PETITA: Jurnal Kajian Ilmu Hukum dan Syariah Volume 6, Number 1, 2021
P-ISSN: 2502-8006 E-ISSN: 2549-8274 DOI: https://doi.org/10.22373/petita.v6i1.107
MODEL OF LOCAL GOVERNMENT IN INDONESIA: WHAT DOES THE 1945 CONSTITUTION INTEND?
INNA JUNAENAH
Universitas Padjadjaran, Bandung, Indonesia Email: inna.junaenah@unpad.ac.id
Abstract: The character of the current local government in Indonesia is moving forward to re-centralisation instead of decentralisation. Meanwhile, some comparative studies on models of local governments are catching eyes as they attempt to systemise a classification. This paper aims to describe a legal doctrinal assessment of the model of local government in Indonesia. It also gives some options for a separate comparative study, if it needs an ‘apple to apple’ or an inspiring object of study, to achieve the purposes of comparison for better legislation constituting local government in Indonesia. In doing so, the previous studies on global models of local government are examined to assess the current Indonesian legislations, covering the nature of the legal entity, source of authority and financial, organisation, and the extent in making the decision. This study points that the recent model of local government in Indonesia is a hybrid system, which implies close to Franco rather than the Anglo model, with certain specifications. However, the 1945 Constitution contains some future and global values without disregarding the root of local government function in the community. Therefore, the study considers the normative model of local government in Indonesia inconsistent with the legal policy in the 1945 Constitution. It is then considerable if an amendment of the local government Act is an option to re-modify the model of local government, which can reflect the ideas in the Constitution and is not left behind the global trends.
Keywords: Comparative local government, Decentralization, Model Of Local Government 1945 Constitution of Republic of Indonesia
Abstrak: Karakter Pemerintahan Daerah yang Nampak hari ini di Indonesia lebih mengarah pada re-sentralisasi daripada desentralisasi. Sementara itu, beberapa kajian perbandingan mengenai model-model pemerintahan daerah cukup menarik untuk dapat dilihat bagaimana untuk mengklasifikasi suatu sistematisasi. Dalam tulisan ini hendak dipaparkan sudut pandang yuridis-normatif terhadap model Pemerintahan Daerah di Indonesia. Termasuk di dalamnya terdapat suatu pilihan untuk studi perbandingan, apakah dibutuhkan syarat suatu kesetaraan atau syarat suatu objek kajian yang dapat mengispirasi, untuk mencapai tujuan perbandingan yaitu penyempurnaan suatu hukum yang mengatur Pemerintahan Daerah di Indonesia. Untuk itu, kajian-kajian terdahulu mengenai model- model Pemerintahan Daerah secara global telah ditelaah berikutnya sebagai bahan untuk dapat mencermati peraturan perundang-undangan di Indonesia, yang meliputi makna entitas hukumnya, sumber kewenangan dan keuangan, kelembagaan dan sejauh mana untuk menentukan keputusan. Ditemukan bahwa model Pemerintahan Daerah di Indonesa merupakan system hybrid, yang lebih mendekati model Franco dibandingkan dengan model Anglo beserta spesifikasi di dalamnya. Bagaimanapun, Undang-Undang Dasar 1945 berisi nilai-nilai masa depan dan global tanpa mengesampingkan akar dari fungsi Pemerintahan Daerah di masyarakat. Dengan patokan seperti itu, model normatif Pemerintahan Daerah di Indonesia tidak sejalan dengan dengan gagasan dalam UUD
1945. Maka dari itu, suatu perubahan terhadap Undang-Undang Pemerintahan Daerah dipandang sebagai suatu upaya yang dapat dipertimbangkan untuk re-modifikasi model Pemerintahan Daeeah dapat mencerminkan gagasan dalam Konstitusi tanpa tertinggal oleh kecenderungan global.
Kata Kunci: Perbandingan Pemerintahan Daerah, Desentralisasi, Model Pemerintahan Daerah, UUD 1945 Negara Republik Indonesia
Introduction
The character of the current local government in Indonesia is moving backward to re- centralisation instead of decentralisation. It is viewed from the Local Government Law No. 23 of 2014 (hereinafter the LGL 2014) as the implementing Law of article 18, 18A, and 18B of the 1945 Constitution. It is noticeable that the present 1945 Constitution is the resultant of amendments aggregated in 1999-2002. Indra Perwira convinces that the recent governing Act on local government contradicts the Constitution due to the consideration of LGL 2014 adds the frame of centralism into a local autonomous system.
By the time this Act experiences some amendments either by political or judicial review, it leads to the vague model of local government regarding the matters of authority and the relationship between central and local government.
Meanwhile, some comparative studies on models of local governments, mainly brought by Christine Cheyne Bataveljic, Jerotijevic & Logarusic, Harold Wolman, and Shah, A., &
Shah, S, are attractive. Notwithstanding that the local authority is not a subject of across- national, but within-national comparison,1 studying multiple models of local government might systemise a classification. Therefore, this paper intends to describe a legal doctrine assessment on the model of local government in Indonesia. It also gives some options for a separate comparative study, if it needs an ‘equal’ or benchmark references, to achieve the goals of future comparison for better legislation constituting local government in Indonesia.
Respectively, it will take the first step to identify the local government system among the major models. Afterward, that State will be assessed to the intention model of the 1945 Constitution. Then, several previous studies on global models of local government are displayed to examine the current Indonesian legislations, covering the nature of legal status, service delivery, financial resources, or control relationship between central and local authorities. This research article uses secondary data sources, such as relevant regulations, books, reports, and documentary evidence through Internet documents.
Models of Local Government
There is no single model of local government that suits Indonesia since each model has its peculiarities. Nevertheless, it serves valuable framework in identifying which one is the closest. Bataveljic et al.2 group four major models of local government, such as first, England and the United States describe a direct and independent local government. The second is a child local government represented the most by France, followed by the third type: dual characters showed by the modern Constitution of the Federal of Germany.
The fourth type feats the uniqueness demonstrated by Russia and China, in which there
1 Wiatr JJ, ‘Comparative Study of Local Government and Politics’ [1980] International Political Science Review / Revue internationale de science politique, 143.
2 Jerotijevic D and Logarusic D Bataveljic D, ‘A Comparative Analysis of the Most Popular Models of Local Government’ (2016) 62 Ekonomika, Journal for Economic Theory and Practice and Social Issues, 141; See also, Obikwu, ‘The Federal Constitution, National- Ethnic Minority Groups and the Creation of States: The Post–Colonial Nigerian Experience’ (2017) 2 Petita: Jurnal Kajian Ilmu Hukum Dan Syariah <http://petita.ar-raniry.ac.id/index.php/petita/article/view/56>.
is no distinction between the central and the local government. When identifying New Zealand, Christine Cheyne distinguishes the Anglo model from Franco and the North and Middle European’group.3 The two groupings have a significant incision in terms of the naming. This paper considers that the local government model brought by Nakonechniy and Cheyne is ‘macro design. Meanwhile, the two other are ‘micro design’ because most countries intend to develop a hybrid-variant model of local government.
Macro Design
Bataveljics’ first model focuses on the well-structure and diversity of local governments inherited by the British settlers into the United States. This character is developed in the US by distinguishing between urban and rural.4 Equally, both have outlined the Anglo-Saxon legal tradition. Cheyne adds some features that local government has no constitutional status and is granted a significant proportion of money transfer from central government, excluding New Zealand.5 French model, according to Bataveljics et al., reflects a strict hierarchy. The local authorities’ self-management level has been minimal since the local government is carrying out somewhat restricted work in its own competence, which is of lesser importance for the Trust’s work.6
Turn to the hybrid model; Cheyne names it as North and Middle European. In parallel, Cheyne emphasises the character of deconcentration within the constitutional status.7 By both models combination with various specific features, the hybrid model has the local government’s autonomy and a limited delegation of authority. Cheyne puts hope in this hybrid system due to the Constitution underpinning the status of local government.
Considering the North and Middle European’ groups as the most overt decentralist, Cheyne suggests it as a future model.8 Territorial decentralisation in Germany exists and can be classified as major countries, both by population and area. The local governments enjoy a high degree of autonomy, which means that decentralisation implementation is unlike other European countries.9 On the contrary, there are striking similarities in the organisational structure of the local populations of the countries that comprise the German federation, which exhibit a high degree of uniformity. A distinction in this comparison is that Bataveljics et al. submits an extended group for the Russia and China peculiarity, while silent in Cheynes’.
By the name, those classification reminds legal scholars of the most common-recognized legal tradition. It has Anglo-Saxon Law10 and Continental European11 based on the territory of origin, or in other established-name, Common Law and Civil Law. It is now well established that Bataveljics and Cheyne underpin the sort of legal tradition into the classification of local government. However, the linkage of each other does not appear, as merely based on implied discourse, Bataveljics et al. skip mentioning the Anglo character.
The key features of the common Law are the unclassified Law and the precedent distinct to the civil Law, which feats law classification and legislative decisions.12 Therefore, those
3 Cheyne C, ‘Empowerment of Local Government in New Zealand: A New Model for Contemporary Local-Central Relations?’ (2008) 1 Commonwealth Journal of Local Governance, 30.
4 Note 2, 143, 154.
5 Note 3.
6 Note 2, 145.
7 Note 3.
8 Ibid.
9 Note 2, 149.
10 Britannica TEoE, Anglo-Saxon Law (Encyclopædia Britannica, inc 2012).
11 Brouwer R, ‘On the Meaning of “System” in the Common and Civil Law Traditions: Two Approaches to Legal Unity’ (2018) 34 Utrecht Journal of International and European Law, 46.
12 Cooper T, Common Law Civil Law Traditions (The Institutes of Justinian 1812); Miller BG, Oral History on Trial : Recognizing Aboriginal Narratives in The Courts (UBC Press 2011); O’Connor V, Common Law
scholars should conjunct the two models that in the Anglo group, the legal status of local government is based on uncodified (read: non-documentary) Constitution. Additionally, in Franco or France model, local government is granted by the Constitution and elaborated by statutes. However, of those, the legal status of local government is the path of constitutional rights and responsibilities.
Micro Design
Now, turn to the other classification of local government model inspired by Bataveljic, D., Jerotijevic, D., & Logarusic, D. and Shah, A., & Shah, S., Dragan Bataveljic, Dusan Jerotijevic, and Dejan Logarusic grouping the Britain, France, Germany and United States. By the centuries-old traditions, local government in Britain enjoyed a high degree of autonomy, on which central authorities could hardly interfere and impose any supervision on local authorities.13 Some reforms then evolved the deducted independent of local self-government by unifying common local-law into national Law14 and the financial support from central government.15 In contrast, French reputably has been practising deconcentration for a long time. Thus, it lacks the degree of self-local government. In moderate manners, Bataveljic, Jerotijevic, and Logarusic outline that French gradually moves towards ‘light but secure decentralisation’, whilst England to ‘mild centralisation’.16 Bataveljic et al. suggest Germany allows a high degree of decentralisation rather than any other European country. Equally, the United States also recognises various asymmetric decentralisation.17 However, in Germany, constitutional tradition statutes the list of services performed by municipalities and counties under general clause arrangement, although the local government may determine the internal organisation.18 Meanwhile, in the US, based on the urban and rural areas, three systems exercised are:
1) model mere-council - the first and oldest model in which local voters directly elected mere and advice, and in this way to elect judges and administrative officials; 2) a commission model - sparsely body (Commission), which is directly elected by local voters, simultaneously legislative and executive authorities, so that every member of this commission is managed by an administrative department, 3) management model.19
The most extended classification of model of local government in this paper is written by Anwar Shah and Sana Shah, mentioning the Nordic, Swiss, French, German, British, Indian, Chinese, Japanese, North American, and Australian models. The first mentioned model is Nordic.20 The nordic model demonstrates an extensive scope of services and local expenditure by self-finance. The uniqueness of Swiss is that local government can practice activities related to the central government’s list, such as immigration, citizenship, language, and foreign economic relationship.21 Besides having delegated tasks, each canton has its own Constitution, parliament, government, and courts. It also posses autonomy, particularly in local planning and local taxation. Tasneem Sikander generalises that local self-government in the Scandinavian and other countries were shaped by urbanisation
and Civil Law Traditions (INPROL - International Network to Promote the Rule of Law 2012).
13 Note 2 142-145.
14 Bagir Manan, Otonomi Daerah Dan Kesejahteraan Rakyat (Ikatan Hakim Indonesia 2018).
15 Note 2 . 16 Ibid, 145-146.
17 Ibid, 151-153.
18 Ibid, 148-151.
19 Note 2 152-153
20 Shah A and Shah S, ‘The New Vision of Local Governance and the Evolving Roles of Local Governments’
in Shah A (ed) (ed), Local Governance in Developing Countries (World Bank Publication 2006).
21 Note 20
and industrialisation .22 These phenomena demand deliberation from the restrain of the central government on local communities.23
There is no other distinct explanation of the French model, but a strengthening local government relies on central financing and dual supervision. Such supervision imposes the continuous command chain by regional and departmental heads and commanders and the similar chain of command by line and functional departments. This type of supervision includes multiple command staff.24 Therefore, Shah and Shah support counting the German model with a great deal of autonomy. Similarly, French and Britain have dual supervision. However, the provisions of local services in Britain highlight a firmer role for local apparatus appointed centrally and for sectoral and functional ministries.25 In services, local government exercises a shortlist of property and people-oriented matters.
Turn to the non-European model, local government in India is influenced by British loyalty, creating centralism on governance, whereas little efforts are taken to strengthen local autonomy.26 A tight centralisation is imposed in the Chinese model, through the accountability framework of provincial and local government to higher-level government in general. Additionally, the functional departments shall be accountable to higher-level functional agencies and departments.27 In centralism sense, the Japanese model has a similar pattern with French, in terms of control through the Ministry on heads of regional governments. The services performed are determined by the central government.28 In line with the mentioned description of the US model, North America displays the formal institution of local government created by states.29 Unlike in India, British and Netherland, the local government has existed before the country’s establishment.30 However, states in Norths America implement ‘Dillon’s rule’to grant autonomy to local government.31 Having similarities with the Anglo model, Australia does not recognise the local government in the Constitution. However, most states deliver tasks of local government function. It has an identical pattern with the arrangement in New Zealand.32
Of those four models, shifting relying on which model is the most suitable to apply for Indonesia is not an easy task. This is because, borrowed from what Shah and Shah suggest, there is no similar-precise pattern of local government across countries.33 Instead, it can be underlined that measuring the degree and varying decentralisation practices is their primary purpose. It is regarding the legal status, service delivery, financial resources, or control relationship between central and local authorities. Therefore, it is not surprising if Shah and Shah conclude that local governments established by legislation, on the whole, suffer from a lack of decentralisation.34 For this thesis, the authors would argue that it implies a misuse due to Shah and Shah’s failure to define the notion of ‘creature of the legislation.’ This argument then will be linked to the part of the Indonesia model.
22 Sikander T, ‘A Theoretical Framework of Local Government’ (2015) 5 International Journal of Humanities and Social Science, 174.
23 Note 22
24 Shah A and Shah S (n 20).
25 Note 24 26 Ibid.
27 Ibid.
28 Note 24 29 Ibid.
30 Bagir Manan, ‘The Tradition of Local Government in Britain and Dutch’ (2019).
31 Note 24 32 Ibid.
33 Ibid.
34 Ibid.
Back to the possibility of the reliable model, as mentioned earlier, it is a fact that most countries from around the world intend to develop a hybrid-variant model of local government. This kind of pattern has been experienced by the evolution of legal tradition applied by many countries, which Vivian O’Connor agrees, converging from different directions.35 In this sense, O’Connor cites Mirjan Damaska’s illustration of no pure system between Common Law and the Civil Law, like “stressing coffee and cream when cappuccino is the norm.”36 It is the inevitable fact that contemporary there has been significant borrowing between both.37
Such a pattern has been proved in the macro design of local government with the additional variation of socialist or communist model. The rest, this study will assess the shifting practices of Indonesia towards which micro design reflects therein. Some studies on local government in Indonesia support the description of Indonesia. Nevertheless, they are partially down-to-date,38 mixing decentralisation with deconcentration.39 Moreover, it lacks a democracy overview by only pointing to the local election.40 However, they enrich the comprehensiveness of references. Therefore, decentralisation in this paper holds decentralisation as a constitutional matters in a narrow sense, distincted to deconcentration as administrative.41
Legal Existing and Constitutional Policy Model of Local Government in Indonesia
It is mentioned earlier that the LGA 2014 shifts the model of the local government of Indonesia towards centralism. In this part, the extent of this thesis elaborates 1) legal status, 2) service delivery, 3) financial resources, and 4) control relationship between central and local authorities.
Legal status
Before establishing the State, local governments, such as areas in Java, Madura, Sumatera and Borneo, had existed under the recognition of self-governing states (swapradja) within the colonial framework and the lower administrative structure was thus more independent of the centre.42 It rapidly evolves within a ‘big bang’ decentralisation provided by the Law No. 22 of 1999 on Local Government.43 A legal policy brought by the original 1945 Constitution is developed by the second amendment justifying the legal status of local government. Article 18(1) constitutes as follows:
The Unitary State of the Republic of Indonesia is divided into provinces, and a province is divided into Kabupaten and Kota, with each province, Kabupaten and
35 O’Connor V (n 12).
36 Note 35 34 37 Note 35
38 Krishnamohan T, ‘The Local Government System in Indonesia and Sri Lanka: A Comparative Overview’
(2016) 3 International Journal in Commerce, IT & Social Sciences.See also, H. B. McCullough, Political Ideologies (Oxford University Press 2017); Tim Lindsey and Simon Butt, Indonesian Law (Oxford University Press 2018); Martin Loughlin, Political Jurisprudence, vol 1 (Oxford University Press 2018); Simon Butt, The Constitutional Court and Democracy in Indonesia (Brill | Nijhoff 2015).
39 Aritonang DM, ‘Politics of Deconcentration for Local Government: The Case of Indonesia’ (2016) 55 Journal of Law, Policy and Globalization, 78.
40 Rudy R, ‘18 Years of Decentralization Experiment in Indonesia’ (2017) 10 Journal of Politics and Law 41 Susanto Mei, ‘“Bagir Manan: Perjalanan Historis Pasal 18 UUD 1945 (Perumusan Dan Undang-Undang 135.
Pelaksanaannya”’ (2015) 2 Padjadjaran Jurnal Ilmu Hukum.
42 Legge JD, ‘Central Supervision and Local Government in Indonesia’ (2008) 3 Australian Journal of Politics & History 81.
43 Nasution A, ‘Government Decentralization Program In Indonesia’ (2016) 601.
Kota having its regional administration regulated by Law.44
Each administration has responsibility to regulate and manage its own local affairs by the principle of autonomy and the duty of assisting (Art. 18 (2)).45 Institutionally, Art 18 (3) constitutes the local representative bodies (Dewan Perwakilan Rakyat Daerah- DPRD) and head of local government (Governor and Mayor) (18 (4)), that shall be elected democratically (18 (5)). Further, this Article mandates a regulation regarding the organisation and its mechanism of implementation onto parliament legislation (Art. 18 (7)). The descent of DPRD election is already regulated in the separated Act of the LGL 2014. At the first promulgation, the present LAW (LGL 2014) governed that the fulfilment of the Governor and Mayor position method is under the competence of DPRD.46 At present, that authority is repealed by the Enactment of Government Regulation in Lieu of Law (Perpu) No 23/2014. Governor and Mayor serve five years after the election (Art. 2),47 unless a typical impeachment is imposed by the Art 68 of LGL 2014. The reason for that is if Governor or Mayor did not carry out a national strategic program. Dismissal as a Head of local government or representative of the central government will be asserted after two steps of the administrative warning system.
According to the macro design, Indonesia closes to the Franco element (Art. 72) .48 Local government in Indonesia has constitutional status regarding the layer of government, enjoys self-governing legitimation through elected councils, and has the authority to make local ordinances for matters coming under their jurisdiction. Inevitably, the internal organisation has nothing as subordination with the higher government, as they can freely determine their offices through the election. The ambiguous State will go to Governor and Mayors’ possibility to be dismissed by the central government, whereas they were legitimated by-election. Such a mechanism reflects no alignment in democratic logic. At the same time, several authorised vertical institutions are appointed to do the task in local territories, representing government interests. Under micro design, the constitutional status of the local government is also granted, particularly in France, Japan, Germany, India, and China.
Service Delivery
Art 18 (5) of the 1945 Constitution governs the principle of extending services delivered by the local government under the principle of broadest possible autonomy. The exemption can be applied to the matters of governance that Law determines as the prerogative of the Central Government (6). Nonetheless, the LGA 2014 drags the other of constitutional justification, reminding the frame of unitary State into consideration. It also intends to highlight that the local government list leans of the President’s willingness, as the power holder of government, to distribute the power vertically (Art 4 (1) 145 Constitution).
In the implementation, President, with the State Ministers’ assistance, mandates some responsibilities for a specific area of governance (Art. 17 (1) and (2). For this sense, this LGA 2014 neglects the Art. 4 (1) notion that it should be implemented following the Constitution. With respect, the responsibility to embody and implement Art. 18, 18 A and 18B of the Constitution lie on the President.
44 Republic-of-Indonesia, 1945 Constitution of Republic of Indonesia (1945).
45 Note 44
46 Republic-of-Indonesia, Peraturan Pemerintah Pengganti Undang-Undang Republik Indonesia Nomor 1 Tahun 2014 Tentang Pemilihan Gubernur, Bupati, Dan Walikota 2014.
47 Note 46
48 France’s-Constitution-of-1958, France’s Constitution of 1958 with Amendments through 2008 (constituteproject.org Amendments-2008).
Return to services; the LGL 2014 lists both provincial and municipal responsibilities to sectors only under concurrent power among the three-layer of governments. Under Art 9 (1), there are no original matters of local government due to the classification of governance consists of “of absolute government affairs, government affairs concurrent, and general government affairs.” Notwithstanding, the list includes a wide range of sectors, such as education, health, spatial, housing, social and public order, labour, women and children empowerment, food, land, environment, transportation, civil registration, and micro-entrepreneurship. Furthermore, the local authorities are limited by its supplement, in which concurrent power is displayed in an enumerative table. This recent Act is far away from the sound of assertiveness of central government under the previous Law (32/2004), leading to well-established district and provincial autonomy, which were not many subordinates to provincial governments’.49 In this Act 32/2004, provincial governments used to be the most potent sub-national government level.50
In Macro design, Indonesia has a parallel character in the hybrid system regulating and managing local matters. Nonetheless, it is under limited authority to share power between central, provincial, and municipal governments. An element from Franco can be found by the dualism of services granted both by statutes and transfer power from the authorised ministries. Far away from the United States, Nordic, and Swiss model, Indonesia is shifting to centralism in micro-design service delivery. It has the sameness to Britain, Japan, and India in decentralisation struggle, in which the provincial government can delegate tasks in a limited-specific list to a lower level.
Financial Resources
The LGL 2014 links Article 23E (1) of the Constitution with a financial audit. This Article encompasses the local government budget as of the States’ finance forms. It underpins the strong justification for the central governments’ financial control because the report mainly addressed DPRD. The LGL 2014 recognises the financial sources of local government, which separately has been regulated by Act No. 33 of 2004. As also reported by Anwar Nasution, local governments can significantly control expenditure, which reduces the control exerted by the central government but the power to collect tax and borrow remains very limited.51 Other financial sources are the grant and transfer, such as a) a minimum allocation, namely the General Allocation Fund (Dana Alokasi Umum-DAU), b) Equalization Grant (Dana Bagi Hasil-DBH), and c) the Special Allocation Funds (Dana Alokasi Khusus-DAK).52 Additionally, the central government provides emergency funding to cover subnational governments’ budget deficits caused by natural disasters and restore their solvency.53 Indonesia follows the Anglo model in macro design, which has significant financial transfer from the central government. Consequently, it creates high dependence on local government. It is experienced by Britain, India, China, and Japan, in micro design Control Relationship Between Central and Local Authorities
Nothing explicit stipulation about supervision on local government is expressed in the Constitution unless the provision in conjunction with authority and financial relationship between central and local government, which have to be according to the Act of parliament (Art. 18 (7) and 18A).54 However, in interpreting those provisions, the Local Government Act (LGA.) No. 23 of 2014 categorises the overseeing of local authorities by the central
49 ‘UCLG, Profile of Indonesia (United Cities and Local Government (UCLG) and OECD 2016)’.
50 Note 49 51 Note 43 5 52 Note 43 8 53 Note 43 9 54 Note 44
government into two modes. First, the local government shall submit annual reports on its performance (Art. 69-70). Second, there is a mechanism regarding overseeing issuing by-laws and other regional regulations (Art. 242, 245, 251-252). This research will focus on the administrative supervision of by-laws (Perda), involving a priori and a posteriori supervision, including the possibility of approving, annulling, or discontinuing by-laws.
These are the conditions under which the central government, or the Ministry of Home Affairs, supervises the creation of provincial by-laws. In contrast, the Governor supervises municipal by-laws as representatives of the central government (Art. 251 (2)).
The system of central government control on Perda is provided in two methods, at a priori (previous) and a posteriori control, covering the possibility of approving, annul, and discontinuing the by-law. The LGL 2014 constitutes that previously, the by-law shall be evaluated only in spatial planning, taxes, and retribution revenues, regional long and middle-term planning, and revenues and expenditure budget. In supervising local government, the Art. 242 constitutes by-law on any matters to be forwarded to The Ministry of Home and Affairs for gaining some register number. Broadening this provision, the Ministry regulates in Peraturan Menteri Dalam Negeri Nomor 80 Tahun 2015 that before promulgated, the by-law is facilitated to have a correction to eliminate the possibility of nullifying on by-law at posterior control. Those responsible for preventive control are due to the government level, e.i., the Governor and Minister, respectively, check municipal by- law and Provincial by-law. With a similar pattern of gradual steps, the posterior control can be conducted if some by-law –with any subject matter- is indicated to contradict the higher level of regulations and abuse the public interest (Art. 251-252).
Nonetheless, the Constitutional Court of the Republic of Indonesia considered this doubled supervision is redundant. Since June 2017, following the verdict of the Constitutional Court of the Republic of Indonesia No. 137/PUU-XIII/2015 and No. 56/PUU-XIV/2016 when reviewing Art. 251 of Local Government Act No. 23/2014, the central government no longer exerts a posteriori control of by-laws on provincial or municipal levels.55 However, it remains the a priori overseeing such confirmation/approval mechanism before the enactment/ promulgation of bye-law. The court implied that a by-law is a form of delegated or subsidiary legislation, which can only be annulled under the competence of the Supreme Court.
In conjunction with macro design, Indonesia has dual supervision like the Franco model.
The thing distinguishes that in France, in micro, dual supervision laying administrative supervision is only addressed to the deconcentration process. Indonesia closes more to Japan by applying a control from the authorised Ministry and China, which drives accountability to higher government.
Constitutional Intention Legal Status
Shah and Shah place the local government in Indonesia as the creature of legislation.56 This assessment of Indonesia might be incorrect as many local institutions in Indonesia had existed before the State establishment, both in municipal/regencies and village levels.57 The argument occurs as cogitating a similar pattern with England and Netherland. According to Bagir Manan, both under the separation of power doctrine and political science, the
55 Constitutional-Court-of-Republic-of-Indonesia, Constitutional review on Local Government Act 2014, the verdict of Constitutional Law of Republic of Indonesia (No. 137/PUU-XIII/2015 and 56/PUU- XIV/2016); See also, A Ahsi Thohari, ‘The Manifestation of the Rechtsidee of Pancasila in Regulating the Constitutional Rights in Indonesia’ (2019) 4 Petita: Jurnal Kajian Ilmu Hukum Dan Syariah 149.
56 Note 24 57 Note 14 18
study of local government rests on the executive branch c.q. Public administration.
Such a position makes local government law featuring the norms of administrative Law (constitutional Law in a narrow sense).58
Bear in mind, not all functions of the executive shall be handled by the local government.
Only public service, among public order and defence functions, is performed under local autonomy.59 In pursuing the alignment with the ‘welfare state’, the other function of executives is directed to guarantee public welfare, the best interest of the common.
DPRD, the local council as a representative body with rulemaking, is limited to public administrative matters. In other words, DPRD is part of the executive branch at the local level.60 That explanation opens the idea on Art. 18 of the 1945 Constitution, to grant local autonomy in limited authority, as long as it is categorised as administrative matters. Thus, constitutional status underpins an ideal model for local governments to manage matters that suit local conditions.
Service Delivery
Art 18 (5) of the 1945 Constitution governs the principle of extending services delivered by the local government under the principle of broadest possible autonomy. The exemption can be applied to the matters of governance determined by Law as the Central Governments’ prerogative (Art. 18 (6)). According to Bagir Manan, the primary function of local government is public service for the sake of public prosperity and just; therefore, it desires technocratic and managerial skill, integrity, appropriate knowledge, and leadership.61 Hopefully, decentralisation boosts social change.62 By macro design, surely it desires to represent the hybrid model. Unfortunately, the LGL intends to uniformity and increase local government dependence on what authority is granted. The similar problem goes to Japan, besides India. Japan calls for widen decentralisation since the Japanese local government sector is more subject to control and guidance from the centre. H. Shiba entails such indication by a premise that a greater degree of autonomy for local government in Japan will be beneficial.63
Financial Resources
Article 18A(2) of the 1945 Constitution stipulates that finance, public services, and the exploitation of natural and other resources between the central government and the local governments must be regulated by Law and implemented in a fair and coordinated manner. With restraining the corruption phenomenon, a local government must be viable to manage the financial transfer to absorb public necessities, particularly in boosting the higher standard of morale, commitment, and productivity.64 Nonetheless, the auditory system tends to limit specific block grants (Manan, 2019),65 limiting the viability of local government to respond to public needs. Therefore, the 1945 Constitution aspires Germany, Britain, Japan, and Australia model.
Control Relationship Between Central and Local Authorities
The only explicit sort of oversight under the 1945 Constitution goes to financial auditory under Article 23E. Nevertheless, supervision is always inherent with the autonomy to
58 Note 12 10 59 Note 12 11-12 60 Note 12 13 61 Note 12 17 62 Note 30
63 Shiba H, Comparative Local Governance: Lessons from New Zealand for Japan (Victoria University of Wellington 2008).
64 Note 12 16 65 Note 30
assure that local governments activities achieve concrete work of local legislation66 and manage local matters. The LGA 2014 continues positing Governor in dual function, as a representative of the central government and head of provincial government. However, the central government requires uniformity of local government, and historically it has never been proved to affect good.67
In a decentralised environment, Harufumi Shiba convinces that local governance concerns how the different interests of the central government, municipalities, and communities are settled in general.68 Therefore, Shiba also makes Japan a benchmark to re-modify the model of local government that represents the ideas expressed in the Constitution and addresses global desires.69 Notably, it demands a further study of comparative local government that serves some inspiration.
Conclusion
To sum up, the normative model of local government in Indonesia governed by recent legislations is considered inconsistent not in line with the idea of the 1945 Constitution. To some extends, Constitution desires a higher degree of autonomy that still struggles under the implementing legislation. The 1945 Constitution contains some future and global values respecting and empowering the root of local government function in a community, which aligns with the shared vision of local self-government as a society’s expression.70 As well, this study points that the recent model of local government in Indonesia is a hybrid system that combines Franco in terms of constitutional status, and the Anglo model under significant financial transfer, under the macro design. Additionally, it reflects certain micro-design specifications, having elements from China, Japan, Britain, and India.
Acknowledgements
The author gratitudes to Dr. Indra Perwira, the Head of Pusat Studi Kebijakan Negara -PSKN, Law Faculty, Universitas Padjadjaran. Such an expression is also towards Associate Professor Dr. Normawati Hashim, the Main Supervisor, where the Author is pursuing the Ph.D. study program in Faculty of Law, Universiti Teknologi MARA, Malaysia. Both have shared their insight into the authors’ understanding of Indonesias’ Local Government Law and comparative local administration, respectively.
Conflict of Interests
The authors declare no conflict of interest.
Bibliography
Miller BG, Oral History on Trial : Recognizing Aboriginal Narratives in The Courts (UBC Press 2011)
O’Connor V, Common Law and Civil Law Traditions (INPROL - International Network to Promote the Rule of Law 2012)
Shah A and Shah S, ‘The New Vision of Local Governance and the Evolving Roles of Local Governments’ in Shah A (ed), Local Governance in Developing Countries (World Bank 2006)
UCLG, Profile of Indonesia (United Cities and Local Government (UCLG) and OECD 2016)
66 Note 12 25 67 Note 42 68 Note 63 69 Note 63 70 Note 22 12
Britannica TEoE, Anglo-Saxon law (Encyclopædia Britannica, inc. 2012) Cooper T, Common Law Civil Law Traditions (The Institutes of Justinian 1812)
Aritonang DM, ‘Politics of Deconcentration for Local Government: The Case of Indonesia’
(2016) 55 Journal of Law, Policy and Globalization 78
Bataveljic D, Jerotijevic D and Logarusic D, ‘A Comparative Analysis of the Most Popular Models of Local Government’ (2016) 62 Ekonomika, Journal for Economic Theory and Practice and Social Issues 141
Bataveljic D, Jerotijevic D and Logarusic D, ‘A comparative analysis of the most popular models of local government’ (2016) 62 Ekonomika 141
Brouwer R, ‘On the Meaning of ‘System’ in the Common and Civil Law Traditions: Two Approaches to Legal Unity’ (2018) 34 Utrecht Journal of International and European Law 46
Cheyne C, ‘Empowerment of Local Government in New Zealand: a New Model for Contemporary Local-Central Relations?’ (2008) 1 Commonwealth Journal of Local Governance 30
Cheyne C, ‘Empowerment of local government in New Zealand: a new model for contemporary local-central relations?’ (2008) Commonwealth Journal of Local Governance 33
Krishnamohan T, ‘The Local Government System in Indonesia and Sri Lanka: A Comparative Overview’ (2016) 03 (Impact Factor: 4.218) International Journal in Commerce, IT
& Social Sciences
Legge JD, ‘Central Supervision and Local Government in Indonesia. Australian Journal of Politics & History’ (2008) 3(1) 81
Perwira I, ‘Konstitusionalitas Undang-Undang Nomor 23 Tahun 2014 tentang Pemerintah Daerah’ (2015) 2 Padjadjaran Journal Ilmu Hukum 439
Rudy R and others, ‘18 Years of Decentralization Experiment in Indonesia: Institutional and Democratic Evaluation’ (2017) 10 Journal of Politics and Law 135
Sikander T, ‘A Theoretical Framework of Local Government’ (2015) 5 International Journal of Humanities and Social Science 174
Susanto M, ‘Bagir Manan: Perjalanan Historis Pasal 18 UUD 1945 (Perumusan dan Undang- Undang Pelaksanaannya’ (2015) 2 Padjadjaran Jurnal Ilmu Hukum Volume 2 Nomor 3 Tahun 2015 622
Wiatr JJ, ‘Comparative Study of Local Government and Politics’ (1980) 1 International Political Science Review / Revue internationale de science politique 143
Wolman H, ‘Comparing Local Government Systems across Countries: Conceptual and Methodological Challenges to Building a Field of Comparative Local Government Studies’ (2008) 26 Environment and Planning C: Government and Policy 87
Constitutional-Court-of-Republic-of-Indonesia, Constitutional review on Local Government Act 2014, the verdict of Constitutional Law of Republic of Indonesia (No. 137/PUU- XIII/2015 and 56/PUU-XIV/2016)
France’s-Constitution-of-1958, France’s Constitution of 1958 with Amendments through 2008 (constituteproject.org Amendments-2008)
Republic-of-Indonesia, 1945 Constitution of Republic of Indonesia (1945)
Republic-of-Indonesia, Peraturan Pemerintah Pengganti Undang-Undang Republik Indonesia Nomor 1 Tahun 2014 Tentang Pemilihan Gubernur, Bupati, Dan Walikota (2014)
Manan B, Otonomi Daerah dan Kesejahteraan Rakyat (Ikatan Hakim Indonesia 2018) The Tradition of Local Government in Britain and Dutch (8 January 2019)
Nasution A, Government Decentralization Program In Indonesia (ADBI Working Paper 601, 2016)
The Local Government Act Number 23 Year 2014 Local Government Act
Shiba H, ‘Comparative Local Governance: Lessons from New Zealand for Japan’ (School of Government, Victoria University of Wellington 2008)
Aritonang DM, ‘Politics of Deconcentration for Local Government: The Case of Indonesia’
(2016) 55 Journal of Law, Policy and Globalization
Bagir Manan, Otonomi Daerah Dan Kesejahteraan Rakyat (Ikatan Hakim Indonesia 2018) Bataveljic D JD and LD, ‘A Comparative Analysis of the Most Popular Models of Local
Government’ (2016) 62 Ekonomika, Journal for Economic Theory and Practice and Social Issues
Britannica TEoE, Anglo-Saxon Law (Encyclopædia Britannica, inc 2012)
Brouwer R, ‘On the Meaning of “System” in the Common and Civil Law Traditions: Two Approaches to Legal Unity’ (2018) 34 Utrecht Journal of International and European Law
Butt S, The Constitutional Court and Democracy in Indonesia (Brill | Nijhoff 2015) <https://
brill.com/view/title/22895>
Cheyne C, ‘Empowerment of Local Government in New Zealand: A New Model for Contemporary Local-Central Relations?’ (2008) 1 Commonwealth Journal of Local Governance
Cooper T, Common Law Civil Law Traditions (The Institutes of Justinian 1812) H. B. McCullough, Political Ideologies (Oxford University Press 2017)
Krishnamohan T, ‘The Local Government System in Indonesia and Sri Lanka: A Comparative Overview’ (2016) 3 International Journal in Commerce, IT & Social Sciences
Legge JD, ‘Central Supervision and Local Government in Indonesia’ (2008) 3 Australian Journal of Politics & History 81
Loughlin M, Political Jurisprudence, vol 1 (Oxford University Press 2018) <https://oxford.
universitypressscholarship.com/view/10.1093/oso/9780198810223.001.0001/
oso-9780198810223>
Manan B, ‘The Tradition of Local Government in Britain and Dutch’ (2019)
Miller BG, Oral History on Trial : Recognizing Aboriginal Narratives in The Courts (UBC Press 2011)
Nasution A, ‘Government Decentralization Program In Indonesia’ (2016) 601
O’Connor V, Common Law and Civil Law Traditions (INPROL - International Network to Promote the Rule of Law 2012)
Obikwu, ‘The Federal Constitution, National- Ethnic Minority Groups and the Creation of States: The Post–Colonial Nigerian Experience’ (2017) 2 Petita: Jurnal Kajian Ilmu Hukum Dan Syariah
Rudy R, ‘18 Years of Decentralization Experiment in Indonesia’ (2017) 10 Journal of Politics and Law 135
Shah A and Shah S, ‘The New Vision of Local Governance and the Evolving Roles of Local Governments’ in Shah A (ed) (ed), Local Governance in Developing Countries (World Bank Publication 2006)
Shiba H, Comparative Local Governance: Lessons from New Zealand for Japan (Victoria University of Wellington 2008)
Sikander T, ‘A Theoretical Framework of Local Government’ (2015) 5 International Journal of Humanities and Social Science
Susanto Mei, ‘“Bagir Manan: Perjalanan Historis Pasal 18 UUD 1945 (Perumusan Dan Undang-Undang Pelaksanaannya”’ (2015) 2 Padjadjaran Jurnal Ilmu Hukum
Thohari AA, ‘The Manifestation of the Rechtsidee of Pancasila in Regulating the Constitutional Rights in Indonesia’ (2019) 4 Petita: Jurnal Kajian Ilmu Hukum Dan Syariah 149
Tim Lindsey and Simon Butt, Indonesian Law (Oxford University Press 2018)
‘UCLG, Profile of Indonesia (United Cities and Local Government (UCLG) and OECD 2016)’
Wiatr JJ, ‘Comparative Study of Local Government and Politics’ [1980] International Political Science Review / Revue internationale de science politique
Constitutional-Court-of-Republic-of-Indonesia, Constitutional review on Local Government Act 2014, the verdict of Constitutional Law of Republic of Indonesia (No. 137/PUU-XIII/2015 and 56/PUU-XIV/2016),
France’s-Constitution-of-1958, France’s Constitution of 1958 with Amendments through 2008 (constituteproject.org Amendments-2008)
Republic-of-Indonesia, 1945 Constitution of Republic of Indonesia (1945)
Republic-of-Indonesia, Peraturan Pemerintah Pengganti Undang-Undang Republik Indonesia Nomor 1 Tahun 2014 Tentang Pemilihan Gubernur, Bupati, Dan Walikota 2014
