By:
E.
Koswara Kertapradja, Prof. Dr.[2]
The discussion on decentralization and regional
autonomy based on the assumption that the relationship between the government
and the governed, likewise the relationships between Central Government and
Local Government, which is the classical problems in political science.
The main problem is how far do the society and local
government have the discretionary power to move and initiate within the
environment of the state souvereignty, and also how far the local society could
be able to influence the state policy. This is the basic thought of
decentralization and autonomy concept which should be viewed as an political
phenomenon and public administration as well.
New paradigm of decentralization is a challenging for
the State and Nation of Indonesia in terms of understanding that unity of the Nation is prerequsite. In
other words, although we adopt the decetralization policy, and most of the
authority have been given to local government, it does not mean that local
government has been “independent” and
separated from the national government, but a local government is a sub-system
of national government, that mean the local government is sub-ordinated by
national government, the local government is an integral part of the Unitary
State of the Republic of Indonesia.
The Government of the Unitary State of the Republic of
Indonesia, is not involved to the system for “Centralism” in governmental
power, but adopted the principle of
decentralization in terms of devolution
of power to local authorities, as stated at the constitution that the
Unitary State of the Republic of Indonesia is devided into provinces and the
province is devided into kabupaten (district) and cities or municipalities.
1. THE PHILOSOFICAL BACKGROUND
The discussion on decentralization and regional
autonomy based on the assumption that the relationship between the government
and the governed, likewise the relationships between Central Government and
Local Government, which is the classical problems in political science.
The main problem is how far do the society and local
government have the discretionary power to move and initiate within the
environment of the state souvereignty, and also how far the local society could
be able to influence the state policy. This is the basic thought of
decentralization and autonomy concept which should be viewed as an political
phenomenon and public administration as well.
New paradigm of decentralization is a challenging for
the State and Nation of Indonesia in terms of understanding that unity of the Nation is prerequsite. In
other words, although we adopt the decetralization policy, and most of the
authority have been given to local government, it does not mean that local
government has been “independent” and
separated from the national government, but a local government is a sub-system
of national government, that mean the local government is sub-ordinated by
national government, the local government is an integral part of the Unitary
State of the Republic of Indonesia.
The Government of the Unitary State of the Republic of
Indonesia, is not involved to the system for “Centralism” in governmental
power, but adopted the principle of
decentralization in terms of devolution
of power to local authorities, as stated at the constitution that the
Unitary State of the Republic of Indonesia is devided into provinces and the
province is devided into kabupaten (district) and cities or municipalities.
The Government
of the Republic of Indonesia gave some authorities to the provinces and
kabupaten (district) to regulate and manage their government for the benefit
and prosperity of the people in the region based on the laws created by the
central government. This is the broad discreation given to the regional and
local government by the central government. In the policy of Indonesia
decentralization, especially on the distribution of power between central and
local government is based on what so called “the principles of broad, real and accountable autonomy”.
The broad autonomy means the discreationary power
carried out by the local government covering a part of all the authorities of governmental affairs, except the political foreign policies; security and
defence; justice; national monetary and fiscal policy, and relegion, and
other discretions which will be stipulated by law or by the governmental regulations.
The real autonomy means that the implementation of the certain governmental affairs which
be real and exist, and it is needed for the benefit of the people, and grow and
develop at the region for the prosperous of the people.
The accountable autonomy means that the manisfestation or realization of accountability as the
consequencies of right and authorities given to local government in terms of functions and obligation carried
out by the local government.
Currently,
almost every nation state follows decentrlization
as a principle in discharging state
administration. Nevertheless it should be borne in mind that decentralization
is not a system that is standing alone, but it is a series of a unit of one
broader system, that is Nation State.
Therefore, there
are at least two reasons as follows: First,
a Nation State following decentralization principle would not mean an
alternative of centralization making decentralization
and centralization must be confronted and must have dichotomy in character,
but it is a sub system in the context of a state organization system; Second, even most of the discretionary
power have been given to the Region, there are some affairs or certain
functions still belong absolutely to the State, in terms of externality and accountability
of the nation. In other words, those affairs and functions did not be given to
the Region, but must be regulated and carried out centralized by central
government absolutely.
In our case,
there is a statement stipulated in the Law 22/1999 and updated Law 32/2004 as
well, that all the authorities and functions of government have become
authorities and functions of Region of Regency
and Municipality, except the policy
of foreign affairs; security and defense; justice; national monetary and fiscal
policy, religion, and other functions relating to the existence of the State
and Nation.
Indonesia, after having its independence proclaimed on
the 17th of August, 1945 directly created Unitary State of Republic
and adopted decentralization principles in
its State to show the World that Indonesia is more democratic state compared
with during colonial administration. Some Laws on decentralization policies have been created, e.g. Law No.1/1945;
Law No. 22/1948; Law No. 1/1957; Presidential Act No. 6/1959; Law No. 18/1965;
Law No. 5/1974; Law No. 22/1999, and the last one is updated Law No. 32/2004
and 33/2004.
Seeing the
decentralization policy contained in the old Law No 5/1974 on Principles of
Government in the Region issued during the administration of the New Order,
although it had run for almost 25 years, but the implementation of real and
accountable autonomy putting emphasis of regional autonomy at the Second Level
of Local Government, ran at choppy rhythm, slow, and in several things even a
setback or retreat.
The very basic
mistake in the Law No 5/1974, that the governmental regulation as a follow up
of the Law No. 5/1974 has been passed very late just finished after 18 years.
It was PP No. 45/1992 concerning distribution of power from central government
to the Regions, and not directly to the second level of local government, but
through the level of provinces.
It was also
stated that the distribution of power from provincial of local government to
the second level of local government should be finished within two years.
It was not only
impossible to finish within two years, but there was also awkward statement in
the regulation, that the governmental regulation No.45/1992 was not intended to
decrease the position of the provincial government as the first level of the
autonomous government. In other words the position of the provincial autonomous
government was remain unchanged
especially in terms of having discreationary power tansferred from the
central government comparing with the second level of local government.
In the meantime,
the pattern of giving autonomy followed by Law No 5/1974 was “graded proportional”, meaning that all
different administration levels, beginning from the Central, Provincial, and
Regency/Municipality had basically similar authority to do the same task,
function and affairs, but in different
proportion. In general, the sharing ratio of authority tended to expand
upwards, meaning that the Central would get a far greater proportion, followed
by level of Province, and then the Second Level of Government (Regency and Municipality) would get the smallest remaining portion.
It is therefore,
to realize the policy of decentralization that the autonomy should be
emphasized at the Second Level of Local Government (Regency and Municipality), if this pattern of giving autonomy like
this was continued, it would be very difficult to achieve. Since the existence
of First Level of Local Government (Provincial
government) being an Autonomous Region, which would remain to have greater
authority comparing to Second Level of Local Government (Regency and Municipality), so that however it may be the
distribution of authority to the autonomous region remain to be an “upside down pyramid” with all of the excesses of duplication and
confusion causing the position of Regency/Municipality being an autonomous
region closest to the people, to become powerless.
The decentralization
policy followed during the New Order Administration was more oriented to using
the model of discharging decentralization used to be called “The Structural Efficiency Model” rather than using “The Local Democratic Model”. The first model gives more importance
to providing services efficiently to local communities, to maintain stability,
integrity and unity of the nation. It is therefore, this model tended to
encourage greater intervention of the central to control the regional
government for assuring efficiency and economic progress, to prevent
disintegration, more emphasis to “uniformity
and conformity”, ignoring local values and regional diversity, which at the
end ignoring the democratic values.
While the second model gives more emphasais to democratic and locality values rather
than efficiency values. In addition,
local democracy model appreciates local
differences and system diversity, because local authority has both the capacity
and the legitimacy for local choice and local voice.[1]
Choosing “The
Structural Efficiensy Model” had
created tendency as follows: First, to
cut off the number of composition of autonomous region; Second, to sacrifice democracy by restricting the role and
participation of local people, representative council being a policy decision
institution and control institution; Third,
reluctance of the Central government to devolve authority and greater
discretion to the autonomous region;
Fourth, giving more importance to deconcentration principle rather than
decentralization; and Fifth, formation
of paradox, on one hand efficiency needs territory from a large autonomous
region to make resources provision possible to give more support for the
discharging of local administration, but on the other hand an autonomous region
with large territory would cause apprehension to have potensials to grow into a
separatist movement which would lead to disintegration.
Therefore, in the context of realizing
decentralization policy of forming and structuring autonomous region, an autonomous
region with large territory often became the prime target for liquidation or
broken into smaller entities under pretext of developing.
That way, it would be easily to understand that the “principle of real and accountable autonomy”
with emphasis of implementation put at the Second Level of Local Government
(Regency and Municipality) adapted
by Law No 5/1974 was more used for “rethoric
means” rather than for earnestly materializing the implementation of
regional autonomy operationally carried out in the field.
It is therefore, within the framework of Indonesian
reformation we changed the policy of decentralization and regional autonomy
stipulated in the Law No 5/1974 which is
too centralized in character, by the Law No 22/1999 which is more decentralized,
more democratic considering aspiration, initiative, and paticipation of the
people, social justice, local differences, potensial resources of hetereginous
area, system diversity etc.
2. DECENTRALIZATION POLICY AFTER THE NEW ORDER
ADMINISTRATION.
The
decentralization policy launched in the era of Indonesian reformation after
resigning of the New Order Administration, through the new paradigm (the birth of Law No.22/1999 on
decentralization and regional autonomy), nevertheless, has invited various
wide public opinion and views, especially in terms of both distribution of
authorities between central and local
government and financial proportion.
In the one hand,
there are some who considered that this new paradigm conceptually has gone too
far in providing discretionary power to the region, inviting apprehension to
cause disintegration, because of the compartementalization between one and the
other regions, disparities and uncontrolable from the central government ending
at region which feel very strong in terms of natural and human resources would
separate itself from the Unitary State of the Republic of Indonesia, and a not
potential Region will remain a weak. On the other hand, there are some who
consider that this law still contains a “status
quo” element, the government which named itself as “government of the
reformation order” is in fact does not bear reform character and halfheartedly in giving authority to the
region, especially in terms of financial proportion, sharing revenues and
fiscal decentralization.
Apart from
the various different
views, this new
paradigm
stipulated in
the Law No.22/1999 was borne and was approved by the parliament on May 7, 1999.
This law come into effect and has been given a transtitional period for no
later than two years as from the day of the stipulation. In the meantime,
instrument of the executory provisions being the follow up of this law should
be ready no later than one year as from the day of stipulation of this law.
The prolonged economic-political
crisis and crisis of confidence hitting the Indonesian nation, has brought
impact to almost of all aspect and structure of life. Although this awful
condition was a bitter experience to the Indonesia nation and people, but the
positive wisdom which was “a blessing in
disguised” was the emergence of ideas and basic thought has grown total
reform in all aspects of life in the state and nation affairs. The main focus
of this total reform was to materialize the creation of civil society in the
administrative, social and state affairs which have good governance
values which created democratic value
based on the local differences and potential diversity, transparency, equity,
honesty and justice attitude which has people interest oriented character and
accountability to the people.
The positive
impact of this total reforms is viewed from political and administrative
context, that there has been a shifting
of paradigm from centralistic government towards decentralized government
by giving opportunity to the region in the form of extensive and accountable
regional autonomy to self-regulate and manage the interest of local society in
accordance with their own initiative based on the aspiration of the society, in
accordance with the condition and potentials prevailing in their territory.
The birth of the
Law No. 22/1999 on Local Government and the Law No. 25/1999 on Financial
proportion between Central and Regional
Government was considered very important, since through implementing these
Laws, it is expected to bring about changes to the life of regional government
which would be able to materialize a
democratic administration in the effort of bringing closer relation between
the government and its people, which in turn would promote the services, empowerment
and prosperity of the people as a whole.
Regional
Autonomy as a materialization of implementation of decentralization principle
in discharging of administration is in fact an application of the academic
concept what we called “Division of Power”,
divided into two part, “Capital
Division of Power” (CDP) which constitute power of a state horizontally, and “Areal Division of Power” (ADP) which divides power of the state vertically.
In this system,
State power is divided into “Central
Government” in one hand, and “Sub System of Central Government) or
“Regional Government” or “Local Government”) on the other. The system of
division of power in the context of “Devolution”
of authority of regional autonomy, differs from one country to the other,
including Indonesia which constitutionally follows a Unitary State system.
In a Unitary
State system, although the authority of regional autonomy moving towards the
independency of the region, it does not mean that there would be a full and absolute freedom for a region
(“absolute onafhankelijkeheid”) in
discharging rights and functions of its autonomy in accordance with its own
will, but it must consider the interest of other regions and national interest
as well.
The difference of
interest between freedom of autonomy and defending the unity of the nation is
usually to be an area of “conflict of
interest” which is very difficult to be drawn out, since everyone sees the
matters from the different perspectives making regional autonomy pivoting upon
a view of different perspectives, apparently would develop into a lengthy “dilemma”.
Different
perspective review between the central
interest and the regional interest is sometime difficult to avoid, because
the domination of the central role is sometimes too strong causing pressure and
killing the regional initiatives, and further inviting pattern of central
instruction and tight control under pretext of nurture.
In addition, the
two different views between central and region, is often dominated by
subjective emotional power of authority rather than by more rational objective
thought. Example, the equal distribution of economic development viewed from
the national perspective was considered to be sufficiently equal distributed,
but from the regional perspective would see it differently, seeing that the
gain of the regional wealth resources drawn to the central is far from being
equitable from gain that the central would give back to the region. It is
because they got only several percent of the whole natural wealth, while most
of it was drawn to the central, for no further clearer purposes.
Likewise in the
political dimension, viewed from the central perspective, arrangement on
political posts in the region was considered to be sufficiently loose, but on
the contrary, the region would consider that the intervention of central to
the region and the development of
democracy is too far.
This different
of perspectives was getting sharper and moved to the regional jealousy, the
result was the coming up of regional demands or claims, which in turn when this
goes on in a prolonged situation, it would not be impossible moving to the national disintegration.
Again, this
difference of perspective must in fact not become a dichotomy which moves to
incoherent conflict of interest between central and region, if only the two
interest would be based on objective criteria, especially viewed from the
aspects of justice, diverse condition and regional potentials.
The core of the
problems is, how far the extent of the regional autonomy could be given to the
region, so that the Region would be able to function as an independent “Autonomous Region” based on the principle of democracy and people
sovereignty without disturbing the
national stability and totality of unity of the nation?
As a matter of
fact, the strong independency of the Autonomous Region, should rightly to be a
support for the existence of the state and nation to be remain intact and well
kept. In other words, how to find a balancing–point between the policy of “centrifugal”, would that give birth to
the decentralization policy, and
placing the “centripetal” position
that give birth to part of central power
to assure the national identity and integrity.
It is difficult
to establish a right formula to find out solution of the problem, since it
would be largely influenced by political configuration at a given time, and I
think it is almost certain that every country in finding a balancing-point
would always think of economic, political, social prosperity and security
considerations.
However, how
difficult to establish a formula is, people have to continue the effort in
finding the right, objective, and rational formula, even it should be
accompanied by full ability and wisdom,
by seeing that this matter is for the interest of the nations’s society, and
not for the interest of a small segment of society or certain group only.
Emphasis that
gives more consideration on “local
interest criteria” would give birth
to an administration of democratic
decentralistic character, which would be equalized by “national interest criteria”
which would remain to assure the national identity and unity, as well as
national interest as a whole which would give birth to limited center power so that a centralistic administration would be
limited.
Public view
being a sharp critic, has acknowledged that a
centralistic administration has been less popular, because of its inability
to understand rightly the local values or local aspiration. The reason is, the
members of the society would feel secured and peaceful with a local government
body closer to the people, both physically and psychologically (Bone Rust, 1968). In the meantime,
giving more discreationary power in the form of autonomy to the region, it was
acknowledged would not cause “disintegration”,
and would not lessen the degree of
authority of the national government, even on the contrary it would produced
respect of the region to the central government (Brian Smith, 1986). Therefore, there is a slogan of regional
autonomy that often launched: “As much
autonomy as possible, as much center power as necessary” (W.Buckelman, 1984),
should become a consideration in defining division of power between central
government and the region.
From this
general overview and critic, there is a thought coming up on the need of giving
autonomous authority to the region as broad as possible, and putting the focus
of regional autonomy at the level of areas closest to the people. It was based
on the thought that in implementing regional autonomy would not only provide a
meaning of maturation of local people politics where a participating role and
people empowerment are materialized, but also at the same time it would give a
meaning to giving people a prosperous life. Because, however strong is the
demand for equal distribution, demand for justice that often launched, both
involving economic and political area, would at the end become the main focus
in discharging regional autonomy.
This is in fact
the philosophy that gives ground and accompanies the birth of Law No 22/1999 on
Local Government at 7 May 1999 being the substitute of Law No 5/1974 which
formed a package with the birth of Law No 25/1999 on Central and Regional
Financial Proportion at 19 May 1999, which has been updated by Law No. 32/2004
and 33/2004.
3. BASIC
CONSIDERATIONS GIVING GROUND TO THE
FORMATION OF LAW NO 22/1999
At least there are five basic considerations giving ground to the
formation of Law No 22/1999: First, as
an effort of materializing a strong legal foundation for discharging of
regional autonomy by giving a large extent to the region to turn the Autonomous
Region into an independent one in the context of maintaining the administration
system of the Unitary State of the Republic of Indonesia based on 1945
Constitution; Second, the discharging
of a broad Autonomous Region carried out on the democratic, people participation,
equal distribution and justice principles, as well as by observing regional
potentials and diversity; Third, promoting
the role and function of the Regional Legislative Council, both as regional
legislative body, controlling body, and as a means and vehicle for developing
democracy; Fourth, for anticipating
the development of the situation, both domestic and challenge of the global
competition which influence will hit the region; Fifth, to reposition the Desa
(Rural villages) or with other name as the lowest legal entity which has
the right of origin and original autonomy acknowledged and honored in the
administration system of the Unitary State of the Republic of Indonesia. It is
therefore, Law No 5/1979 regulating rural administration uniformly throughout
Indonesia, as villages in Java, in the same time by Law No 22/1999 was declared abrogated, and
regulation on Desa and its right and origin is left to the
region which will be regulated by the regional regulations concerned.
4. SHIFTING OF
NEW PARADIGM FROM THE LAW NO 5/1974 TO
THE LAW NO
22/1999.
The old paradigm
in the Law No 5/1974 using “The Strucural
Efficiency Model” is no longer
followed in the Law No 22/1999, and it tends to use “The Local Democratic Model” with “Split Model” format putting
autonomy at the level of Regency and Municipality.
According to the
Law No 22/1999 the regional autonomy is laid down at the level of Regency and
Municipality, and is not concurrently functioning as Administrative Territory. The type of its administration remains
following “a single (headed)
administration” (“Eenhoofdig Bestuur”) and not “a collegial administration” (“Collegial Bestuur”) just like
Indonesia ever had in the Law No. 22/1948 and the Law No 1/1957. The Head of
Region according to the new Law has the position of merely as an “instrument of the region” “ and not concurrently as an “instrument of the center”, and also not
as an extent or long hand of central government.
The Head of Region is elected directly by the Regional
Legislative Council (DPRD) without
the intervention of the central, The candidate who gain a majority vote is
nominated as Head of Region by DPRD and legalized by the President. The
legalization of the President is bound to the outcome of the election by the
DPRD. The prerogative of the President, I would say in this context, is no
longer followed.
Likewise, the Law No. 22/1999 categorically explains
that the Head of Region is responsible to the DPRD. This is the consequence of
clearly separating the position between the DPRD as a regional legislative body
and Head of Region as a regional executive institution, so that there will be
no duplication and confusion between the executive task and the legislative
task. The Head of Region conducts the task in the Executive area, and the DPRD
in the legislative area; the DPRD is empowered as such so that it will be truly
able to exercise the legislative and control function, as well as truly plays
its role in channeling the people’s aspiration in the context of developing
local democracy.
There is another reason why is the Head of Region
responsible to the DPRD, not to the Governor or to the President? Because, Firstly, Head of Region is selected, elected and nominated by the
DPRD, it is therefore, he must be responsible automatically to the DPRD; Secondly, the Status of
Regency/Municipality is merely local apparatus,
to carry out of the autonomous government is merely based on
decentralization principle. There is one thing important to inform, that both
position of DPRD and Head of Region as well are the same position as a
partnership institution in carrying out of local government. It is imperative in the Law of No 22/1999,
that the two institutions should cooperate tightly for the benefits of the
people. There is no subordinate position between Legislative council and Head
of Region and two institution can not impeach to each other, in other words
they have to be able to maintain the equilibrium check and balances in order to
have an stability and solely for the beneficial and prosperity of the people.
The empowerment of the DPRD through assignment of many
tasks, the authority of the Legislative council (DPRD) is sufficiently large.
The unique one in Law No. 22/1999 is the provision of what so called “subpoena rights” of the DPRD as a
consequence of giving “right of
investigation”, namely that DPRD in carrying out its task has a specific
right to ask some people, such as state official, government official or member
of the society to provide information on metter that requires to be dealt with
for the sake of the interest on the state, the nation, the governance and
development. In that Law, it is categorically expressed that for those who
refuse and not fulfilling the request, it is sanctioned by punishment for no longer
than one year in jail.[2]
This is meant to avoid “contempt of
parliament”. Namely prevention for humiliating the dignity and honour of the Legislative council”.
Relating to the “Accountability”, the Head of Region is
liable to submit accounting to the Legislative council at “every end of budget year”, and or “for certain matter” upon
request of the Legislative council.[3]
The accountability turn down by the Legislative council, can be corrected for
no longer than 30 (thirty) days time. Refusal of the accountability by the
Legislative council for the second time, it would make possible for a Head of
Region to be sent for a process of a kind of “impeachment”, namely dismissing the Head of Region before the
termination of his office. According to the Law, when the accountability report
is declined for the second time by
the Legislative council, the Council can propose to the President for his
dismissal.
There are 7
(seven) categories of the possibility for a Head of Region that his dismissal
could go for processing before terminating his post, they are:
(1)
his
accountability is declined by the Legislative Council;
(2)
not fulfilling
the requirements as Head of Region;
(3)
breaking the
oath/promis of Head of Region;
(4)
offending
restrictions for Head of Region;
(5)
developing crisis
of wide public in trust and confidence;
(6)
conducting
criminal acts sanctioned by 5 (five) or more years in jail;
(7)
when charge for
doing attack against the Government and proved to do acts harmful to the
Unitary State of the Republic of Indonesia.
The first five
categories is exercised by involving the Regional Legislative Council (DPRD),
meaning if the “impeachment” will be imposed to the Head of Region, his
dismissal would not automatically be effective, but it has to go through a
process of DPRD Session, at least 2/3 (two third) of the number of the members
of the DPRD attending the Session should agree for making a proposal of his
dismissal to the President of the Republic of Indonesia.
As explained in
Article 46 Paragraph (3), that for the Head of Region whose accountability is
declined for the second time, the DPRD can propose his dismissal to the
President. That way, there will be a “check
and balance” between selection,
election, appointment, approval (legalization) and dismissal of Head of Region.
The process of
dismissal for the last 2 catagories, does not require involvement of the DPRD,
but it is directly exercised by the President, namely: First, for the Head of Region suspected to undertake assault
against the government and/or other action which would disintegrate the Unitary
State of the Republic of Indonesia, shall be temporarily dismissed from his
position by the President without going through the decision of the DPRD; Second, for the Head of Region who is
proved to undertake assault against the government and act that may
disintegrate the Unitary State of the Republic of Indonesia declared through a
finding of the law court that gained final judgement, is dismissed from his
position by the President, without going through the approval of the DPRD.
Reason for
dismissal of Head of Region is explained in Article 49 of Law No. 22/1999,
namely: First, upon death; Second, requesting dismissal at own
will; Third, end of term of office,
and new official has been installed; Fourth,
no longer meeting the requirements as meant by Article 33 (on the
requirements to be Head of Region); Fifth,
offending the oath/pledge of Head of Region; Sixth, offending the restrictions of Head of Region; and
Seventh, developing crisis wide public in confidence, resulting from a case
(cases) involving the responsibility of Head of Region, and his information on
that case is declined by the DPRD.
Basically, the
authority to dismiss a Head of Region lies with the DPRD when reasons for dismissal is definite,
but when the matter still requires consideration it must go through a process
through the attendance of 2/3 of the number of the DPRD and approval of 2/3 of
the members attending the session. While things relating to the accounting
declined by the DPRD for second time, the dismissal remains requiring a process
through the proposal of the DPRD to the President. This is one of the styles of
local democracy followed by Law No 22/1999.
According to the
updated Law, namely Law No 32/2004, Head of the Region is elected directly by
the people, and resposible to the President not to the Legislative Council any
longer, but Head of the Region has an obligation to provide “Information of accountability report”
to be submitted to Regional Legislative Council (DPRD) at every end of budget year.
5. THE POSITION OF PROVINCIAL REGION AS AN AUTONOMOUS
AND ADMINISTRATIVE REGION.
According to Law
No 22/1999, the position of Provincial Region is both as an Autonomous Region and Administrative
Territory as well. Consequently, the Governor has dual position, namely as
Head of Region in the capacity of Autonomous Regional Government, and in the
same time as a Representative of Central
Government. The electing and appointing process to be a Head of Region is
similar to the one to be a Head of Regency Region and a Mayor of Municipality.
The difference is only in the process of candidacy. Governor candidate
nominated by the DPRD, prior to the election, it should first be brought to the
President for consultation, the electing and appointing process is similar to
the one for Head of Regency Region and Mayor of Municipality, namely through
majority vote stipulated through the decision of the DPRD, and approved by the
President.
Putting the
Governor as Representative of Central Government is based on the following
consideration: Firstly, to maintain
harmonious inter regional relations, and between the Central and the Region in
the context of the Unitary State of the Republic of Indonesia; Secondly, to run Regional Autonomy
across Regency Region and Municipality, as well as carrying out authority of
Regional Autonomy which can not yet be implemented by Regency and Municipality
concerned; Thirdly, to carry out tasks of certain governance
devolved, especially in the context of
carrying out deconcentration principles.
According to Law
No. 22/1999 most of the authority and functions were transferred to the
Regency and Municipality, but not to
Provincial Government, because the authority
of the Provincial Government has only limited autonomy, as the status of the
Provincial Government, as I above mentioned, has a dual position, as Regional
Autonomous Government and Provincial Administrative Territory as well. This is
what we called academically “Fused model”
. Consequently, the position of the Governor is dualism in function, e.g.
as a Head of Regional/Provincial Government discharging authority and functions
in accordance with the policy of decentralization and regional autonomy, and as
a representative of the central government discharging the authority and
functions within the framework of
deconcentration principle.
Within the
framework of Law No. 32/2004 is different from the Law No. 22/1999, the
authority and functions of Provincial Government and Regency/Municipality were
the same position in terms of having discreations as autonomous governments.
It’s therefore according to our experiences, there have been often duplicated
and overlapped in carrying out the authority and function, and consequently
there will be conflict of interest between the provincial government and the
regency/municipality.
It is therefore,
the role and position of the Governor should be more concentrated to carry out regional scale or inter
Regency/Municipality, and supervision and facilitating for local government on
behalf of central government.
Monitoring,
supervising and facilitating directly conducted by central government is too
far, and in terms of span of control is too wide for central government to
control Regency/Municipality directly.
The position of
the Governor, therefore, is very important, he has dual role, from the
perspective of central government the Governor is an interpreter of central
government policy, he must be able to interprete the central policy which must
be implemented in the region in accordance with the situation and condition of
the regions, and from the regional perspective, the Governor must be able to
support and encourage empowerment people and autonomous local government by
providing support, direct, facilitate and other things to succeeding regional
and local autonomy. It means, that the success or failure of the
decentralization and regional/local autonomous implementation, more or less the
Governor is should be responsible.
Unfortunately
the position of the Governor as a representative of central government was
limited to three things as stipulated in the Law No 32/2004 as follows:[4]
(1)
Supervising and
facilitating local government (Regency/Municipality);
(2)
Coordinating of
governmental affairs in Provincial Government and Regency/Municipality as well;
(3)
Coordinating of
supervising and facilitating for implementation of co-administration in
Provincial Government, and Regency/Municipality.
The other
functions which is not stated here should be delegated by the President to the
Governor according to principle of deconcentration policy. Therefore, the
position of the Governor is often called “delegated
position” not “attributed position”,
means that the activities of the Governor as representative of central
government depends on the delegation of authority from the central government
within the principle of deconcentration
policy.
In order to be
more effective, the role and the position of the
Governor should
have an authority what so called “Nach
Freies Ermessen”, it is a
discretionary power for the Governor to make any decision automatically (“Ex-officio”) on behalf of the central
government as far as the activities concern regional scale, and those
activities merely for the beneficial of the people in the region and/or for
running well of administration, otherwise all of the problems accumulated in
the region would be a burden of central government.
It is important to note, that all
matters of regional problems as a matter of fact, just should leave to the
Governor to be accomplished, and dignitaries of central government should more
look at the world, how to bring and promote Indonesia to the world, how to
increase the Indonesia in global competition.
But practically
it depends on the behaviour and value judgement of the dignitaries of central
government, it also depend on the elite of central bureaucracy, which remain in
some cases defend the “statusquo”, and
not willing to transfer of authority to the region. Even a small things belongs to local or domestic affairs,
sometimes is carried out directly by
central bureaucracy of government.
There is a
system adopted by updated of Law No
32/2004,
namely“Concurrent System” within the framework of distribution of
authority between central and regional government as a pattern in order to be
able to avoid conflict of interest between central and local government, and to
prevent for accusing of each other.
6. BASIC ELEMENT FOR REALIZING REGIONAL AUTONOMY
FOR BETTER
LOCAL GOVERNMENT.
In order to be
able for local government to implement
its autonomy,
after having observation for a long time, academically, normatively as well as
empirically, I have some points would
like to bring forward to this conference as follows:
First of all, I’d like to say that it is time
and very urgent to
change a format
or pattern of autonomous government
drastically,
even it would influence or impact to
the changing
of the
constitution (UUD-1945). Otherwise there will be no
change,
everything remain unchanged. The changing of
UU
22/1999 and UU
32/2004 there were just incremental not
fundamental.
Secondly, there is
somesort of new paradigm in government, that the most of the people especially
at the grass root level will be more convenience and saver fisically and
psychologically, if the government is closer to the people (W.Bonne Rust, 1986).
My perception
the local government which is closed to the people is the
Kabupaten/Municipality, but not Province. It’s therefore, in my mind the government, in terms of decentralalization system should be
emphasized, not to emphasize actually but to be “laid down” at the
Kabupaten/Kota and on the basis of a-symentric decentralization. (UU 22/1999 is
different from UU 5/74 about emphasizing of local government, UU 5/74 more
emphasized local government at the DT II, where as UU 22/1999 using the term
“meletakkan” (laid down) at the Kabupaten/Kota level).
Thirdly, how is
the position of the Provincial Government should be? Some people say, that the
local government should be laid down at the Provincial level, not at the
Kabupaten/Kota level. The reasons acoording to them, the Central
Government will be easily to supervise,
in terms of span of control towards 34 Provinces rather than supervise directly
towards approximately 591
Kabupaten/Kota, and then he said sooner or later Indonesia will be going to be
a Federal State likely or dislikely, just now like Papua and Aceh normatively those the special autonomous
provinces are sub-system of National
Government (NKRI), but factually is just like “Negara Bagian” (State) in a
Federal system.
My opinion is
slightly different from those opinion. Formerly, the system of regional administration
in Indonesia is characterized by two different approaches, namely,
deconcentration and decentralization.
The former is
the administration of region and the carrying out of governmental functions by
agent of the central government. The
latter is the devolution of certain governmental functions and decision making
power to local authorities which incorporate locally elected assemblies.
These two
pattern coexist, with a network of deconcentrated administration running in parallel with a network of local
authorities. Coordination between the two systems is maintained through the head of each region
who has a dual functions as both the head of the decentralized local authority
and the representative of central government
within that region (Nick Devas,
1989). This system was regulated by Law No.5 of 1974.
If we are going
to change the pattern of local/regional government, in my mind it is important
to be considered, that Provincial region should not be characterized by the
approach of decentralization but more “deconcentration” as a system of regional
administration. headed by a Governor
through “deconcentration” principle.
It’s therefore,
the Governor is not elected and political position but appointed by the
President from the professional leader
or manager. Consequently, the Governor is a representative of the President in
the Region. Consequently, Governor is responsible to the President as a long
hand of the President.
The
Governor is fully qualified, skilled, experienced
and mastered in management of government.
All of government apparatus at the region
would be directed operationally and tactically by the governor, consequently
they are subordinated to the Governor, including the Police, but if it is necessary administratively remain
subordinated to the central government.
The Governor
should have full authority to make any decision or any solving problem at the
region. As long as all the matters are concern of the region let the governor
is accountable. It is not necessary to have intervere from the center. The
Central government is not too much intervere
on domestic matters, but more emphasize to the global activities
in order to increase Indonesia
quality or ranking in the global competition.
The Governor
should have authority to carry out what so called “Tutelage power” within the framework of carrying out of Integrated
Perfectoral System which including supervising, directing and coordinating
all matters happened in the region. If any agency or institution does not have any competence to handle a certain problems, it is the
obligation for the governor to take over
and cope with the problems.
Besides this
function the governor has also the typical role what so called in the Dutch
terms ”politiek en politionil beleid” meaning
that governor has a role, authority and function to make a policy decision
concerning of setting up the degree of
security in the region for safety and prosperity of the people..
The dual
position of the Governor regulated by
Law No.32 of 2004, namely the role or position of Governor as a Head of Provincial Autonomous Government in one side and in the same time as an apparatus of central government or
representative of central government, it is very difficult to be applied.
Theorytically this dual position will be all right, but practically it is very
hard to be implemented, as there are two kind
of conflicting interest in the same time should be
carried out by the Governor.
Therefore, in
this format I suggested the Governor has a single position fully as a
representative of the President in the region, and we have also just one autonomous
government, that is
Kabupten/Municipality on the basis of a-symetric decentralization.
Although, it
would be possible to change or amend the constitution based on the article 37
but not the preambule. It is also clearly specified on the article 37, sub
article (5), that the form and status of
Unitary State (NKRI) it’s could not be possible to be changed.
If the
Provincial Government is created as an
Autonomous Government having authorities as broad as possible,
characterized by the approach of decentralization principle, it is worried
about involving in disintegration. or separatism just like Papua and Aceh.
As a matter of
fact, if the Local Government has been laid down at the Kabupaten/Kota there is
no need to worry just because having
broader authority to regulate and manage the local government, as
Kabupaten/Kota relatively is small, so it won’t be possible to be involved in
disintegration or separatism. It
hopefully the status of Unitary State (NKRI) remain would be maintained and
saved. In the mean time, in terms of direct public service the
Regency/Municipality/City would have more opportunity to create and develope a
high standard of public service.
It is also no need to have the people
representative (DPRD) at the Provincial level, because the people
representative has been represented by the DPRD Kabupaten/Kota at the grass root level. If it is necessary,
in terms of democratic principle, the
Local Government of Kabupaten/Kota
could appoint or elect 2 or 3
people from each Kabupaten/Kota to
represent the Local Government concerned, not represent the people, but to maintain or propose any
kind of beneficial to Local Government
concerned.
Fourthly, it’s often conflicting between the law of
local government and the law of sectoral ministeries. This situation would influence or impact to the policy implementation at the local government of Kabupaten/Kota. The role and function for coordination from Sekretariat Negara and Menkumham did’t
work effectively how to coordinate and sinergize all the laws before and after
passing by the DPR.
It is also
important to note, that the position of
Local Government Law should be
posted as “a corner stone” for Laws of Sectoral Ministeries in order to be
sincronized and sinergised by the
governor as a representative of central government, and also by Local
Government Kabupaten/Kota as well.
Fifth, .there are
some more problems facing by Local Government but one thing to be
considered to be discussed is the initiative or innovative of local government
apparatus wich is some times difficult
to be carried out. If there are some
laws or higher regulations contradictory
with the interest or beneficial to the people, what could the local
government apparatus do? Is it possible to against the law or higher regulation
solely for the beneficial to the people?
Remember Law No.5 of 1974 ever
stated that the Kepala Wilayah (Bupati/Walikota) could do everything if it’s
for effectiveness of government machinery or for the beneficial to the
people.
Academically,
this is the “discretionary power of Kepala Wilayah to take any action which is
in the Duch term what so called “Vrijbestuur”
or “Nach Freies Ermessen” with the
conditions or requirements as follows:
·
there is no
losses for the state finance or state economy;
·
that action is
not for the personal, family, friends or group interest; but solely for common
good;
·
that action has
not disturbed public interest;
·
the machinery of government worked well and was not stagnant.
After some
times, I’ve ever raised this case at the
meeting of revision team for Law No.32
of 2004, but some of our colleague rather objected to this ideas, because of
having too broad discreation like that
which would be worrying misused or abused by the local government apparatus.
In my mind it is not necessary to be worried about, as
long as there are some requirements or
conditions above mentioned.
It is very important according to my
opinion for the local government apparatus to have “discreationary power”
called “Vrijbestuur” or “Nach Freies Ermessen”, otherwise there won’t be innovative, initiative and creativity. If
they do not have any innovative, inititive
and creativity, there will be no changes, if you do not change you’ll die meaning hopeless.
7. CONCLUSION
Before I
conclude of my paper, one thing I would like to say which is to be proud that
Indonesia when during New Order Administration accused by International
Community as an authoritarian government, a hard-hearted military system, and
evading and neglecting the Human Rights happened in various area such as in
Papua, in Aceh, and even in East Timor, now within the Era of Reformation
Order, we are coming up with democratic society, more decentralized governance
with active participation of the people, appreciate local democracy, local
differences, and system diversity towards to realize the Good Governance,
especially in terms of better local government, and at the end in all of these
merely for the beneficial, prosperous, and social justice of the people. Jakarta,
2nd of September 2013.
BIBLIOGRAPHY
Amal, Ichlasul, Regional and
Central Government in Indonesian
Politics, West Sumatra and South Sulawesi, 1949-1979, Yogyakarta,
Gadjah Mada University Press, 1992.
Anderson, Benedict and Audrey Kahin,
Interpreting Indonesia Politic:
Thirteen Contribution to the Debate, Ithaca, NY, Cornell University Press,
1982.
Badan Litbang, Prospek Otonomi
Daerah, Jakarta: Badan Litbang, Depdagri, 1991).
Booth, Anne, Effort to
Decentralise Fiscal Policy: Problem of Taxable Capacity, The Effort and Revenue
Sharing, in Collin Mac Andrews, Central
Government and Local Development in Indonesia, NY: Oxfor University Press,
1986.
Bryant C, and White, Local
Government Managing in the Third World, Boulder, Co: Westview Press, 1982.
Cheema, Shabbir, G, and Dennis A. Rondinelli, Decentralization and Development: Policy Implementation in Developing
Countries, Beverly Hills, CA;Sage Publications, 1983.
Devas, Nick, Financing Local Government
in Indonesia, Athens, Ohio: Center for
International Studies, Ohio University , 1989.
Hoessein, Benyamin, Beberapa
Faktor Yang Mempengaruhi Besarnya Otonomi Daerah Tingkat II, Suatu Kajian
Desentralisasi dan Otonomi Daerah dari segi Ilmu Administrasi Negara, Disertasi
untuk memperoleh gelar Doktor dalam Ilmu Administrasi Negara pada Universitas
Indonesia, Jakarta; Universitas Indonesia, 1993.
Kertapradja,
Koswara, E., PPW sebagai Suatu sistem dan
methodology dalam Pendekatan Pembangunan Daerah, Ditjen Bangda, Depdagri,
1991.
------------, Kebijaksanaan Pembangunan dan Pelaksanaan
Otonomi Daerah,, Yogyakarta, Universitas Gadjah Mada, 1992.
------------, Integrted Provincial Development Program:
Experience and Reactions, in PDF, Experience
and Indonesia Rural Development Strategy, National Conference on Area
Development Program, Cooperative Effort between DG of Regional Development,
Ministry of Interior, Reserch Center for Rural and Regional Development,
P3Pk-UGM, United States Agency for International Development, Yogyakarta:
P3PK-UGM, 1988.
------------- Pemerintahan Daerah, Konfigurasi Politik
Desentralisasi dan Otonomi Daerah, Dulu, Kini dan Tantangan Globalisasi, Inner & Universitas Satyagama Press, 2010.
Legge, John D., Central Authority and Regional Autonomy in
Indonesia, A Study in Local Administation 1950 – 1960, Ithaca, NY: Cornell
University Press, 1961.
Maddick, H.,, Democracy, Decentralization and Development,
Bombay, India: Asia Publishing House, 1963.
Maryanov, Gerald S., Decentralization in Indonesia as a political problem, Ithaca, NY,
Cornell University Press, 1958.
Mawhood, Philip
(ed), Local Government in the Third
World, Chicester, UK: John Wiley & Sons, 1983.
Mac Andrews,
Collin, Central Government and Local
Development in Indonesia, NY; Oxfor University Press, 1986.
Moeljarto, T., Politik Pembangunan, Sebuah Analisa Konsep,
Arah dan Strategi, Yogyakarta, Tiara Wacana, 1987.
Muslimin, Amrah,
Aspek-aspek Hukum Otonomi Daerah, Bandung,
Alumni, 1986.
Obsborne, Davis,
and Ted Gaebler, Reinventing Government,:
How The Entrepereunial Spirit is Transforming the Public Sector, Mass:
Addison-Wesley Publishing Co.,Inc., 1992.
United Nations,
Technical Assistance Programme, Decentralization
for National and Local Development, New York: Department of Economic and
Social Affairs, Division for Public Administration, 1962.
------------, A Handbook of Public Administration, Current
Concepts and Practice with Special Reference to Developing Countries, New
York: Unitged Nations, 1961.
UUD-RI 1945 (1945 Constitution);
Undang Undang
Dasar 1945;
Undang-Undang
No. 5 Tahun 1974;
Undang-Undang
No. 22 Tahun 1999;
Undang-Undang
No. 32 Tahun 2004;
Undang-Undang
No. 33 Tahun 2004.
[1]
Paper
prepared for “The 4th International Conference on Local Government” sponsored
and organized by University of UNTAG Surabaya, Indonesia, in cooperating with Khon Kaen University of
Thailand, on September 20 – 22, 2013 in
Surabaya Metropolitan, Indonesia.
[2]
The
Writer is Senior Lecturer at the Institute
of Governmental Studies, the Ministry of Home Affairs; Senior Lecturer
and Senate of Teaching Staff at the Faculty of Social and Political Sciences,
Pancasakti University, Tegal, Centre Java; Visiting Professor for some
Universities and Higher Education Institutes in Indonesia; Chairman & CEO
of Centre, Indonesia Regional Government Empowerment for Sustainable
Development (CIRGE4SD).
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