Legal Literacy - Learn about the application of discretion in the administration of the Indonesian government.

The Issuance of Discretion

At certain moments, government officials can stipulate the application 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 application of this discretion was issued to bridge 2 conditions. First, the Indonesian people have the right to receive education without any obstacles. Second, there is an ongoing pandemic that has the potential to endanger public safety.

If only the first condition is prioritized, the lives of the people can be threatened. If only the second condition is prioritized, the public's right to education is disrupted. As a result, government officials apply discretion that allows the public to receive education while being protected from the dangers of the pandemic.

However, if we examine it in depth, we can conclude that the discretion issued by the 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.

Before this discretion emerged, the Indonesian state already had 3 regulations that were closely related to education, regional government policies, and pandemic management. The 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 the Mendikbudristek bother to stipulate the application 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 the Mendikbudristek, we can also direct the same concerns to various other discretions issued by government officials, such as discretion by the Minister of Law and Human Rights to grant citizenship status to a foreign citizen who does not yet 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 mechanism 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 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.

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.