Application of Discretion in Governance

Still within the discretion of the previous Minister of Education, Culture, Research, and Technology, we cannot assess whether the issuance of this discretion will fill the normative gap regarding existing issues. The norm in question is the norm in 3 laws relevant to the issues in the discretion. However, instead of explaining the suitability of the discretion, the consideration section of the discretion only states that the application of the discretion only refers to "the conditions and characteristics of the pandemic's spread" and agreements between authorized institutions.

The Law on Government Administration also does not provide clear parameters regarding the relevance of discretion to statutory regulations that are not solution-oriented, thus causing the birth of such discretion. Through Article 24, the Law on Government Administration only stipulates that the application of discretion must meet several conditions, namely that it is issued in good faith, issued with objective reasons, in accordance with the purpose of its issuance, in accordance with the general principles of good governance, not in conflict with statutory regulations, and does not create conflicts of interest.

Furthermore, referring to the definition of discretion and connecting it with relevant provisions in the Law on Government Administration, there are several elements inherent in a discretion.

First, discretion is a form of intervention by government officials, especially in the administration of government. Second, discretion is a government initiative to resolve issues that are not regulated in detail in statutory regulations while also filling the shortcomings of these regulations. Third, discretion is issued with reference to legal principles that can serve as indicators of the accountability of government officials.

Responsibilities in the Implementation of Discretion

In the book entitled Discretion and Government Responsibility, Ridwan states that government officials who issue discretion are fully responsible for any consequences arising from the issuance of such discretion.

It should be noted that responsibility is inherent in officials as long as they issue discretion in their capacity as office holders. If this condition is not met, the official in question cannot be held responsible for the existence of the discretion. However, they will be qualified as officials who abuse their authority.

In the context of government administration, the application of discretion by officials has an administrative accountability burden. This is stated in Articles 25, 26, 27, 28, and 29 of the Law on Government Administration.

The most important form of responsibility is an explanation of the application of discretion. Officials must be able to describe the intent, purpose, substance, and impact of the application of discretion, both in the administrative and financial spheres.

Furthermore, officials must submit a written request for approval to their superiors to use the discretion. Later, after a certain interval of time, officials will receive a reply regarding confirmation by the official's superior regarding the application of the discretion.

Officials must also disclose the discretion they have issued to the public if the discretion is capable of impacting the public. However, this does not apply if the application of discretion relates to certain circumstances, such as changes in the allocation of the state budget, charges on state finances, and emergency and urgent circumstances. This condition also involves correspondence between the official and their superior.

The Administrative Law also regulates several indicators that determine the validity of the actions of government officials in issuing discretion. This is regulated in Articles 30, 31, and 32.

In general, based on these three articles, the application of discretion may have exceeded authority, confused authority, and become an arbitrary act of government officials if the discretion is issued according to the conditions regulated in each article.