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 non-rigid and adaptive to the times.

The context of flexibility focuses on the ability of government officials to administer government based on laws and regulations. However, there are times when the norms in laws and regulations are unable to reach existing problems, are ineffective, and are not firm. 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 his authority, the government official issues a state administrative decision which he later assesses is able to provide a solution to the existing problem. 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 ("UU Administrasi Pemerintahan") 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 laws and regulations provide choices, do not regulate, are incomplete or unclear, and/or there is government stagnation.

Essentially, discretion is a state administrative decision. 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 applying discretion. First, discretion is present to overcome concrete problems. Second, discretion exists because the existing laws and regulations are unable to help government officials overcome these concrete problems.

Of course, there needs to be further elaboration of the conditions for applying discretion. For example, why does discretion only answer "concrete" problems? What kind of concrete problems require the application of discretion? Then, to what extent is a regulation considered not to regulate, incomplete, unclear, or cause stagnant government so that officials need to apply discretion?

The existence of discretion to answer concrete problems 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 their substance is abstract and does not directly answer the problem. For this reason, discretion is born as a clearer and more detailed policy.