Between Unitary State and Regional Pluralism

Civis Vol. 2, No. 3, Dec 2010

Law No. 32 of 2004 on Regional Government which governs the implementation of regional autonomy is a law that shoulders the constitutional mandate, in particular article 18 of the 1945 Constitution. This law on Local Government is part of the decentralization process which aims to achieve equitable development and local empowerment.

Discourse to revise Law no. 32/2004 has been rolling since 2007. One issue that still needs to be resolved is the confusion in defining central and local relations in the context of a unitary state that also maintain and develop resources, uniqueness, and identity of each region.

The expansion of local government authority since the 1998 reform has its own complexity and uniqueness. Since the implementation of decentralization and regional authority empowerment, the concept of a unitary state seems to be at odds with the conect of regional autonomy.

The concept of a unitary state was agreed upon during the 2001-2004 amendment process as a form of government that cannot be contested, as set out in the 1945 Constitution article 37 paragraph 5. In the context of Indonesia’s democracy, sovereignty lies in the indivisible people and nation of the Republic of Indonesia. But on the other hand, as regional autonomy becomes more effective and widespread it will bring itself as an identity with its own independence.

Unlike the federal system in which sovereignty is in each region/state, in the context of the Unitary Republic of Indonesia, sovereignty lies in the hands of central government which is the personification of the entire people of the unitary state. Local governments are given authority by the central government. Thus, although they are directly elected, regional heads receive their authority and sovereignty from the central government (i.e. Central Government as the representative of the people of Indonesia) and not from below (i.e. the people of the region only).

Thus the Law on Local Government becomes the key framework and determinant in deciding the parameters governing the concepts of unitary state, autonomy development, and regional identity.

Clarifying the Relationship and Hierarchy in Law no. 32/2004

Due to some political considerations during the Reform Period, the Regional Autonomy was aimed directly at the Region level Two, equivalent to what is currently called the city and municipal levels of government. In addition to narrowing the gap between the local government and communities, this devolvement of power at municipal level is expected to reduce the possibility of a desire to break away in the regions at the higher provincial level.

The handing out of autonomy directly at the municipal/city level and the abolition of governmental understanding of level I (provincial) and level II (municipal/city), resulted in a lack of clarity in roles, relationships and hierarchies between each level of government.

The Governor as the head of the provincial government area is referred to as being responsible to the president and is a representative of the government, according to the Article 37 of Law no. 32 of 2004. In the meantime, it is not explicitly described to whom the mayor or the head of the regents is responsible. Implicitly, the responsibility of local government municipal or city is focused more at the Local Parliament (DPRD).

It is as if there exists a broken chain of authority and responsibility flowing from the province to the municipal/city. This resulted in confusion between the rights, obligations and responsibilities between provincial and municipal/city. The distinction concerning the Mandatory Obligation that is assigned to the provincial government in article 13 but contrastingly gets assigned to the municipal/city in article 14 feels to overlap or contradict each other. So consequently, the implementation of the jurisdiction, authority, and hierarchy of the autonomy is unclear.

Furthermore, arrangements in the next chapter on financial sector issues (article 15), public service (article 16), and natural resources (article 17) state the relationship between central and local government without any clarity about the particular level of local government. This creates a potential source of confusion.

Conversely, some division of authority that has been set out clearly fails in its implementation. In article 10 of the division of governmental affairs for example, the distinction of authority between Local and Central Government is clearly described. Government affairs responsibilities of the Central Government in paragraph 3 states include: foreign policy, defense, security, justice, monetary, and religious affairs.

But in reality, many Local Governments have issued regulations that touch religious areas. The rise of Sharia Law regulations and other religious regulations are clearly visible as an overstepping of the boundary of authority which actually belongs to the central government.

In maintaining national unity and at the same time developing and empowering the region through greater autonomy, hierarchies and relationships between governmental units need to be further refined. The Local Government with all its authority needs to be satisfactorily distinguished more clearly with Provincial Governments and Local Governments at district level. The relationship between the Provincial and the District governments also need to be described more explicitly.

In addition, the Regional House of Representatives (DPRD) needs to be distinguished further between Provincial DPRD and Municipal DPRD. Then there needs to be a review, is the Parliament required at those two levels?

With clearer relations between Local Government and its instruments at various levels, the region should be able to develop themselves with more focus in-line with their own identity and uniqueness.**

Author

Tobias Basuki, M.A. is Director of Studies at the Leimena Institute.