Participatory Discretion as a Means of Strengthening Democratic Legitimacy in the Formulation of Policy Regulations (Beleidsregel)

Abstract

Policy regulations (beleidsregels) constitute administrative instruments established through discretionary authority to address public needs when statutory regulations are absent or insufficient. In practice, however, the formulation of such policies is often conducted in a non-transparent manner with limited public participation, despite their potential impact on society. This condition raises issues of democratic legitimacy and creates risks of abuse of power in policy implementation. This study aims to analyze the democratic legitimacy of policy regulations and to formulate normative indicators of participatory discretion as a complement to the principle of legality and the General Principles of Good Governance (Algemene Beginselen van Behoorlijk Bestuur). This research employs a prescriptive normative legal method using statutory and conceptual approaches. Legal materials were analyzed qualitatively through deductive legal reasoning to assess the adequacy of discretionary regulations under Law Number 30 of 2014 on Government Administration and its amendments, as well as the practice of policy rule-making. The findings indicate that the regulation of discretion in Indonesian positive law remains general in nature and has not explicitly integrated democratic legitimacy and public participation principles. As a scientific contribution, this study proposes indicators of participatory discretion, including policy urgency and objectively testable reasons, consideration of policy alternatives, transparency in the decision-making process, meaningful public participation, orientation toward the public interest free from conflicts of interest, and legal as well as moral accountability. These indicators are expected to serve as normative benchmarks for strengthening the democratic legitimacy of policy regulations in Indonesia.