Definition of Decretion – Act. government regulations, ministerial regulations, and a series of other legal regulations are not always on target and regulate clearly and completely. Therefore, discretion is needed as a solution to regulate events or incidents where there are no regulations or laws governing them.
Discretion is usually carried out by state institutions that deal with administrative matters. This is necessary in order to cut the long and lengthy procedures if you have to apply to the central legislature. So, discretion is a way to handle cases or problems quickly and precisely.
In its application, government officials may not apply discretion haphazardly. Only for personal or group interests. Regulations regarding discretion are regulated in Law no. 30 of 2014 concerning Government Administration.
Let’s get to know more deeply what discretion is and how it is applied.
Definition of Discretion
In Article 1 point 9 of Law no. 30 of 2014 concerning Government Administration, it is stated that discretion is a decision and/or action that is determined and/or carried out by government officials to address concrete problems faced in administering government in terms of laws and regulations that provide choices, do not regulate, are incomplete or not. clear, and/or there is government stagnation.
Discretion or pouvoir discretionnaire or freies ermessen is used when there are no important and urgent events or events, but there are no government regulations that regulate it, so the relevant state institutions can issue regulations or take action so that the problem can be resolved.
The existence of policy regulations cannot be separated from the free authority ( vrijebevoegdheid ) of the government which is familiarly known as Freies Ermessen. In language, freies ermessen comes from the word frei which means loose, free, not bound, and independent. Meanwhile, ermessen means assessing, estimating, guessing, and considering.
It can be concluded that Freies Ermessen is a person who has the freedom to suspect, judge, and consider something. This makes it easier for government officials or state administration agencies to take action without having to be fully bound by law.
According to Nana Saputra, discretion ( freies ermessen ) is a freedom given to administrative tools, namely freedom which in principle allows state administration tools to prioritize the effectiveness of achieving a goal rather than adhering to legal provisions. Legal authority to intervene in social activities in order to carry out the tasks of carrying out the public interest.
Meanwhile, Bahsan Mustafa defines that freies ermessen is given to the government considering the function of government or state administration, namely carrying out general welfare which is different from the function of the judiciary to resolve disputes between residents. Government decisions in this context prioritize the achievement of goals or objectives ( doelmatigheid ) rather than complying with applicable law ( rechtmatigheid ).
Purpose of Use Discretion
The following are discretionary purposes regulated in article 22 of Law no. 30 of 2014 concerning Government Administration.
- Launching governance.
- Filling legal voids
- Provide legal certainty
- Overcoming government stagnation in certain circumstances for the benefit and public interest.
Elements of Discretion ( freis ermessen ) in the rule of law
The government or state administration institutions have authority over the use of the principle of discretion ( freis ermessen ). However, it cannot be used haphazardly. The use of discretion must fulfill some of the elements of freis ermessen in a rule of law. Following are the details according to Sjahran Basah’s opinion.
- Intended to carry out public service tasks.
- Is the attitude of active action of the state administration.
- This attitude is permitted by law.
- This attitude was taken on his own initiative.
- This attitude is intended to resolve important issues that arise suddenly.
- This attitude can be accounted for both morally to God Almighty and legally.
Discretionary Use Procedure
The following is the procedure for using discretion regulated in article 26 of Law no. 30 of 2014 concerning Government Administration.
- Officials who use discretion as referred to in Article 25 paragraph (1) and paragraph (2) are required to describe the intent, purpose, substance, as well as administrative and financial impacts.
- Officials who use Discretion as referred to in paragraph (1) are required to submit a request for approval in writing to the Official Superior.
- Within 5 (five) working days after the application file is received, the Official Superior determines approval, instructions for improvement, or rejection.
- If the Official Superior as referred to in paragraph (3) makes a refusal, the Official Superior must provide reasons for the refusal in writing.
Consequences of Using the Law of Discretion
The following are the consequences of using discretionary law regulated in article 30 of Law no. 30 of 2014 concerning Government Administration.
- The use of discretion is categorized as exceeding the authority if:
- act beyond the validity period of the Authority granted by the provisions of the laws and regulations;
- acting beyond the boundaries of the area where the authority is granted by the provisions of laws and regulations; and/or
- not in accordance with the provisions of Article 26, Article 27, and Article 28.
- The legal consequences of using Discretion as referred to in paragraph (1) become invalid.
Authority of Government Officials in Making Decisions
Government officials have the right to exercise authority in making decisions and/or actions. The following is the authority possessed by government officials based on Article 6 of the Law of the Republic of Indonesia Number 30 of 2014 concerning Government Administration.
- Carry out the Authority owned based on the provisions of laws and regulations and AUPB.
- Carry out government activities based on the authority they have.
- Establishing Decisions in written or electronic form and/or stipulating Actions.
- Publish or not issue, amend, replace, revoke, postpone, and/or cancel Decisions and/or Actions.
- Using Discretion according to its purpose.
- Delegating and giving Mandates to other Government Officials in accordance with the provisions of laws and regulations.
- Appoint a daily executor or task executor to carry out the task if the definitive official is absent.
- Issuing Permits, Dispensations, and/or Concessions in accordance with the provisions of laws and regulations.
- Obtain legal protection and security guarantees in carrying out their duties.
- Obtain legal assistance in carrying out their duties.
- Resolving Authority Disputes in the environment or area of authority.
- Completing Administrative Efforts proposed by the community for the Decisions and/or Actions they have made.
- Imposing administrative sanctions on subordinates who commit violations as regulated in this Law.
Obligations of Government Officials
Discretion is an obligation for government officials. However, the task of government officials is not only concerned with determining discretion. The following are the obligations of government officials based on article 7 of the Law of the Republic of Indonesia Number 30 of 2014 concerning Government Administration.
- Make decisions and/or actions according to their authority.
- Comply with AUPB and in accordance with statutory provisions.
- Comply with the requirements and procedures for making Decisions and/or Actions.
- Comply with this Law in using Discretion.
- Providing Official Assistance to Government Agencies and/or Officials requesting assistance to carry out certain government administrations.
- Provide opportunities for community members to have their opinions heard before making decisions and/or actions in accordance with statutory provisions.
- Notify the Community regarding Decisions and/or Actions that cause losses no later than 10 (ten) working days after the Decisions and/or Actions are determined and/or carried out.
- Develop standard operating procedures for making decisions and/or actions.
- Examining and researching Government Administration documents, as well as opening access to Government Administration documents to Citizens, unless otherwise stipulated by law.
- Issuing a Decision on the Community Citizens’ request, in accordance with the matters decided in the objection/appeal.
- Carry out legal decisions and/or actions and decisions that have been declared invalid or canceled by the court, the official concerned, or the official’s superior.
- Comply with Court decisions that have permanent legal force.
Terms of Using Discretion
Discretion can be exercised in critical circumstances. Government administrators can exercise discretion when meeting the following conditions and/or critical circumstances.
- There are no laws and regulations that regulate the inconcreto settlement of a particular problem, while the problem demands an immediate resolution. For example, in the face of a natural disaster or an outbreak of an infectious disease, government officials must immediately take actions that are beneficial to the state and society, actions that arise on their own initiative.
- The laws and regulations that form the basis for the actions of government officials provide complete freedom. For example, in granting permits based on Article 1 Hinder Ordonantie (HO), each licenser is free to interpret the meaning of “causing a state of danger” in accordance with the situation and conditions of their respective regions.
- The existence of statutory delegation means that government officials are given the power to self-regulate, which in fact is the power of officials at a higher level. For example, in exploring regional financial sources. Local government is free to manage it as long as the sources are legitimate sources.
Meanwhile, in article 24 of Law no. 30 of 2014 concerning Government Administration the requirements for government officials to use discretion are as follows.
- In accordance with the purpose of discretion as referred to in Article 22 paragraph (2).
- Does not conflict with the provisions of the legislation.
- In accordance with AUPB; d. based on objective reasons.
- Does not create a conflict of interest.
- Do it in good faith.
Scope of Government Discretion
In article 25 of Law no. 30 of 2014 concerning Government Administration states that the discretionary scope of government officials includes the following matters.
- Making decisions and/or actions based on the provisions of laws and regulations that provide a choice of decisions and/or actions.
- Making decisions and/or actions because laws and regulations do not regulate.
- Decision making and/or action due to incomplete or unclear laws and regulations.
- Making decisions and/or actions due to government stagnation for wider interests.
Benefits of Discretion for Government Institutions
According to JH van Kreveld, policy rules have the following characteristics.
- The regulation, directly or indirectly, is not based on the provisions of a formal law or the Constitution which gives the authority to regulate, in other words, the basis for the regulation is not found in the law.
- The regulations are unwritten and arise through a series of decisions by government agencies in exercising free government authority over citizens, or are stipulated in writing by the said government agency.
- The regulation provides general instructions, in other words without statements from individual citizens regarding how government agencies exercise their free government authority over each individual citizen who is in the situation formulated in the regulation.
According to Manan, the characteristics of policy regulations are as follows.
- Policy regulations are not statutory regulations.
- The principles of limitation and testing of statutory regulations cannot be applied to policy regulations.
- Policy regulations cannot be tested wetmatigheid, because there is indeed no statutory basis for making decisions on these policy regulations.
- Policy regulations are made based on Ermessen freies and the absence of relevant administrative authority makes statutory regulations.
- Testing of policy regulations is more left to the doelmatigheid and therefore the test stones are the general principles of proper governance.
- In practice, formats are given in various forms and types of rules, namely decisions, instructions, circulars, announcements and others, and can even be found in the form of regulations.
The characteristics described above form the basis for determining similarities between statutory regulations and policy regulations. These equations were put forward by A. Hamid Attamimi as follows.
1. Generally Applicable Rules
Legislation and policy regulations have the same address or norm subject and regulation of behavior or norm object, which are general and abstract in nature (algemene regeling or algemene regel).
2. Rules Applicable “Outside”
Laws and regulations apply ‘outside’ and are aimed at the general public ( naar buiten werkend, tot een ieder gericht ), as well as policy regulations apply ‘outside’ and are aimed at the general public concerned ( jegens de burger ).
3. General/Public Regulatory Authorities
Legislation and policy regulations are stipulated by institutions/officials who have general/public authority for this purpose.
Meanwhile, according to A. Hamid Attamimi the differences between legislation and policy regulations are as follows.
- Formation of laws and regulations is a function of law formation through legislation carried out by the people themselves, by people’s representatives or at least with the approval of people’s representatives. Power in the field of legislation or legislative power is only given to a special institution for that purpose, namely the legislature (as a state organ, which acts for and on behalf of the state).
- The function of forming policy regulations lies with the government in a narrow sense (executive). Government authority in a narrow sense or administration (executive authority) also contains the authority to form regulations in the framework of implementation. Therefore, the authority to form policy regulations aimed at further regulating the administration of government can always be exercised by any government institution that has the authority to administer government.
- The material content of laws and regulations is different from the content of regulations. Policy regulations contain content related to the authority to make decisions in the sense of beschikkingen, the authority to act in the field of private law, and the authority to make plans (planen) which do exist in government institutions . . Meanwhile, the material content of laws and regulations governs the life of society which is far more basic, such as issuing orders and prohibitions to act or not act, which if necessary is accompanied by criminal sanctions and coercive sanctions.
- Sanctions in statutory regulations and in policy regulations. Criminal sanctions and coercive sanctions that clearly reduce and limit the human rights of citizens and residents can only be set forth in laws whose formulation must be carried out with the consent of the people or with the approval of their representatives. Other lower statutory regulations can only include criminal sanctions for violations of their provisions if this is expressly attributable to law. Policy regulations can only include administrative sanctions for violations of their provisions.