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.
It remains within the discretion of the previous Minister of Education, Culture, Research, and Technology, and we cannot assess whether the issuance of this discretion will address the normative disparities concerning the existing issues. The norms in question are those within the 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 refers to “the conditions and characteristics of the pandemic 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.
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