In the example at the beginning of this article, we used the discretion issued by the Minister of Education 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 and Technology to resolve the problem.

The concrete value of the problem solved through discretion will be closely related to the 2nd condition for applying discretion. In the 2nd condition, discretion is born based on regulations that do not regulate, are incomplete, unclear, or cause stagnant government. 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, unclear, or cause government stagnation? 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.

Still in the discretion from the Minister of Education and Technology previously, we cannot assess whether the issuance of this discretion will fill the gap in norms regarding existing problems. The norm in question is the norm in 3 laws that are relevant to the problem in discretion. However, instead of explaining the suitability of discretion, the consideration section of the discretion only states that the application of discretion only refers to "conditions and characteristics of the spread of the pandemic" and agreements between authorized institutions.

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

Furthermore, referring to the definition of discretion and connecting it with the relevant provisions in the Government Administration Law, 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 laws and regulations while filling the gaps in these laws and regulations. Third, discretion is issued with reference to legal principles that can serve as indicators of the accountability of government officials.

Responsibility for the Application 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 attached to the official as long as the official issues discretion in his capacity as an office holder. If this condition is not met, the official concerned cannot be held responsible for the existence of the discretion. However, he will be qualified as an official who abuses his 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 Government Administration Law.

The most important form of responsibility is the 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 period of time, officials will receive a response regarding confirmation by the official's superior regarding the application of discretion.

Officials must also convey the discretion they have issued to the public if the discretion is able to have an impact on 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 situations. This condition also involves correspondence between officials and their superiors.

The Administration 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, mixed authority, and become an arbitrary act of government officials if the discretion is issued according to the conditions regulated in each article.