Legal Literacy - Learn about the implementation of discretion in the administration of the Indonesian government.
The Issuance of Discretion
At certain junctures, government officials may stipulate the implementation of discretion.
An example of discretion is the policy stipulated by the Minister of Education, Culture, Research, and Technology (Mendikbudristek) regarding the face-to-face learning process during the COVID-19 pandemic.
The implementation of this discretion was issued to bridge two conditions. First, the Indonesian people have the right to receive education without any obstacles. Second, there is an ongoing pandemic that potentially endangers public safety.
If only the first condition is prioritized, the lives of the people may be threatened. If only the second condition is prioritized, the people's right to receive education is disrupted. As a result, government officials implement discretion that enables people to receive education while being protected from the dangers of the pandemic.
However, upon closer examination, we can conclude that the discretion issued by Mendikbudristek is regulatory in nature. For example, one article states that the face-to-face learning process in each region must be carried out remotely. Another article states that local governments must ensure the strict implementation of health protocols.
Prior to the emergence of this discretion, the Republic of Indonesia already had 3 regulations closely related to education, regional government policies, and pandemic management. These three are Law Number 20 of 2003 concerning the National Education System, Law Number 23 of 2014 concerning Regional Government, and Law Number 6 of 2018 concerning Health Quarantine.
We may be skeptical and ask: why should Mendikbudristek bother to stipulate the implementation of discretion that seems unnecessary, when Indonesia already has 3 comprehensive laws that can serve as guidelines for local governments to manage the face-to-face learning process during the pandemic?
In addition to the discretion issued by Mendikbudristek, we can also direct the same concerns to various other discretions issued by government officials, such as the discretion by the Minister of Law and Human Rights to grant citizenship status to a foreign national who does not meet the requirements, or the discretion of the traffic police to handle traffic accidents that are not referred to court.
This article will discuss the application of discretion, as well as the mechanisms for its issuance and accountability.
Definition and Limitations
According to Phillipus M. Hadjon, in his book entitled Legal Protection for the People of Indonesia, the application of discretion arises from the idea of flexibility in the administration of government. With its flexible nature, the administration of government becomes less rigid and more adaptive to the times.
The context of flexibility emphasizes the ability of government officials to administer government based on statutory regulations. However, there are times when the norms in statutory regulations are unable to address existing problems, are ineffective, and are not clear. As a result, it is difficult for government officials to administer government based on such regulations.
In the midst of difficulties in adapting applicable norms to the problems at hand, government officials decide to take the initiative and establish their own policies (freies ermessen). By utilizing their authority, government officials issue state administrative decisions that they later assess as capable of providing solutions to existing problems. That decision is what later becomes discretion.
The term discretion is regulated in Article 1 number 9 of Law Number 30 of 2014 concerning Government Administration ("Law on Government Administration") which reads as follows.
Discretion is a Decision and/or Action stipulated and/or taken by a Government Official to overcome concrete problems faced in the administration of government in the event that statutory regulations provide options, do not regulate, are incomplete or unclear, and/or there is government stagnation.
Essentially, discretion is state administrative decisions. However, it is not just any decision; it must be a decision issued under certain conditions. These requirements are important to understand because they become parameters for measuring the validity of a discretion. Without these requirements, there will be opportunities for government officials to act arbitrarily in issuing discretion.
If we look at the definition above, there are 2 conditions for the application of discretion. First, discretion is present to overcome concrete problems. Second, discretion exists because existing statutory regulations are unable to help government officials overcome these concrete problems.
Of course, there needs to be further elaboration on the conditions for applying discretion. For example, why does discretion only address "concrete" issues? What kind of concrete issues require the application of discretion? Furthermore, to what extent is a regulation considered to not regulate, be incomplete, be unclear, or cause stagnant governance, so that officials need to apply discretion?
The existence of discretion to address concrete issues is actually related to the background of the issuance of discretion based on regulations that are not a solution to a problem. These non-solution regulations are regulations that regulate norms in outline, so that the substance is abstract and does not directly answer the problem. For this reason, discretion is born as a clearer and more detailed policy.
In the example at the beginning of this article, we use the discretion issued by the Minister of Education, Culture, Research, and Technology to overcome the problem of face-to-face learning in the midst of the COVID-19 pandemic. This discretion is a concrete solution. The reason is that the 3 related laws that regulate the issue of face-to-face learning and the existence of the pandemic do not elaborate specific and integrative norms that can be the basis for the Minister of Education, Culture, Research, and Technology to solve the problem.
The concrete value of the issues resolved through discretion will be closely related to the 2nd condition for the application of discretion. In the 2nd condition, discretion is born based on regulations that do not regulate, are incomplete, are unclear, or cause stagnant governance. We can conclude that systematically, concrete discretion is the determination of government officials to overcome regulations that have these characteristics.
The problem is, how do we measure that the existence of discretion is able to overcome regulations that do not regulate, are incomplete, are unclear, or cause stagnation of government? Referring to the majority of discretion application practices, the concrete value of discretion that is able to overcome regulations with these characteristics only depends on the authority of government officials.
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