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.