VI. Regional Autonomy
As someone interested in both election law and electoral systems, I spend a lot of time considering where legal authority and power should be located within constitution’s design. For some issues, like national security and military affairs, the answer seems apparent: I want authority situated mainly with a national government. If American states or Indonesian provinces were tasked with managing security concerns by raising and managing local militias, the disastrous consequences are obvious. This is well-accepted thought, and the constitutions of both countries, as well as many others, expressly relegate military affairs to the national government. But on other matters – criminal law, environmental protections, transportation – the object of regulation exists at a hyper-local level. People, trees, and roads reside neither in the abstract (like foreign policy) nor in a nation’s capital (like the Pentagon). This is not a novel observation, and every American student is familiar with the debate between local control and federal supremacy.
This entry adds the Indonesian story to that debate, a story rooted perhaps less in theory and more in experience. First, I recount some historical background central to Indonesian decentralization. Second, I unpack the legal framework for regional autonomy, including Indonesia’s interesting “special region” designation for certain provinces. I conclude with some personal thoughts on the matter given my experience and research here. No photos this time, but if you’d like my resume, cover letter, writing sample, and transcript, I have about forty copies I can enclose.
Rocks and Hard Places: Between Authoritarianism and Disintegration
As I have recounted in prior posts, the modern state of Indonesia was not produced by a consensual process. Before Dutch colonialism, disparate kingdoms and cultures populated and controlled Indonesia. Some had sophisticated and longstanding governance models; others were fluid, shifting as nomadic peoples migrated from space to space. The entire Malay peninsula, consisting of present-day Malaysia, Myanmar, Thailand, and Singapore, influenced the western island of Sumatra (the largest island in current Indonesia), while the impact of Buddhist and Hindu rulers is still felt today in Eastern Java and Bali. Meanwhile, to the east, Papuan communities on the bisected island of New Guinea enjoyed centuries of history far removed from other parts of Indonesia.
This meant little to colonial rulers, who claimed what they needed to bolster their economies and national prestige. Most of the world now lives between the boundaries they drew, but the process of socialization that occurred within those boundaries both during and after colonial control varies. The effect of Dutch rule forced upon Indonesian leaders the concept of an Indonesia, but this was an identity that developed out of contrast. For many years, to be Indonesian was to be Not-Dutch. There were the rulers who extracted resources, issued occasional decrees, and lived in major cities, and then there were the “Indos” who had to deal with their European occupiers. As happened in other areas of Asia and the continents of Africa, Australia, and the Americas, indigenous communities responded to colonialists in complicated ways: some bargained, some resisted, some self-isolated. None simply dissolved their existing cultures or forgot cleavages between neighbors.
Eventually independence came to Indonesia as nationalist leaders used Japan’s WWII occupation and defeat as a chance to declare their freedom. Having removed the yoke of colonialism, independence leaders under Sukarno shifted their focus to holding together a new nation. In a way, it may be better said that they sought to hold together the country by fostering a nation. That project was neither easy nor completed, but for the first two decades of Indonesian independence, Sukarno and his regime held Indonesia together through a combination of charismatic leadership, economic patronage, and not a little violence.
Sukarno’s balancing act between Islam, communism, revolutionary democracy, and what might be called Indonesia-ism was equal parts brilliant and unsustainable. Sukarno never managed to locate Indonesian identity in a particular characteristic, so he often grounded it in himself. By my read, Sukarno was plenty authoritarian, but he was not interested in totalitarianism, even if his approach help produce it. He jailed opposition, suppressed dissent, and rattled foreign diplomacy, but he did not oversee widespread purges or mass killings. The same cannot be said for his successor (read: deposer), General Suharto.
Suharto dispensed with Sukarno’s high wire act and deployed the tactics of a typical autocrat. Political parties were banned, communists and ideological and ethnic minorities were rounded up and murdered, and military control was imposed on most of public and private life. Suharto wanted to prevent disintegration, but this was not an ideological project as much as it was cartel preservation. Suharto’s New Order used the language of revolution and Pancasila (the national ideology) to exert a death grip on Indonesian society.
Three decades later, the Suharto regime collapsed. Fifty-three years after declaring independence, the boundaries of Indonesia were intact, but its founding father failed to build a system both stable and free, and its abusive stepfather kept the family together through draconian measures that still resulted in economic deprivation and international isolation. As the Era Reformasi that followed Suharto took hold, many Indonesian communities were disinterested in signing up for another round of exploitation and violence. Others, who saw themselves as never belonging to Indonesia in the first place, sought to break off entirely.
Reformasi leaders understood this; indeed, many shared their concerns. One of several reforms to emerge from the 1999-2002 constitutional amendments was what scholars refer to as the “Big Bang” of decentralization. To both keep the nation together and prevent the threat of authoritarianism, Indonesia’s new round of founders decided to risk what independence leaders feared most: disintegration. For two decades, it seems to have worked; at least, it has not failed.
Decentralization: Regional Autonomy
Article 25A of the amended Indonesian Constitution reads: “The Unitary State of the Republic of Indonesia is an archipelagic state, the boundaries and rights of whose territory shall be established by law.” A different set of Articles directly govern regional autonomy, but I think it is worth lingering on Article 25A for a moment because it neatly encapsulates the constitutional, legal, and cultural complexities that Indonesia faces.
The experts and legal minds I have worked with here are quick to remind me that Indonesia is not a federal system but a unitary republic. I began this post by discussing where authority and power reside in a constitutional design, and those are important questions, but we need to zoom out for a moment and discuss sovereignty. In Indonesia, sovereignty is understood to dually reside in two places: the people and the State, or national government. In the United States, it is held by the people and the several states. It is crucial to understand this theoretical distinction because it reflects where each country’s constitution locates authority and power. The framers of the U.S. Constitution understood the national government’s legitimacy (and thus any authority and power it is granted) to be predicated on protecting and furthering the sovereignty of the states and their citizens. By contrast, subnational governments in Indonesia are legitimized by their capacity to uphold the sovereignty of the nation and the citizens of that nation. Indonesians may live in provinces, regencies, and cities, but their sovereignty is guaranteed by the national government, at least constitutionally speaking. Put simply, there is a reason Indonesia is not called the United Provinces of Indonesia and the United States isn’t the Republic of America. E pluribus, unum versus ab uno, multi.
Still, as a practical matter, neither of these work in their purest forms. America’s attempt at a coalition of independent states working together under the Articles of Federation was a spectacular failure, and throughout American history, reliance on state sovereignty has led to civil war, human rights abuses, and policy fragmentation. Likewise, Indonesia’s reluctance to devolve power away from Jakarta meant authoritarianism had virtually no legal impediment, and local communities often felt (and feel) disregarded by national policymakers. Reformasi framers had to contend with the reality that the idea of Indonesia does not, perhaps cannot, replace deeply engrained cultural, religious, and community identities, nor can it satisfy the human need for some level of self-determination and agency.
Article 25A’s use of “archipelagic state” captures this. This is a nation of islands, both literally and figuratively, and administering the material and cultural needs of the Indonesian people needed to begin with an acknowledgment that, in many ways, Indonesia’s series of mini-nations had been forced together by colonialists, welded together by an independence movement, and held together, at gun point, for some thirty years. Their substantive solution, recognized by the Article 25A phrase “the boundaries and rights of which shall be established by law” and brought to life by Articles 18-18B guarantees of regional authority, was a massive decentralization process that is still unfolding today.
Articles 18-18B constitutionally guarantees the existence of provinces, regencies, and cities and relegates to them “regional authority.” The articles declare these levels of government shall have the authority and power to “manage their own affairs according to the principles of regional autonomy and the duty of assistance” in the form of regional legislatures and executives that can issue their own regulations with “wide-ranging autonomy.”
However, regional autonomy was not a total giveaway. Similar to the United States, certain powers and subject matters are reserved to the national government, and the Constitution includes several provisions that govern concurrent authority between the regions and the center. Article 18A(1) and (2) state concurrent authority is to have “regard to the particularities and diversity of each region,” and on finances, public services, and natural resources the relationship between the government and the regions should reflect “justice and equity according to law.” Importantly, each delegation of regional authority includes a provision that such authority “shall be regulated by law,” meaning the national government maintains a constitutional path to directly regulating provincial and local matters.
A legal reading immediately surfaces the ambiguity of this newfound regional power. First off, what is the unit of analysis here? The administrative structure seems clear: provinces now have their own legislative and executive authority, and provinces are further divided into regencies and cities. Each of these units have lawmaking power. But do provinces have supremacy over their regencies and cities? Does the central government have independent legal relationships with each province, regency, and city, or does Jakarta’s authority stop where the provinces’ begin? And in matters outside of its reserved authority, do national statutes automatically trump regional regulations? Constitutionally speaking, the answer to each of these is somewhere between “no” and “dunno.”
As mentioned, almost every section of the Constitution includes verbiage allowing the national government to “regulate” or “further regulate” an Article’s guarantees. The Constitutional Court has generally interpreted this to mean that the national government has supremacy, but only if the national government gives itself this authority. As such, the DPR has enacted a statute that establishes the hierarchy of laws in Indonesia, placing regional regulations below national statutes. Presumably, the Constitution is flexible enough that if the DPR passed a law giving city regulations supremacy, it would stand. That may sound academic – they would never do this – but if the national government wanted to equalize the authority of provinces and cities because they felt urbanization has put municipalities in a quasi-provincial status, they could, at least in theory. Why would that ever happen? Consider an American parallel: a Democratic Congress essentially elevates mayors, who represent more liberal constituencies, to the status of governors, who represent more conservative constituencies. I might agree that Atlanta deserves power comparable to Wyoming, but you could imagine what this would do to democratic stability, and the flipside – county commissioners controlling Medicaid expansion while mayors are left out – is right around the corner when power changes hands.
These possibilities give rise to bigger questions, namely just what is a “region” in the context of the Indonesian Constitution? The constitutional language confers on provinces, regencies, and cities “regional authority,” but in elaborating on the relationship between national and subnational governments, it refers to “region[s]” as a noun. It is not a translation issue, as Bahasa has different words for these things. In exploring this, it is important to recall the discussion about sovereignty. In the U.S. context, states have sovereignty, and constitutional provisions that give away authority from the federal government allocate it to states, full stop. But in Indonesia, provinces do not have sovereignty. In fact, provinces – and regencies and cities for that matter – are all established by national law. The national government administers its sovereignty, and upholds popular sovereignty, by creating these subdivisions.
So if the United States is constituted by sovereign states, is Indonesia composed purely of sovereign people? Sort of. Reformasi leaders held fast to the notion of a unitary state, but as noted, they could not escape the fact that people come from their communities long before they understand themselves as citizens. The Constitution addresses this, albeit vaguely, by recognizing “regions” and regional differences. My social science background loves this, but my legal training recoils. Regions are not themselves defined or regulated in the Constitution; rather, their “particularities and diversity” are to be taken into consideration by all lawmaking entities. Article 18’s grant of “wide-ranging authority” to provincial, regent, and municipal governments is based in part on the obligation of these governments to secure their region’s interests. What are these interests and what would constitute a violation of them? Ask the Constitutional Court.
The conceptual dilemma of regions is concretized by an additional constitutional provision. Article 18B(1) requires the national government recognize and respect “units of regional authorities that are special and distinct,” and 18B(2) mandates deference to “traditional communities along with their traditional customary rights” so long as these traditions accord with “societal development and the principles of the Unitary State….” Uncertainty abounds!
It is unclear if this is an obligation or a grant of power. It reads like a mandate, and applicants before the Constitutional Court have used it to petition for certain religious and cultural exemptions to national law. But it has also been used by the DPR to settle conflict and ease administrative concerns. There are currently 37 provinces (up from 34 as of July 1), and 8 (maybe) have “special status” or “special region” designation. Equal treatment guarantees in the Constitution prevent the national government from creating provinces that are each unique, but the above language of Article 18(1)-(2) allow for exceptions.
One of these, the province of Jakarta, is more administrative in nature, being that it is the national capital and the second largest metro area on the planet. The others are rooted in culture. The province of Aceh, which fought a quasi-war of independence and suffered from ongoing Islamic terrorism, has been granted the right to employ Shari’a law in criminal law and maintain local political parties (all parties in Indonesia must be “national in nature”; as such, local parties are functionally banned). The province of Yogyakarta, once one of the most consolidated kingdoms in pre-colonial Indonesia, is permitted to have their sultan serve in place of a democratically elected governor.
The remaining 5 special provinces are all located in Papua, and if the constitutional concept of “region” had a definition, it would be for Papua. Located on the island of New Guinea (which is itself divided down the middle into the country of Papua New Guinea in the east and Indonesian Papua in the west), Papua’s connection to Indonesia is fraught at best. The island was split based on deal between the Dutch and British, and Papuans remained within the Indonesian fold due to three main factors: security, economy, and force. In the scramble of independence, Dutch negotiators attempted to grant Papua nationhood, but Indonesian leaders strongly resisted and Papuan communities were unsure if independence was prudent. Since then, Papuans have faced a combination of isolation and neglect. Development from Jakarta has failed to bring most Papuans out of poverty, and Papua’s ethnic and religious differences, not to mention geographic distance, has limited cultural integration.
Until last month, Papua the region was divided into two provinces which often struggled to administer the large landmass rich in natural resources. Indigenous communities have used this governmental inadequacy to their advantage, resisting resource extraction and environmental degradation, often with the tradeoff of poor development. The national government, after years of debate, has upended this arrangement, dividing the two provinces into a total of five.
The DPR and President Jokowi have cited legitimate reasons for this. Two provincial governments is objectively not enough to effectively allocate resources and provide social services, and some Papuan leaders have advocated for increasing the number of provinces to this end. Rising fuel and food prices, coupled with the public health crisis of Covid, underscored how vulnerable Papuans are. But these communities sit on a considerable amount of mineral and oil wealth, and traditional practices are heavily tied to conservative land use. Under current law, new provinces are led by presidentially appointed governors, leading some commentators (and me) to suspect this is a convenient pretext for Jokowi to install friendly administrators that will kickstart his ambitious infrastructure and energy development agenda before regional elections can be held. The new provincial boundaries are also conveniently drawn in ways that advantage current parties in the DPR. An Indonesian gerrymander to be sure.
These moves have fueled the ongoing Papuan independence movement that advocates for the establishment of the new nation of West Papua. Realistically, a breakaway of this sort would likely go the way of Timor Leste, a province that seceded from Indonesia by referendum in 1999 following violent uprising and government repression, leaving Papuans further entrenched in poverty and threatened by other South Pacific powers. Cynical carve-ups like this, however, damage appeals to the West Papua enthusiasts to remain, giving credence to their assertion that unity is merely a slow death.
I would be very interested to know what the Constitutional Court would say to a claim that the national government and their provincial cronies have violated “the principles of regional autonomy” enumerated in the Constitution. If such protections are to mean anything, the Court will need to give them life, and teeth.
Further Considerations
What we’re left with are two conceptions of sovereignty, and flowing from those two beliefs about where authority and power should reside in a constitutional system. Neither the American nor Indonesian system give carte blanche delegations of power to their respective sources of sovereignty, and I think the comparison between the two is apt, given the size and scope of each country. In smaller democracies, like those of Europe, national governments are usually able to administer their nations effectively, but they are generally dealing with smaller land masses and more homogenous populations than the United States and Indonesia. The United States has certainly put more eggs into the federalism basket than basically any other democracy, and I am not short of criticisms that approach, but it is informative to observe Indonesia balance the shortcomings of regionalism with the demands of local autonomy.
To return to where I started, I think U.S. election administration is far too decentralized, and that is largely permitted by the U.S. Constitution. Interestingly, in all of Indonesia’s struggle to optimize decentralization, the national government is expressly required to administer elections through a national body. It does this through the KPU, with a national governing board that oversees thousands of regional KPUs. Indonesians are, of course, not required to visit a central, Jakarta-based election headquarters to register and vote. Election authorities and polling places are as localized as they are in the United States. But their regulations are promulgated at the national level, creating a uniform set of rules and guidance that both administrators and voters must follow. It isn’t formulated this way in the Indonesian Constitution, but functionally, elections are a reserved power for the national government, and the national government has decided to set up regional authorities to carry out this vital process. In the Indonesian model, elections are constitutionally equal to national defense.
Anytime you talk about nationalizing a service in America, you can be sure it will be met with the argument that it will take away power from actual people and cordon it off in some faraway bureaucracy. People who say this – at least the ones arguing in good faith – make the justifiable exception for something like the military or minting coin because there’s no clear need for an average citizen to wake up tomorrow and need to speak with an army general or money printing office. In fact, we rather don’t want too much public access to these institutions, for obvious reasons.
Yet we allow this with one institution that most Americans know and love: post offices. Recent management issues aside, the U.S. Postal Service has been one of the most successful and enduring government functions since the country’s founding. Why? Partly due to a sincere commitment by political leaders, but mainly because Article 1, Section 8 of the Constitution gives the responsibility to Congress. When you read Section 8’s postal provision, wedged between punishing counterfeit money and awarding patent protections, it seems out of place or maybe an afterthought. How can murder be defined differently in each state while post offices are worthy of federal administration?
You can make a pretty decent sovereignty argument here. It is a service that is valuable to every conceivable person and entity in the country, from individuals and local businesses to state governments and international organizations. It promotes popular sovereignty by giving citizens incredible communicative and economic capacity, and it affords sovereign states similar advantages. What’s the best way to secure those benefits for sovereign actors? Give that power to the federal government so each person and state has the most equal access to it. Don’t allow one state that decides to defund its postal service from depriving its citizen of those benefits and limit the sovereignty of other states in the system from engaging with those citizens or that state. Sure, Congress could shortchange the Postal Service, but the people, representatives, and senators from the states form that Congress and can rightly demand improvements.
The Postal Service is a nationally funded function that is administered at the federal level by maintaining a state and local presence for easy access by citizens. Indonesia does the same with elections. Are the two services all that different? Perhaps the United States could take a lesson from Indonesia’s framing of sovereignty to better allocate power within the U.S. system when it comes to subjects that need both uniformity and locality. After all, the two share a bedrock principle: sovereignty is with the people, and sometimes the people are best served by working against our prior conceptions of where authority should reside.