Decentralisation in Indonesia Means Bylaws Tend to Stick
Indonesian police and military are taking down hundreds of Aceh’s controversial GAM flags because the central government insists that the flag violates national law and the international Helsinki treaty.
However, the bylaw that gives the autonomous region the authority to use its own symbols and insignia, is apparently in line with the constitution according to Constitutional Court chief Akil Moktar.
The problem for Jakarta is that once enacted bylaws are notoriously difficult to get rid of, and even though national laws are supposed to trump local ones, the complex powers devolved to regions and districts means that oftentimes bylaws are there to stay.
BJ Habibie breathed life into decentralisation in 1999, giving power to 470 districts and cities to elect their local leaders and also for those leaders to institute local bylaws.
It was such decentralisation, and the competitiveness of ensuing national, regional, and local elections that helped institutionalise democracy in Indonesia.
Yet the same tools which initially propelled a once authoritarian state into rapid democratic incline, now present a paradox whereby grassroots interests can seemingly supersede the legal hierarchy of law with Aceh’s provincial government’s decision to adopt the banner of former rebel Free Aceh Movement (GAM) .
There are now 597 regencies and municipalities and lawmaking powers have been devolved to around 1000 local legislatures and executive officials that can issue bylaws and which are often in direct contravention of national laws and the constitution.
This is because most national laws must administer at the national level and have little jurisdiction in local/regional domains, likewise bylaws, such as religious bylaws, cleverly evade statute contravention when they peg their authority to customary law and local reach.
Bylaws, which reflect the interests of local administrations within particular regions, can inhibit democratisation, frustrate civil and political justice and suppress economic and social rights to say nothing of Jakarta’s ire over its so far futile attempts to override Aceh’s bylaw.
Bylaws have given local authorities legislative power to discriminate against certain members of society, such as homosexuals, religious minorities, and women, and to abstain from supporting a secular pluralist agenda in progressive national legislation by prioritising conservative social interests.
Bylaws are also deployed to raise money outside permissible levels, through taxes and levies that exceed the 2009 Regional Tax and Levies Law.
In addition to extractive taxes and levies, 79 Shariah based (Perda Syariah) bylaws were introduced in 52 districts and 160 in 33 provinces since 1999.
Not everyone is happy with them.
In East Lombok in 2005, civil servants protested a Shariah bylaw that directed a monthly alms-payment deducted from their wages. Most Shariah based regulations cover dress codes, alms payments, bans on alcohol, prostitution, and gambling, inordinately fixating on women.
Across several regions homosexuality is banned under local by-laws even though it is not formally criminalised in Indonesia. This sort of imposition on the private lives and autonomy of citizens is seen by many Indonesians as fairly un-bothersome if the polls are correct and 80% of Indonesians really do regard homosexuality in terms of deep amorality.
Instead of these laws being successfully challenged and overcome by critics such as those in strengthening civil society organisations armed with the instruments of human rights discourses, national law and constitutional provisions, political obstacles and the complex legal code prevents many bylaws from review or annulment.
There is no institution in Indonesia that can override bylaws conflicting with the Constitution, including the Constitutional Court, which can only to assess their compatibility with statutes of the Constitution.
Bylaws are subject to executive and judicial review at the appropriate level under strict limitations such as a 180 day window and a requirement that bylaws must contravene a superior statute.
It virtually takes a presidential decree to override them and even then that decree isn’t safe.
Last month in the Supreme Court Islamic hardliners FPI (Front Pembela Indonesia) used uncharacteristically civil means to win a judicial review of a presidential decree that prevents local administrations from banning the sale of alcohol.
Before the presidential decree, 22 districts had local bylaws that prevented the sale and consumption of alcohol.
And last year Home Affairs Minister Gamawan Fauzi declared that 824 bylaws should be amended or annulled due to flaws or conflict with international laws, but a year on, regional powers retain their problematic religious bylaws because of the difficulty in getting rid of them.
The Supreme Court decision illustrates the capacity of decentralised powers as well as elites to go against the grain of democratisation, but also that bylaws are protected by political evasion and in many cases, higher statutes that guarantee bylaws with the right wording are not subject to executive or judicial reversal.
Most of the 824 flawed bylaws however, concern levies, a reminder that transparency and accountability is not contingent upon democratic transformation and decentralisation alone, and that in the process of institutional reform, undemocratic practices are occasioned within new decision making powers.
It’s not only the complexity of legal codes that give such fortitude to bylaws, Simon Butt, Senior Law Lecturer from the University of Sydney said local laws can contradict national ones, and the Supreme Court, who has the jurisdiction to decide whether local laws contravene national ones, usually doesn’t because of the flawed judicial review system.
“Bureaucratic and judicial review are flawed and are used largely to review and invalidate local laws imposing illegal taxation or user charges. Laws egregious for other reasons are likely to escape review altogether, or to be upheld by the Supreme Court without satisfactory explanation” Butt wrote in a 2010 AusAID funded article.
He also remarks, “The combined legal output of these lawmakers has added great bulk, complexity and uncertainty to Indonesia’s legal system. Many new local laws have been criticised for being misdirected or unclear, violating citizens’ rights, imposing excessive taxes, even breaching Indonesia’s international obligations”
Despite democratising forces increasingly winning space for reforms in society and politics, there are also anti-democratic forces that hold sway throughout Indonesia, demonstrating a regressive side to democracy within circles of government elites, as well as in local and regional powers.
Government officials and elites from across the political spectrum have contributed to democratic stagnation through poorly managed elections, corruption, unedifying legislative reforms, discriminatory by-laws, and by perpetuating a lack of protections for minority rights.
There are many who support ongoing reform of the political economic system, for example just recently several parties stipulated that they would request changes to the way presidential candidates are nominated in parties to give more candidates a chance to get through.
Yet these progressive reformers’ objectives are swamped by a general feeling of poor governance.
A recent poll showed grievous trust issues between the public and administrative institutions, and a commonly held belief that not only is corruption worse but that the current government has not been able to improve the situation.
Important aspects of democracy in Indonesia are stagnating; the passage of the Bill on Mass Organisations, the proposed reforms to the sometimes bizarre criminal code, the resistance of elites to democratic reforms, and the support for discriminatory by-laws in local legislation all undermine democratisation rather than cement it.
Civil society and a mostly free media have been key to repelling attempts at regressive reforms, yet the autonomy of local legislature has given local officials the power to impose restrictions that reflect mainstream society’s, indeed, often the more conservative elements of mainstream society’s moral disposition.
The legal code means that these bylaws are incredibly resilient and it’s not just a matter of challenging them using the logic of higher national and international law. Lesser religiously based bylaws are fully able to trump higher secular or human rights provisions even though it is assumed they violate Indonesian Law.
Freedom house civil liberties index shows that Indonesia’s democratic score has remained around the same levels since 2006 with a slight decline between 2006 and 2010. After such swift democratic transformation, Indonesia is now in a period of soul searching, reconciling the democratic character of the country with the varied aspirations of competing forces and influence.
Decentralisation stands now as a paradox of democracy, whereby it has both consolidated democratic institutions and resisted progressive elements.