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Rule of Law and Decentralization in Post-Soeharto Indonesia
Organizer and Chair: Jamie Davidson, National University of Singapore
Discussant: Jan Michiel Otto, Leiden University
In post-Soeharto Indonesia, it is commonly understood some aspects of its formal democratization--for example, holding free and fair elections, enacting decentralization and amending the constitution--has progressed further than other elements. One stubborn obstacle has been the establishment of the rule of law (negara hukum), an ideal yet critical element in the consolidation of a meaningful democracy. This panel will attempt to investigate the implications of this gap, but it does so at regional and local levels, sites where decentralization legislation has devolved substantial powers and where legal observers continue to ignore. In other words, this panel will focus on the influence of the new decentralized state structures on the rule of law at regional and local levels, study how ‘guardian institutions’ control of the lawfulness of the acts of the newly empowered legislatures and executives, and explore how the new system influences ‘realistic legal certainty’ of the local citizenry. One paper brings these processes to bear on natural resource management at the village level (in Lampung), and another does so similarly (land law) but in an urban milieu (in Bandung). A third paper demonstrates how little impact decentralization has had on local state-private developer relations which continue to revolve around the permit system as practiced under the New Order; and the fourth paper explains the recent rash of regional legislative, corruption trials as the outcome of local civil society mobilization in the name of accountability and transparency.
Decentralization and Public-Private Partnerships in Urban Development in Indonesia
Tristam Moeliono, Parahyangan Catholic University
This paper focuses on the legal constructs the Indonesian government utilizes to enable private enterprises (foreign and domestic) to exploit land or space in light of meeting the urban population’s rising demand for two basic needs (or some may say human rights): decent housing and a clean and healthy environment. The government’s general rationale for the extensive use of what it calls the Public-Private Partnership (PPR) mechanism has been that it suffers from budgetary constraints and that the private sector possesses the technical expertise and resources to secure financing. This unfolds in the critical case of urban infrastructure and development, where in exchange for a building license, the private company promises to build “public” infrastructure like roads and sewer systems that the local government cannot (or does not want to). Meanwhile, the legal authority of the government to control and supervise its private partners’ performance by utilizing (or manipulating) the permit or licensing system has grown substantially under the program of decentralization (enacted in early 2001) that has significantly empowered now autonomous local governments. Given that the “rule of law” balance has tipped in the local governments’ favor, the future success (or failure) urban development in Indonesia which is dependent on the private sector is whether their private sector partners can be convinced they enjoy secure rights as derived from government licenses and permits in order to continue to invest at levels adequate to support Indonesia’s inevitability, that is, booming urbanization.
Captured Competencies, Captured Resources: Regional Autonomy and Spatial Planning in Post-New Order Bandung
Gustaaf Reerink, Leiden University
Decentralization in post-New Order Indonesia can be seen as a process that has sought to contribute to the substantive formation of the rule of law at local levels. Neo-institutionalists, on the one hand, claim that, if properly implemented, the extensive devolving of political, administrative, and fiscal competencies to regencies and cities enhances democracy and public participation. Skeptics, on the other hand, argue policy-making is not a process of technocratic, rational decision making, but a contingent outcome of embedded and competing interests. In this way, decentralization failures arise not from faulty implementation, but from ‘capture’ by regional elites, who pursue their economic and political interests at the cost of the general good. My research in Bandung (West Java) provides evidence that both sides are right, that weaknesses in the implementation of regional autonomy, along with corruption, thuggery (premanism), and a lack of ‘democratic trust’ has led to legalized land grabbing by coteries of administrators, criminals and private investors. The paper then inquires whether there is anything in the revised decentralization legislation (2004) that can help curb such unwanted developments.
Picking Law and Articulating Ethnic Identity: Changing land and resource claims in a pluralistic community, Lampung, Indonesia
Myrna Safitri, Leiden University,
Achieving national unity for pluralistic countries like Indonesia is troublesome when law and development fails to serve all groups equally. While elites have sought to establish a single national legal system, laws pertaining to land and resource control neglect the realities of pluralistic local norms. As such, conflicts of norms are inevitable, which, in turn, facilitates social strife. Not surprisingly, rather than seek recourse in state law and adjudication, different ethnic groups have staked different historical claims over land and resources. Based on fieldwork in the ethnically diverse Gedong Gumanti village (Lampung province), this paper will explain why and how varieties of groups use a mix of state law and local norms to defend their claims over land and resources against the state and other local communities. Often, ethnic identities are used by local elites to overcome collective action problems. Moreover, these processes have been magnified under decentralization, which has given local communities the impetus to demand greater access to and control over local resources and ultimately, greater control over their fate.
Politics-As-Usual on Trial: Regional Anti-Corruption Campaigns in Indonesia
Jamie Davidson, National University of Singapore
In late 2002 hardly any regional legislative members were under investigation for corruption with respect to budgetary expenditures. A year later, nearly 270 such individuals were. What accounted for this dramatic change? Answers are not found among the plethora of good governance and anti-corruption programs International donor agencies have lavishly, given most of these energies (and monies) have been spent in Jakarta. Despite his emphasis on creating good governance, President Yudhoyono did not assume office until October 2004. Instead, this change, this paper argues, can be traced to a particular anti-corruption campaign that began in 2002 in Padang, West Sumatra. Using a multi-dimensional approach, a small coterie of activists relentlessly pursued their newly elected provincial legislators to be accountable to their democratic mandates and as important, to respect the rule of law pursuant to new national anti-corruption legislation. Padang’s success galvanized similar groups across the country to investigate their respective legislative bodies. This paper further explores anti-corruption cases in West Kalimantan to place post-Padang developments in their proper perspective. If hopes were raised that regional anti-corruption movements--based on the Padang model--might accomplish more than sensational trials but help consolidate democracy at the regional level by holding elected officials accountable, these two examples demonstrate how fleeting these expectations might be. Rather these trials were better explained by local power struggles within the executive--greatly intensified by decentralization--wherein which naïve legislators were used as pawns by crafty career New Order bureaucrats.