Proceeding of 2 nd International Conference on Empowering Moslem Society in Digital Era Recommendations of The Ombudsman ’ s Dilemma : Between Law Enforcement Officials and Protection of Credibility

The Ombudsman as an external oversight body for official performance, in Fikih Siyasah (constitutionality in Islam) is included in the supervision stipulated in legislation (al-musahabah al-qomariyah). Supervision is done so that public service delivery to the community is in accordance with the rights of the community. This is done because in carrying out its duties, officials are very likely to conduct mal administration, which is bad public services that cause harm to the community. The Ombudsman is an institution authorized to resolve the mal administration issue, in which one of its products is by issuing a recommendation. Although Law No. 37 of 2018 on the Ombudsman of the Republic of Indonesia states that the recommendation is mandatory, theombudsman's recommendations have not been implemented. This is due to differences in point of view, ie on the one hand in the context of law enforcement, but on the other hand the implementation of the recommendation is considered as a means of opening the disgrace of officials. Recommendations are the last alternative of Ombudsman's efforts to resolve the mal administration case, given that a win-win solution is the goal, then mediation becomes the main effort. This is in accordance with the condition of the Muslim majority of Indonesian nation and prioritizes deliberation in resolving dispute. Therefore, it is necessary to educate the community and officials related to the implementation of the Ombudsman's recommendations in order to provide good public services for the community, which is the obligation of the government.


A. Introduction
Indonesia as a predominantly Muslim country, strongly supports the settlement of the problems that occur in the community through consultation or often known as mediation.Mediation is intended to obtain a win-win, good for all parties.This is precisely the basis of the Ombudsman in resolving cases of mal administration, not only in Indonesia but also for the Ombudsman worldwide.Moreover, if we look at the history of the establishment of the Ombudsman as an external watchdog, the Islamic state had known long before the term of the Ombudsman itself is becoming popular as it is now.
As pointed out by Dean M Gottehrer, former President of the United States

Ombudsman
Association, that the Ombudsman is basically rooted in the principles of justice as set out in the constitutional system of supervision according to Islam.It can be seen during the reign of Umar bin Khattab (634-644 BC), in which he positioned himself as Muhtasib, the person receiving the complaint once a mediator in an attempt to resolve disputes between the public and the government.This task is accomplished by means of disguise, visiting various parts of the region to listen to the complaints of the people directly (Masthuri, 2005) Based on the description above, it appears that the relationship between government and society, sometimes there is a condition in which people in a weak position as powerless.Similarly, when the government act of mal administration, people often do not know what to do, complain to anyone.This is where the role of the Ombudsman as an external oversight agency is expected to bridge the impasse the government's relationship with the community, through the mediation efforts.
Maladministration defined in the Act No. 37 of 2008 on the Ombudsman of the Republic of Indonesia, are: "Behavior or unlawful, beyond the authority, use authority for any purpose other than the purpose of the authority, including negligence or neglect of a legal obligation in organizing public services performed by state officials and governments that cause material damage and / or immaterial for the community and individuals." Furthermore, when the case of mal administration, the Ombudsman task is done, given that, as described in Article 1 paragraph (1) of Law Number 37 of 2008 on the Ombudsman of the Republic of Indonesia, that: "Ombudsman of the Republic of Indonesia, hereinafter referred to Ombudsman is a state institution that has the authority to supervise organization public services organized by the organizers of state and government including those organized by the Agency for State-Owned Enterprise area, and State Owned Legal Entity as well as private entities or individuals were given the task of organizing a particular public services partly or entirely funded from the budget of revenues and expenditures and/or budget revenue and expenditure." Here is seen the Ombudsman the authority granted by statute to oversee the implementation of public service, and in the event of mal administration authorized to complete.Based on this background, the problem posed is: "Why there are still public officials who do not implement the Ombudsman's recommendation?"

B. Method
This research into the category of qualitative research, which is the focus of attention with a variety of methods, which include interpretive and naturalistic approach to the subject of study.(Norman Yvonna S K Denzin & Lincoln, 2009), While the paradigm used is a post-positivism, who based questions related to aspects of the ontological, epistemological and methodological as follows: 1. Ontology: Critical realism, Reality is assumed to exist, but it can not be understood completely because basically the human intellectual mechanism has shortcomings while the fundamental phenomenon itself has properties that are not easily regulated.2. Epistemological: Dualis / objectivist modified.Dualism has been largely abandoned as no longer possible to be maintained, while objetivitas remains the "ideals of the guide", a special emphasis is given to "guard" the external objectivity as the traditions of critical (Do the results of the study "in accordance" with the knowledge that has been there before?) and the critical community (such as editors, judges, and professional colleagues).The results of the research can be repeated most likely true (but always subject to falsification).

Methodological:
Experimental / Manipulative modified.The emphasis is on "critical diversity" (a new version of triangulation) as a way to falsify (not verified) hypothesis, as well as bring the viewpoint of EMIC (native point of view).For example, try to explain a phenomenon in society with the viewpoint of the community itself (Zulfifani, 2016) to help determine the meaning attached human purpose to their actions by using qualitative techniques are increasing (Norman K Denzin & Lincoln S Yvonna, 2009).The approach used is a socio-legal research by performing the textual study and develop new methods marriages between law with social science methods such as qualitative research sosiolegal, sosiolegal ethnography, ethnography of law, feminist legal qualitative approach.(Shidarta, 2011), Selected social setting is Ombudsman Representative Yogyakarta and Central Java Representative Ombudsman.The data used are primary data from interviews with informants and secondary data from a variety of library materials.Data collection techniques with a system structured interviews and unstructured interviews.
This study dinalisa with componential analysis method, which organizes the contrast between elements in the domain obtained through observation and / or interview selected.(Faisal, 1990) The flow of activities based on the components of an interactive model analysis (Huberman, 1992), as follows: Chart 1 Component Analysis Interactive Model Matthew B. Miles and A. Michael Huberman The study begins by collecting data from the field, then the focus is directed at the actions of public officials who do not carry out the recommendations Ombudsman These data were then reduced that the electoral process on the raw data obtained in the field to be further continued with the presentation of data falsification, (Panjikeris, 2016) namely that the focus of the study is to prove that a general theory is wrong to put forward an evidence to prove that he is wrong.Recently conducted conclusion.However, it can also, after data collection, data presentation, data reduction, the falsification, the new conclusion.Related to this research, the falsification to see whether the Ombudsman's recommendation arranged in Law Number 37 of 2008 which requires recommendations also interpret automatically the same society, that the Ombudsman's recommendation required?Eventually there will be drawn a conclusion that will be used as the basis to know the reasons non-performance of the Ombudsman's recommendation.
Furthermore, data validation techniques using triangulation (Moleong, 1995) comparing and checking the degree of confidence behind the information gained through time and different tools with qualitative methods.This can be achieved by:

C. From KON Towards ORI
Departing from the idea want to realize good governance (good governance), Came the idea to establish an independent external oversight body and free from any influence.This is due, that has begun to emerge distrust (public distrust) on the performance of the government, given that the data related corruption, collusion and nepotism which many cause harm to the public any time surge increased quite fantastic.This public mistrust conditions resulted in a surge of cases in the community settlement by way of vigilantism (eigenrichting), where in fact it is less appropriate action in social life, given the presence of law enforcement agencies have been recognized.On the other hand, the actions of such a society can not be blamed, because this is actually the culmination data collection presentation of data data reduction withdrawal Conclusion 4 public disappointment to the government that is less concerned with the welfare of society.They are more work for the sake of personal or group interests.
And if the government is serious about achieving good governance, Efforts to meet the public interest should take precedence.As stated by Sudigno Mertokusumo as quoted by Adrian Sutedi, (Sutedi, 2007) that the public interest aimed at improving the welfare of the general public and do not aim for profit or gain.Moreover, the so-called public interest that concerns the interests of the nation, public services in the wider society, the masses, and development." In order to fulfill public interest perceived as fair by all citizens, hence the need for oversight agencies, given that a lot of the actions of officials at the expense of society, giving rise to disappointment.Disappointments culminating in 1998, namely the total reform movement that succeeded in overthrowing the government has been in power long enough.Portrait This then led to the idea at the Wahid government regime to set up a an external oversight agency for achieving good governance and complements existing supervisory institutions previously but the performance has not been able to say a maximum of bringing people towards protected.For that on 20 March 2000 the Ombudsman officially formed in Indonesian national.However, it is not easy to establish a new agency charged with overseeing the government's performance, as seen in the establishment process that takes quite a lot of time and thought.Beginning in early November 1999, the President of the Republic of Indonesia Abdurrahman Wahid took the initiative to call the Attorney General Marzuki Darusman in the framework of the discussion relates to the concept of the new surveillance state institutions.It is given that the rampant collusion, corruption and nepotismis one result of the lack of supervision carried out, even though there is a structural oversight agencies such as Embedded Control, Office of the Inspectorate and the BPK.Dialing is continuing at a meeting on November 17, 1999, between the President, Attorney General Marzuki Darusman and Antonius Sujata as a candidate for chairman of the Ombudsman.On November 18, 1999, Antonius Sujata asked by Deputy Cabinet Secretariat to provide food for thought related Ombudsperson institution as the issuance of Presidential Decree material.Furthermore, on December 16, 1999, the President issued Decree No. 155 of 1999 on the Establishment of the Assessment Team Ombudsman dated December 8, 1999.
Once learned, it turns out the Presidential Decree is not in accordance with the previous discussion was held between the President and Attorney General Marzuki Darusman and Antonius Sujata, that recommendation to establish a supervisory agency called Ombudsman to eradicate corruption, collusion and nepotism.Finally, on December 18, 1999 Attorney General Marzuki Darusman and Antonius Sujata turned back to the President to ask for clarificationon the difference in output with the results of previous discussions.These efforts bring results, which on December 22, 1999 re-arranged a new draft Presidential Decree for the establishment of the Ombudsman.Discussion of the new concept is done in the marathon at the beginning January 2000.During a meeting between Attorney General Marzuki Darusman with marsillam simanjuntak Cabinet Secretary, it occurred to their concerns about the lack of effectiveness of the Ombudsman institution in carrying out their duties in the field of supervision to eradicate corruption, collusion and nepotism.However, given the increasingly strong public pressure to eradicate corruption, collusion and nepotism, it is deemed not need to form a team investigating the Ombudsman, but just establish the Ombudsman institution.To expedite the process of realization of the Ombudsman, Antonius Sujata initiative to contact some known figures dedicated and integrity, to be nominated as a member of the Ombudsman.The increasing number of complaints from the public report to the National Ombudsman Commission (KON) to show the existence of the Ombudsman National (KON) as an institution that takes its existence in order to help people obtain public servicesthe good one.Even in the Annual Report of the National Ombudsman Commission (KON), 2003, stated that more than 23 areas will form the Regional Ombudsman, and they are quite vigorous in promoting the formation of ideas.Based on the Annual Report of the National Ombudsman Commission of 2004, that the first-born Regional Ombudsman which in 2004 was the Regional Ombudsman in the province of Yogyakarta and Asahan.
Ombudsman Region of Yogyakarta Province was established by Decree Governor Istimewa Yogyakarta No. 134 of 2004 dated June 30, 2004.In addition to the Regional Ombudsman of Yogyakarta Province, Private Ombudsman institution also formed by Decree of the Governor of Yogyakarta Special Region No. 135 of 2004 dated June 30, 2004.
Meanwhile, Asahan, North Sumatra also has managed to establish the Ombudsman Regions with members consist of 5 (five) based on the Asahan Regency Decree No. 419 of 2004 dated 20 Oktober2004.
Establishment of Ombudsman Good area in Yogyakarta and Asahan showed a good appreciation from the local government to provide satisfactory public services for citizens.These conditions are also a breath of fresh air for the community, because imagine the future will get better government performance in providing services to the public.
National  to submit it to the relevant authorities.However, if the results of the selection report concluded that the community is under the authority of the Ombudsman, then proceed with the inspection process that includes the following phases: a clarification writing, field investigations and invocations.The output of this process is the recommendation.
Meanwhile, for the inspection process through mediation/ conciliation, Will generate output deal.In addition, for the inspection process through a special adjudication, will generate output decision.In relation to the special adjudication, Ombudsmn new discourse Republic of Indonesia, given the limited human resources that will handle it.
In relation to the output released, everything is going through the stages of monitoring to oversee the implementation of the extent of output, until a later date if it is implemented, the Ombudsman The report closes with a note 'finished'.However, if the output is not carried out and a monitoring period of 60 days has been completed, it will be reported in the periodic reports of the Ombudsman either three (3) monthly and annual reports on the first month of the following year.This is where seems increasingly clear that the Ombudsman is an institution that prefers to settle matters instead of through the courts, but rather to emphasize communication.Given that the purpose of the Ombudsman in the world in the beginning is in order to bridge the communication impasse between government and society.Bids Ombudsman form of recommendation while, indicating that efforts are "soft" in the resolution on the report of the alleged mal administration, Is expected to support the efforts of the Ombudsman who works on the mechanism of persuasion.Awareness building to provide public services good and satisfactory to the public, is expected to be a mediator appropriate way, without having to pair with the threat of any sanction.

E. Implementation of The
Recommendations of The Ombudsman Recommended as one alternative for resolving cases of mal administration, can be grouped into: 1) helping to resolve the problem, 2) on the imposition of sanctions, 3) prevent mal administration, 4) changing the process / system.Ombudsman and failure to do so will be subject to administrative sanctions.However, in practice there are any Party that does not implement the Ombudsman's recommendation.
In relation to the Ombudsman's recommendation, on the part of public officials, there is a view that if an agency obtain recommendation of Ombudsman, Means that the agency had made a mistake.It is seen as a "disgrace" that should be closed, so that if the agency running the same content of the Ombudsman's recommendation means that the agency has opened a "disgrace" and publish it to the public, so that people will know about it.Moreover, if the bureaucrats already feel duty of public serviceaccordance with applicable regulations.While the Ombudsman's recommendation can not be a legal basis to perform an action, and the officials will be more submissive and obedient when it was ruled by superiors.It is as stated Mr. Idam Lieu, that: "Given this, of course, be linked to various other problems, for example, about finance any accountability." (Lieu, 2016) Sectoral ego problem also be one for less heeded recommendation Ombudsman by the Party and Party boss, as presented by Mr. Jaka Susila Wahyuana, That: Implement the recommendations means also opened a "disgrace" This is not free from the problem of credibility, because it's such an understanding is still quite common among bureaucrats, especially when it comes to ego-sectoral, with their efforts to meet political interests.To that end, the public also needs to receive education related to the conduct of the Ombudsman's recommendation, In order to participate oversee the implementation of these recommendations.(Wahyuana, 2016) And, in fact if an institution willing to accept criticism, suggestions and constructive feedback, will be able to improve the quality of governance, as it is described in Article 2 of Law No. 30 of 2014.However, it is not easy when it should be applied in the field.This fits your opinion Sabarudin Hulu, That: "There is little bureaucrat considers that recommendation Ombudsman it is a "sanction" when in fact the recommendation is an attempt to realize bureaucrats in order to provide public services the good is the right of society.Motivation for officials in each institution to improve performance in delivering services to people becoming indispensable.Because, according Anoraga motivation as quoted by M. Syamsul Ma'arif and Hendri cape, a functional pressure, the pressure that creates energy in a person to act.(Cape, 2003) Their motivation to improve public services, in order to realize good governance, public service providers who have a recommendation Ombudsman on the basis of their report mal adminstrasi, do not feel embarrassed longer do.Although it can not happen by itself, but through a process, because according to Robin and De Cenzo as quoted by M. Syamsul Ma'arif and Hendri Tanjung, motivation in a person is formed through a series of psychological processes that are not visible or physical processes.(Cape, 2003) In relation to the recommendation Ombudsman, There is a view which does not necessarily bureaucratic will to implement the recommendations if there are no orders from above.This is because the prudence of bureaucrats, so more waiting for orders from above.Likewise, "still less strong a recommendation as a basis for making a rule or decision, meaning that the legislation is not as strong."(Lieu,2016)

F. Conclusion
The implementation of the Ombudsman's recommendation that according to Law Number 37 Year 2008 is mandatory for the Party and Party boss, but in practice there are not implemented.The reason is because of the assumption that the implementation of the recommendations, then admitted carrying out the error.Where as a public official, because the existence of public confidence.So, if you had "made a mistake" and admitted, it is considered to have opened a "disgrace" itself, but will have an effect also for accountability in other fields, such as financial problems.In addition, there are also public officials who think that recommendation Ombudsman is a sanction, when in fact it is an attempt to realize bureaucrats in order to provide public services the good is the right of society.

Bibliography
1. Comparing data from interviews with data of observation (observation) directly for the researchers went to the field.2. What is said by people about the situation of research by comparing what the informant or respondent in public with what is said in private.3. Comparing what is being said all the time.4. Comparing the situation with social perspective.5. Comparing the results of interviews with the contents of a document related.
authorized to resolving the problem of mal administration committed by public officials that cause harm to the public.The flow of mal administration settlement is as follows: Chart.2. Public Complaint Resolution Flow Statement Based on Law No. 37 Year 2008 Ragaan.2. The above is a settlement groove public statements to the Ombudsman as stipulated in Law No. 37 Year 2008 on the Ombudsman of the Republic of Indonesia.Described that after the public statements recorded in the registration list of the Ombudsman reports, the selection is then performed to determine whether the public report under the authority of the Ombudsman to complete.If it does not enter the realm of authority Ombudsman, the Ombudsman shall submit to the Rapporteur and directed Year 2008: Paragraph (1): "Party and Party Bosses required to implement Recommendation Ombudsman." Paragraph (2): "Bosses Party shall submit a report to the Ombudsman on the implementation of the recommendation has been done with the results of the examination within the period of 60 (sixty) days from the date of receipt of the recommendation." Paragraph (3): "The Ombudsman Party may request information and / or superiors and carry out field inspections to ensure implementation of the recommendation." Paragraph (4): "In the case of Party and on the grounds that can not be accepted by the Ombudsman, The Ombudsman can publish Party boss who does not carry out the recommendation and submit a report to the Parliament and the President.While hooked up with problems for the Party and the Party Bosses who do not implement the recommendation Ombudsman will be penalized as stipulated in Article 39 of Law No. 37 of 2008, which in detail is as follows: "Party and Party boss who violates the provisions referred to in Article 38 paragraph (1), paragraph (2), or (4) subject to administrative sanctions in accordance with the provisions of the legislation."The second chapter is the basis, that since the adoption of Act No. 37 of 2008, Party and shall implement the recommendations Tops Party Presidential Decree No. 44 of 2000 with Ombudsman Republic of Indonesia who was born based on Law Number 37 Year 2008, but basically not much different working principles.
Although Act No. 37 of 2008 on the Ombudsman of the Republic of Indonesia, namely in Article 38, 39, in reality they are not done.Article 38, 39 of Law Number 37 Year 2008 on the Ombudsman of the Republic of Indonesia, namely; process / system.Although Act No. 37 of 2008 on the Ombudsman of the Republic of Indonesia, namely in Article 38, 39, in reality they are not done.Article 38, 39 of Law Number 37 Year 2008 on the Ombudsman of the Republic of Indonesia, namely; Article 38 of Law Number 37 by the providers of public services, though not all of are clerks Apparatus State Civil, but due to in Article 1 Law Number 37 Year 2008 on the Ombudsman of the Republic of Indonesia including the public service the specific part or all of their funds from the APBN / APBD, then the overall public service providers may apply the provisions of Article 10, paragraph a of Law Number 30 Year 2014, namely as a public servant.