PERTANGGUNGJAWABAN DISKRESI PEMERINTAH DAN HUBUNGANNYA DENGAN HAK ASASI MANUSIA BERDASARKAN UNDANG-UNDANG NOMOR 30 TAHUN 2014 TENTANG ADMINISTRASI PEMERINTAHAN

Abstract

This research answers the question in detail about the limits of the use of discretion in the administration of government and how the mechanism of legal accountability when abuse of authority occurs. As a country that adheres to the concept of a welfare state, the application of the principle of legality alone is not enough to meet the demands of dynamic public services. Discretion is present as an important instrument to overcome the limitations of the principle of legality (wetmatigheid van bestuur), especially in filling legal gaps and dealing with emergency situations. In this case, the discretionary authority by Government Officials must all meet the following three conditions: (1) the absence of regulation in the legislation, (2) the unclarity of existing legal norms, or (3) the emergency that threatens the public interest. Its implementation must be guided by the General Principles of Good Governance (AUPB) as a normative guideline, the AUPB Principles not only function as a limiting authority, but also as a parameter of legal accountability when there is an abuse of discretionary authority. However, this study found that discretionary practices have the potential to clash with Human Rights (HAM) principles if not balanced with transparent accountability mechanisms. This research emphasizes the importance of striking a balance between government freedom through discretion and the protection of citizens' rights