Discretion as a Legal Practice for Government Officials

ADCO Law

Discretion is one of many legal terms that is well known both academically and practically. Discretion is exercised by authorities e.g., Government Officials who carry out government affairs, especially in carrying out public interests. In order to be able to carry out the task of administering public welfare, Government Officials administratively need the freedom to act on their own initiative, especially in resolving critical problems that arise suddenly, or cases in which the regulations have yet to exist. This legal practice will be explained further in this article.

A. Definition of Discretion

Basically, according to the Legal Dictionary (2009:38), “Discretion or freies ermessen means freedom to make decisions in every situation faced according to his/her own opinion. Meanwhile, according to Ridwan (in Tiga Dimensi Hukum Administrasi dan Peradilan Administrasi, 2009:80), Discretion is defined as one of the means that provides space for Government Officials or agencies to take action without being fully bound by law, or to take action by prioritizing the achievement of goals (doelmatigheid) rather than in accordance with the applicable laws (rechtmatigheid). This is confirmed by Law Number 30 of 2014 on Government Administration (“Law 30/2014”), which stipulates that discretion is a decision or action that is determined or carried out by Government Officials to overcome concrete problems faced in the administration of government in terms of laws and regulations, which provide choices that are unregulated, incomplete or unclear, or if there is stagnation of government. Therefore, discretion is made mainly because there are:

1. emergency conditions that make it impossible to apply the written provisions;
2. no regulations governing the case;

iii. regulations that exist but the editorial is vague or has multiple interpretations

Based on the understanding above, Discretion is essentially a freedom of action or freedom to make decisions for Government Officials or agencies according to their own opinion as a complement to the principle of legality when the applicable law is unable to solve certain problems that arise. This can happen because the regulations do not exist, or because the existing regulations are not clear to be referred to in deciding cases.

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B. Consequences of Discretion

The logical consequence of the existence of discretionary authority is that Government Officials are given the authority of a droit function, that is, the power to interpret a statutory regulation, but that does not mean that the Government Officials can act arbitrarily. Government Officials are prohibited from taking actions that are detournement de pouvoir (doing something outside the purpose of the given authority) or onrechtmatige overheidsdaad (acting against the law). This is because every act that harms citizens due to detournement de pouvoir or onrechtmatige overheidsdaad can be prosecuted either through state administrative courts or through general courts.

C. Limits of Discretion

Article 24 of Law 30/2014 stipulates that there are limits to discretion where Government Officials who use discretion in making decisions must take into account the purpose of Discretion, laws and regulations that form the basis for discretion, and general principles of good governance. From this formulation, the use of Discretion and government policy making based on State Administrative Law must be in accordance with the General Principles of Good Governance (“Asas-Asas Umum Pemerintahan yang Baik, “AUPB”), in particular the principle of prohibition of abuse of authority (detournement de pouvoir) and the principle of arbitrary prohibition (willekeur).

D. Purpose of Discretion

In accordance with Law 30/2014, the purposes of the use of discretion by Government Officials are as follows:

1. expedite the administration of government;
2. fill legal voids;
3. provide legal certainty and
4. overcome the stagnation of government in certain circumstances for the benefit of public interests.

 

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E. Use of Discretion

The use of discretion by Government Officials can only be carried out in certain cases where the applicable laws and regulations do not regulate the cases, or because the existing regulations are not clear. Discretion is exercised in an emergency/urgent situation for the sake of the public interest that has been regulated in legislation. Such emergency/urgent situations should at least contain the following elements:

1. The problem that arise must involve the public interest, namely, the interests of the nation and state, the interests of the wider community, the interests of the common people, and the interests of development;
2. The problem appears suddenly which is outside the predetermined plan;
3. The laws and regulations have not regulated the matters, or only regulate them in general, so that Government Officials have the freedom to resolve the problems on their own initiative;
4. The procedure cannot be completed according to ordinary administrative procedures, or if completed according to ordinary administrative procedures, it will be less successful;
5. The problem will cause harm to the public interest If it is not resolved quickly.

Government Officials or Entities that have the authority to use discretion are:

1. President;
2. Ministers or Minister-level Officials;

iii. Commander of the Indonesian Armed Forces and Chief of Staff of the Army, Navy and Air Force;

1. Head of the State Police;
2. Chairperson of the Commission/Board and equivalent Institution;
3. Governors;

vii. Regents and Mayors;

viii. Echelon I Officials in Central and Provincial Governments;

1. Regency/City Regional Secretaries;
2. Head of Agency.

The following are Operational Officials who have the authority to use discretion because their duties are directly related to public service; (1) The head of the resort of the State Police and (2) the subdistrict head other than the positions mentioned above.

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Disclaimer: This article has been prepared for scientific reading and marketing purposes only from ADCO Law. Accordingly, all the writings contained herein do not constitute the formal legal opinion of ADCO Law. Therefore, ADCO Law should be held harmless of and/or cannot be held responsible for anything performed by entities who use this writing outside the purposes of ADCO Law.