Reforming the Limits of
Discretion and Strengthening the Police Code of Ethics in Achieving Justice in
Law Enforcement
Donny Widianto 1, Azis Budianto 2
Borobudur University, Indonesia
[email protected]
1 ,[email protected] 2
|
Keywords |
Abstract |
|
Discretion,
Police, Code of Ethics, Law Enforcement |
Effective
law enforcement requires clear regulations and high accountability. However,
the use of discretion by law enforcement officers often poses a dilemma in
maintaining a balance between flexibility and legal certainty. This study
aims to analyze the legal regulations governing police discretion and code of
ethics in Indonesia and to formulate a reform model to improve justice in law
enforcement. This
study uses a normative legal method with a legislative and conceptual
approach, which examines written legal regulations and the underlying legal
concepts. Data were collected from various relevant legal and scientific
literature sources. The results of the study indicate that the use of
undirected discretion can create injustice and reduce public trust in law
enforcement officers. Reforms are needed to limit discretion by strengthening
the police code of ethics and implementing clearer legal guidelines. The
implications of this study include the development of policies that are more
transparent, accountable, and in accordance with the principles of social
justice. This reform is expected to increase the professionalism and
legitimacy of the police in the eyes of the public. |
Writer Correspondence
: Azis Budianto
E-mail:
[email protected]
INTRODUCTION
Law
enforcement is a process that aims to ensure compliance with the laws and
regulations in force in a country
Generally,
law enforcement involves three main components: law enforcement agencies, the
judiciary, and correctional institutions. These three components play a role in
ensuring that violations of the law can be identified, processed through legal
means, and punished appropriately to uphold social justice. The main function
of law enforcement is to ensure that the established rules are enforced and
applied consistently, without discrimination, and with a strong sense of justice .
Globally,
discretion in law enforcement has become a much-discussed issue, particularly
regarding legal limits and accountability. In countries such as the United
States and the United Kingdom, reforms to the use of discretion are ongoing to
improve transparency and prevent abuse power
In
Indonesia, the use of discretion is often associated with ethical violations
and abuse of power by police officers. Several high-profile cases involving
abuse of authority demonstrate the urgent need to regulate use Discretion in a
way more strict
In
modern legal systems, discretion plays an important role in ensuring that the
law can be enforced in a more equitable manner .
flexible and adaptive
Giving
the police discretion actually creates a dilemma, because it is basically
contrary to the principle of acting according to the law. Discretion has the
potential to damage legal certainty, while one of the main functions of the law
is give certainty for public
The
use of discretion by law enforcement presents a number of challenges,
especially when there is a lack of clear guidelines or adequate oversight.
Discretion, which essentially allows police to make quick decisions based on
the situation on the ground, can be a double-edged sword. On the one hand,
discretion allows for flexibility in applying the law, which is especially
important when dealing with complex or unpredictable situations. On the other
hand, without clear rules, discretion can be a source of abuse of power,
resulting in injustice. Law enforcement, as enforcers of the law, have the
potential to abuse this discretion, making decisions that favor certain groups
or even acting on personal preferences that are not based on principles of law
or justice.
One
common problem that arises from the use of discretion is imbalance in law
enforcement. For example, discretion is often used to decide whether to detain
or release someone when caught breaking the law. In some cases, law enforcement
officers may show a tendency to be more lenient toward individuals with certain
connections or social access, while others are treated more harshly without
clear justification. This creates the perception that the law is being applied
unequally, which ultimately undermines public trust in police and law
enforcement agencies. When law enforcement uses their discretion in a biased or
self-interested manner, it can lead to serious injustices in society.
Abuse
of police discretion can have a direct impact on human rights and the
principles of justice. One concrete example of abuse of discretion is when the
police arbitrarily detain someone without sufficient evidence or a strong legal
basis, or conversely, release certain perpetrators of crimes because of
personal interference or interests. Such practices clearly violate the
principle of equality before the law and undermine public justice. In some
countries, there have been cases where such policies have been used to
disproportionately target minority or vulnerable groups, perpetuating racial or
social discrimination. Another example of abuse of discretion is when the
police decide to stop investigating a criminal case for reasons that are not
transparent.
In
some situations, the termination of these investigations is not based on
legitimate legal considerations, but rather on political pressure, personal
relationships, or corruption. This creates space for perpetrators to avoid
legal consequences, while victims of crimes do not receive the justice they
deserve. Such injustices illustrate that the use of discretion without
accountability can lead to human rights violations and undermine the integrity
of the justice system.
Several
studies have discussed the importance of discretion in law enforcement. For example ,
This
study provides an update by highlighting the relationship between legal
regulations and their implementation in police practice. Unlike previous
studies, this study proposes a comprehensive reform model through a normative
approach that includes instruments. relevant laws and institutions
This
study aims to analyze the laws and regulations governing police discretion and
code of ethics in Indonesia, and to formulate a reform model that can improve
justice in law enforcement.
RESEARCH METHODS
The
normative legal research method is an approach used to study and examine law as
a system of applicable norms. In this method, the focus of research is on
written legal rules, whether in the form of legislation, legal doctrine, or
court decisions. Normative legal research aims to analyze and understand how
existing legal rules are regulated, applied, and interpreted, and whether these
rules are in line with broader legal principles such as justice and legal
certainty. This method is often used to examine legal issues from a normative
perspective, by examining existing legal provisions and assessing their
relevance and appropriateness in practice.
Legislative
approach and conceptual approach are two main approaches in normative legal
research methods. The legislative approach focuses on the analysis of
applicable regulations, both at the national and international levels, to
identify relevant legal rules related to the problem being studied. In this
approach, researchers will study existing laws and regulations, how they are
formulated, and how they are applied in the field. The conceptual approach, on
the other hand, focuses on more fundamental legal concepts, such as justice,
freedom, or legal responsibility. This approach aims to deepen the
understanding of the legal principles underlying these regulations, as well as
to explain relevant legal concepts related to the problem at hand.
During
the research process, several challenges and limitations faced include limited
access to primary data from police institutions, which hinders more
comprehensive data collection. In addition, the limited literature that
discusses the implementation of the police code of ethics in Indonesia in depth
is also an obstacle. Another influencing factor is the dynamic regulatory
changes that require continuous data updates. These obstacles are overcome through
a data triangulation approach from trusted secondary sources and interviews
with relevant legal experts.
RESULTS AND DISCUSSION
Research result
The results of this study indicate that the reform
of discretionary limits and the strengthening of the police code of ethics in
Indonesia play an important role in creating legal justice. Data obtained
through normative analysis of regulations and the implementation of law
enforcement show that unclear discretionary limits often have the potential to
be a source of abuse of authority by law enforcement officers.
To clarify the findings, several illustrations are
presented in the form of graphs, tables and diagrams which show:
Chart 1. Trends in code of ethics violations in the
last five years
Chart
1: Trend of Code of Ethics Violation Cases (2019-2023)
This graph shows the fluctuation in the number of
cases of code of ethics violations that occurred in the last five years. The
increase in the number of cases was seen from 2020 to 2021, which then
decreased in the following two years. This indicates the potential for
strengthening internal supervision or implementing more effective regulations
during this period.
Diagram 1. Discretionary decision-making process in
the context of the Indonesian police.
Diagram 1. Discretionary Decision Making
Process
This diagram illustrates the stages of the police
discretionary decision-making process. The process begins with receiving a
report of a violation, followed by evaluating facts and evidence, and then
making a discretionary decision. This diagram shows that each stage requires
transparency and accountability to ensure that the decision is made in
accordance with the principles of justice.
Discussion
Limitations
on the Use of Discretionary Authority by Law Enforcement Officials
in
pursuit of justice
Discretion
refers to the authority given to law enforcement officers, including police, to
make decisions based on situational considerations and specific circumstances.
In the context of policing, discretion allows officers to assess and determine
the most appropriate course of action in complex and dynamic situations. This
is especially important because not all situations can be explicitly specified
by law; therefore, police need flexibility to act quickly and effectively.
Discretion includes not only administrative decisions, such as determining
whether to take a police report, but also operational actions in the field,
such as deciding whether to detain someone involved in an offense. In this
regard, discretion serves to accommodate the various social and cultural
nuances that may not be fully addressed by existing legislation.
The
importance of discretion in law enforcement cannot be overstated. Discretion
allows police to adapt to the specific contexts they encounter on the ground,
allowing for more responsive and relevant law enforcement. For example, in
emergency situations, such as an ongoing criminal incident, police may need to
use discretion to take immediate action to prevent further harm or secure the
scene. Additionally, discretion allows police to adopt a more humane approach,
such as prioritizing mediation in minor offenses, which can reduce the burden
on the justice system. However, the exercise of discretion must be done
carefully and based on the principles of fairness, transparency, and
accountability to avoid creating legal uncertainty or potential abuse of power
that could undermine public trust in law enforcement agencies.
The
police serve as an important component of criminal law enforcement, having
duties and authorities structured within a legal framework. From a legal
perspective, the duties and authorities held by the police are functionally
aimed at implementing and enforcing the law, making them the guardians of the
integrity and stability of applicable law. In this context, the police are
expected to operate within a set of established rules, including existing laws,
legal doctrines, and generally accepted principles in the field of criminal
law. As a result, law enforcers are often referred to as "law
enforcers" or "law enforcement officers", highlighting their
role in ensuring that the law is applied and enforced fairly.
Understanding
the position of the police as law enforcement officers has significant
implications for their legitimacy and accountability. The police have no
mandate or legitimacy other than to enforce the law, so every action and
decision they make must be justified in a legal context. The main
responsibilities of the police include receiving reports or complaints from the
public regarding criminal acts, conducting investigations and inquiries, and
filtering cases that meet the criteria to be brought to the prosecutor's
office. In addition, the police are also responsible for reporting the results
of the investigation to the prosecutor and protecting all parties involved in
the criminal justice process. In this sense, the role of the police cannot be
separated from the implementation of the law; once all legal orders have been
implemented, their job is considered complete.
However,
in practice, not all police tasks can be carried out in accordance with
established formal procedures. Often, they face unexpected circumstances that
require rapid situational assessment. In these circumstances, the police must
make discretionary policy decisions based on assessments relevant to the
context at hand. For example, in emergencies or when faced with unusual
violations of the law, the use of discretion becomes important to align their
actions with the realities on the ground. Without proper discretion, the police
can be trapped within rigid legal boundaries and unable to respond effectively
to the situation. These policies often require police officers to be more
flexible, allowing them to operate more effectively and responsively to the
needs of the community.
In
carrying out their duties and authorities in enforcing criminal law, the police
often face situations or conditions that force them to exercise discretion. One
of the main reasons for the use of discretion is the choice that must be made
by law enforcement officers, which depends on rational and fundamental
judgments. However, each of these options faces possible alternatives, where
ideally, the law should provide the right and accurate solution for each case.
Difficulties in interpreting the law often arise from the ambiguous and unclear
nature of legal language, thus creating uncertainty (uncertainty) regarding the
legislator's intent. Legal philosopher Ronald Dworkin argues that when there is
a legal gap, or a situation where the law does not fully provide the right
answer, the decisions made by law enforcement officers cannot be fully
regulated by the standards set by legal authorities.
Another
reason for the use of discretion relates to the inherent inconsistencies in
legal grammar, which often create uncertainty. Hartian
positivist thinking highlights semantic problems in law that can lead to
confusion and challenges in the application of the law. In this context,
discretion becomes a legitimate tool to address the problems faced by legal
officials. In addition, the existence of legal gaps is another source of
discretionary use, where legal interpretation is required to choose from a variety
of alternative solutions when there is no clear normative answer. This legal
vacuum is not only related to semantic ambiguity, but can also occur in
situations where there is no applicable legal rule .
For finish problem certain .
Contradictions
or inconsistencies between different laws also pose challenges for police
decision-making. When different legal effects are applied to the same factual
conditions, a conflict of norms arises that requires resolution. In such
situations, police and prosecutors must determine which norm is relevant to
apply. If more than one norm governs a particular issue, law enforcement
officers have the autonomy to choose the criteria they deem appropriate to make
a decision. Therefore, the use of discretion is essential in helping police
navigate the complexities of the law, although it must still be done carefully
and with due regard to the principles of justice and compliance with applicable
law. This ensures that the actions taken are not only effective but also
legally accountable.
From
the conditions discussed, it can be concluded that problems related to the use
of discretion among law enforcement officers, such as police and prosecutors,
often arise due to the lack of clear guidelines, or, if there are any, they may
be abstract and difficult to apply in practice. This leads to the application
of discretion that is highly dependent on individual subjectivity. When law
enforcement officers have a strong understanding of moral and ethical values,
they tend to use discretion in a way that fosters a sense of justice and
tranquility in society. Conversely, if a police officer or prosecutor ignores
moral and ethical values, the use of discretion can result in arbitrary actions
that harm society and reduce public trust in legal institutions.
Discrimination
lies at the intersection of law and morality. For law enforcement officers who
are deeply involved in their profession, moral values serve as a guiding force
that directs their actions to a higher standard. Therefore, every law
enforcement officer is expected to have a strong moral foundation to guide them
in making decisions. These moral values must be regulated by clear norms that
are applied in the code of ethics of the legal profession. This code of ethics
is an important guideline for law enforcement officers in implementing
discretion, ensuring that decisions taken are not only based on legal
considerations, but also consider fundamental moral and ethical aspects.
However, in practice, law enforcement officers have not fully adopted a clear
and comprehensive code of ethics. Even if they have a code of ethics, the
formulation is often too abstract and does not provide concrete guidance. In
addition, this code is not supported by firm and strong sanctions as found in
positive law, such as statutes. The lack of clear guidelines and adequate
sanctions in the code of ethics of the profession makes it very challenging to
monitor the use of discretion by law enforcement officers.
Meanwhile,
the code of ethics in the police and prosecutor's office cannot function as an
effective reference, because it does not have binding authority, either
individually or institutionally. As a result, control over the use of
discretion by law enforcement officers becomes weak and ineffective. In this
situation, it is very important to strengthen the existing code of ethics by
providing more concrete definitions and guidelines while including clear
sanction mechanisms. This aims to ensure that the code of ethics can truly
become a guideline that is expected to limit and direct the application of
discretion in the law enforcement process. Ambiguity in the code of ethics can
make law enforcement officers feel free to act according to their personal wishes,
without clear accountability. This can create opportunities for abuse of power
and arbitrary actions, which ultimately harm justice and reduce public trust in
legal institutions.
Abuse
of discretion by police officers is a serious problem that can lead to a
variety of negative risks affecting the individuals involved and the police
agency itself. One potential risk of discretionary abuse is decisions made
without considering the principles of fairness and equality. When officers use
discretion to bypass existing legal procedures, or when their decisions are
based on personal preferences or biases, this can result in unfair treatment of
the public. For example, in handling certain cases, an officer may be more
inclined to show leniency to certain individuals while imposing harsher
sentences on others without clear justification. This situation not only
undermines fairness but also creates the impression that the law can be
negotiated or selectively enforced, eroding public trust in the legal system.
The
impact of discretionary abuse can be very damaging to public trust in the
police as a law enforcement agency. When people feel unfairness in the
application of the law, they tend to lose confidence that the police are acting
in the public interest. This decline in public trust can have implications for
the relationship between the public and law enforcement, making people
reluctant to cooperate in reporting crimes or providing necessary information
to the police. In the long term, this decline in trust can lead to weaknesses
in law enforcement efforts, as citizens do not feel safe or protected by the
institutions that are supposed to protect them.
In
addition, abuse of discretion can also affect the legitimacy of the police
institution itself. When arbitrary actions or abuse of power are exposed, the
police institution can experience a crisis of legitimacy, affecting its image
and reputation in the eyes of the public. In such a situation, the police
institution can be labeled as unreliable and unfair, which in turn can worsen
the relationship between the police and the community. With increasing public
scrutiny and demands for accountability, continued abuse of discretion can
trigger protests or even social movements calling for reforms in law
enforcement institutions.
Reform Efforts in Limiting Discretion and
Strengthening the Police Code o
Ethics to Enhance Fair Law Enforcement
The
current situation regarding the use of discretion by police officers in
Indonesia presents a complex challenge, where freedom of decision-making is
often accompanied by the risk of abuse of power. While discretion is needed to
address dynamic and diverse situations on the ground, the practice is often
marked by uncertainty and ambiguity in existing guidelines, which ultimately
leads to injustice in law enforcement. Many cases show that the use of
undirected discretion can result in inconsistent treatment of individuals or
groups, creating perceptions of bias and discrimination in law enforcement. As
a result, public trust in the police decreases, making the public reluctant to
collaborate with law enforcement officers, and worsening relations between the
police and the community. In addition, abuse of discretion can trigger human
rights violations and erode the legitimacy of the police institution as an
entity that must protect and uphold justice.
Discretion
is the authority held by police officers to make decisions or choose certain
actions in handling violations of the law or criminal cases. The use of
discretion is very important because decisions made by the police must consider
various aspects, including ethical standards, as well as comply with applicable
legal provisions. Individual discretion refers to discretionary actions taken
by officers in the field without the need for guidance from superiors. For
example, an officer can signal for traffic to continue even though the traffic
light is red to avoid congestion. However, actions such as rejecting a case,
deciding whether to detain a suspect, or stopping an investigation do not
qualify as individual discretion; it falls into the category of bureaucratic
discretion, where decisions are made based on organizational policies that have
been agreed upon within the police organization.
Discretion
is particularly relevant in the context of police work for several reasons.
First, laws are often written in overly general language, making them difficult
to use as detailed guidelines for officers in the field. Second, laws should
serve as a means to achieve justice and maintain order, not the sole means to
achieve those ends. Third, considerations of officers� resources and
capabilities also influence the discretionary actions taken. James Q. Wilson
identifies four types of discretionary action situations: first,
police-requested law enforcement, in which the police have broad grounds for
using discretion; second, citizen-requested law enforcement, in which the
public takes the initiative and discretion is unlikely; third, police-requested
order maintenance, in which discretion and leadership control are balanced; and
fourth, citizen-requested order maintenance, in which the exercise of
discretion is necessary even without the approval of a superior.
In
practice, the law does not always apply rigidly to all individuals and in every
situation, as outlined by the law. A narrow perspective in criminal law may be
contrary to the purpose of the law itself, which is to create justice for
society. If every social activity is strictly regulated, daily life can become
burdensome and unpleasant. Therefore, law enforcement officers are expected to
be able to filter every case that enters the legal process, using discretion as
a tool to achieve justice. Selective law enforcement, a form of bureaucratic
discretion, occurs when decisions are made based on organizational priorities
rather than solely on legal grounds. In formal criminal law, police actions to
ignore a case cannot be justified, given the uncompromising nature of criminal
law. Sociological considerations that are often used in practice can be
subjective and situational, thus requiring a strong legal basis to provide
legal certainty for investigators and the public. Discretion can also be
influenced by ambiguity in understanding the law regarding discretionary
authority, as well as policies from officials in the bureaucracy who can
support discretionary actions to meet operational needs or personal interests.
In addition, a weak control system contributes to the abuse of discretion. The
public's reluctance to resolve their cases through legal channels also worsens
this situation.
The
use of discretion by police officers must be based on a strong legal basis to
avoid misunderstanding as a tool for personal gain. Some laws that underlie the
application of discretion in the criminal law enforcement process in Indonesia
include Article 15 paragraph (2) and Article 16 paragraph (1) letter l of Law
No. 2 of 2002 concerning the Republic of Indonesia National Police, which gives
the police the authority to act in accordance with the law and responsibility.
This action must meet the criteria of validity, fairness, and respect for human
rights. In addition, Article 5 paragraph (1) letter a number 4 and Article 7
paragraph (1) letter j of the Criminal Code also empower investigators to take
other actions in accordance with the law. Discretion can also be based on
customary law, as seen in Bali with the practice of cockfighting, where the
police can choose not to take action against the activity, even if it is
categorically illegal gambling.
Although
the police have the authority to act based on personal judgment, the exercise
of discretion should not be arbitrary. Discretion must remain within the
framework of existing laws and authorities. Several considerations can be
prioritized in the exercise of discretion in resolving criminal cases,
including expediting the resolution of cases, preventing a backlog of cases,
and achieving a mutually beneficial solution for the parties involved. In
addition, compassion for the victim can be a reason not to prolong the case,
especially if the parties have agreed to resolve the problem peacefully through
reparation.
Despite
the importance of discretion as a tool in the performance of police duties,
there are currently no clear and definitive rules that limit the use of
discretion in law enforcement. The absence of detailed guidelines often leads
to uncertainty in decision-making by law enforcement officers. As a result,
discretionary actions can vary significantly from officer to officer, depending
on the individual�s understanding and interpretation of the situation at hand.
This potential creates opportunities for arbitrariness and abuse of power,
where some officers may exploit their discretion for personal gain or to avoid
legal responsibility. Without clear boundaries, discretionary actions can lead
to injustice and inconsistent law enforcement, harming the citizens they are
supposed to protect.
A
concrete example of this problem can be found in cases where the police choose
not to pursue clear violations of the law based on subjective and unjustified
reasons. For example, in cases of gambling involving local cultural activities,
such as cockfighting in Bali, the police may choose not to take action, even if
the behavior violates the law. Such choices, while potentially based on social
and cultural considerations, highlight gaps in the legal guidelines that should
govern discretionary measures. Without strict oversight and a clear legal
framework, the potential for abuse of discretion remains a significant
challenge in law enforcement, which can ultimately undermine public trust in
the police.
Efforts
to reform the limitations on discretion and strengthen the police code of
ethics are essential to ensure fair and transparent law enforcement. There is a
need to develop and refine regulations governing the use of discretion by
police officers. These regulations should provide clear and firm guidelines
regarding the limits of discretion that officers can exercise. This includes
defining the situations in which discretion can be applied, as well as the
criteria that must be met in order to use discretion. With concrete guidelines
in place, it is hoped that every discretionary action can be accounted for and
free from potential abuse.
Reforms
must also include strengthening the police professional code of ethics. This
code of ethics must be formulated with the involvement of all elements within
the police institution and reflect high moral and ethical values. Enforcement
of the code of ethics must be taken seriously, including imposing strict
sanctions on those who violate it. Through ongoing training and education,
police officers are expected to understand the importance of ethics in carrying
out their duties and internalize the values of justice and propriety in every
decision-making process involving wisdom. Thus, it is hoped that the
discretionary actions taken will be more in line with the public interest than
just personal judgment.
To
support these reform efforts, it is essential to increase transparency and
accountability in the implementation of police duties. This can be achieved
through stricter oversight mechanisms, both from within the police institution
itself and by civil society. The public must be involved in the process of
monitoring and reporting discretionary actions that are considered deviant,
providing channels for complaints or reporting abuse of discretion. In
addition, the application of information technology in supervision can serve as
an effective tool for real-time monitoring of police actions. With a
combination of these efforts, it is hoped that reforms in limiting discretion
and strengthening the police code of ethics can be realized, creating a fairer
and more trustworthy law enforcement system.
CONCLUSION
The
use of discretion in law enforcement by police officers shows that, although
discretion plays an important role in handling various legal situations
flexibly and responsively, its application must still be well managed to avoid
abuse. Discrimination carried out without clear guidelines has the potential to
create injustice and damage public trust in the police institution. Therefore,
it is important to develop and implement strict regulations, as well as a code
of ethics that governs the wise use of discretion, so that every decision taken
by law enforcement officers can be accounted for and in line with the
principles of justice.
In
addition, ongoing reform efforts in the law enforcement system are essential to
improve accountability and transparency. Community involvement in the oversight
process, as well as the use of information technology, can be strategic steps
to ensure that discretionary actions taken by police officers are not only
oriented towards efficiency but also towards justice and human rights. Thus,
these reforms will help create a more professional and ethical police
institution that can meet public expectations for fair law enforcement. The
success of these reforms will have a positive impact on the legitimacy of the
police institution and increase public trust in the law as a means to achieve
social justice.
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