparative approach through an analysis of administrative law doctrine. The results of the study indicate that the amalgamation of these two principles in Law No. 30 of 2014 is not in line with developments in modern administrative law doctrine, as each has distinct philosophical foundations, elements, and legal consequences. Therefore, a restructuring of the legal framework governing the abuse of power is required, establishing arbitrary action as a separate principle, thereby ensuring legal certainty and consistency in the judicial review of government administrative actions.