Constitutional Justice Wahiduddin Adams at the opening of a national seminar and MoU signing hosted by the Law Science Program of the Faculty of Social and Political Sciences of Teuku Umar University, Meulaboh, Aceh, Saturday (10/22/2021). Photo by Humas MK/M. Nur.

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Saturday, October 22, 2022 | 18:13 WIB

(MKRI) — Decentralization is intended to provide wider opportunities for regional governments to administer government than the central government. Not all countries call it decentralization; in the UK, a similar concept is called devolution, said Constitutional Justice Wahiduddin Adams at the opening of the national seminar on “Asymmetric Decentralization in Pancasila Law-Based State” and the signing of a memorandum of understanding organized by the Legal Sciences Study Program of the Faculty of Social and Political Sciences of Teuku Umar University (UTU) in Meulaboh, Aceh on Saturday, October 22, 2022.

He explained that decentralization was applied to unitary states and not federations. “The concept of a unitary state is that there is one power that is divided among local governments. To understand it simply, imagine a top-down relationship, from top to bottom. There is one unit of power which is then divided among the regions under it. On the contrary, in a federal state, there are sovereign regions which then merge. This form of merger is called the federal government,” he said before Constitutional Justice Enny Nurbaningsih, Secretary-General M. Guntur Hamzah, and Teuku Umar University rector Ishak.

Therefore, he added, a federal government is formed by united regions. “Because the regions themselves are sovereign, it is more likely to be referred to as a state rather than a regional government,” he explained.

Constitutional Court’s Interpretation

Justice Wahiduddin further explained that the Constitutional Court (MK) had interpreted Article 18 paragraph (1) of the 1945 Constitution, which read, “The Unitary State of the Republic of Indonesia shall be divided into provinces and the provinces shall be divided into districts and cities….” The drafters of the Constitution used the word “divided” and not “comprises” or “consists of.”

In its legal considerations, the Court asserted that the word “divided” indicated that the territory had existed first, then was divided into regions. Meanwhile, the words “comprises” or “consists of” would be the opposite; the regions existed first and then united to form a government. Such a state cannot be called a unitary state but a federal state.

“This consideration is in Decision No. 32/PUU-X/2012 on the judicial review of Law No. 31 of 2003 on the establishment of Lingga Regency in Riau Islands Province,” Justice Wahiduddin said.

Currently, studies on asymmetric decentralization is concerned with granting autonomy to a region through constitutionally-mandated authority to organize its government independently, depending on how much authority is given to the region. Article 18A paragraph (1) of the 1945 Constitution opens up the possibility of asymmetric decentralization. Overall, these provisions state “The relationship of authority between the central government and provincial, regency, and city regional governments, or between provinces, regents, and cities, is stipulated by virtue of law by taking into account the regional specificity and variety.” Justice Wahiduddin emphasized that the phrase “by taking into account the regional specificity and variety” is the constitutional basis that each region that is unique can be given authority asymmetrically from other regions.

In addition, in Article 18A paragraph (1) there are layers of government relations arrangements: (1) between the central government and regional governments (provinces, regents, and cities), and (2) between provincial and regency and city governments. This gap implies that it is possible for asymmetric decentralization not only to occur at the provincial level.

“The policy to implement asymmetric decentralization opens space to accommodate diversity. Each region has its own advantages and disadvantages. By giving space to the regions to set strategies according to their strengths and weaknesses, it is likely that the regions will develop more,” he said.

Thus, the central government’s policies to address problems that occur in the regions are not a one-size-fits-all approach. The same approach could probably be taken by local governments to accommodate differences in communities in smaller forms of government. However, asymmetric decentralization policies do not always tell a rosy picture. There are challenges that must be faced if we implement very diverse policies for each region.

Each region and its own problems will certainly be a problem for the authorities or a higher government to step in to provide assistance in solving the problem. Given the complexity of the problems, strong coordination is needed between the central and regional governments as well between regional government agencies.

In addition, the variety of policies also could potentially cause confusion for citizens, especially nomadic ones. They might question “Why can it be done in this area, but not in that area?” This could result in envy, because they feel they are treated differently.

Challenges of Decentralization

During the seminar, Constitutional Justice Enny Nurbaningsih said the constitutional design of asymmetric decentralization should not be forgotten. “We are very grateful that despite being a nation with a large population with diverse languages, cultures, ethnicities, religions, and beliefs, we can still be united as a unitary state. I don't think there is any country in the world that has been given such blessings as the Unitary State of the Republic of Indonesia (NKRI). So, thank God, we are still united. Hopefully it will continue,” she added.

Autonomy as a Principle

In order to further discuss the specificities and privileges of the area referred to in particular for the special autonomy of Aceh, it is first important to understand the autonomy of regional government and decentralization as the process that determines the operation of this principle. Regional autonomy can only be realized if there is freedom for the regions to organize and manage their own regional affairs.

In line with the inherent characteristics of a unitary state, sovereignty is not divided but only given to the central government and can be partially dispersed to regional governments. The dispersion of state administration and government into smaller territorial units can be realized as territorial autonomy units or territorial de-concentration. The territorial autonomy unit is an independent unit within the unitary state that has the right to take legal action as a legal subject to regulate and manage its own government functions (state administration) or affairs. This its own distribution in the regional government can determine the scope of affairs to be regulated by the autonomous unit.

The distribution of power in various ways still result in unequal power between the central and local governments. The central government is a prominent power in a unitary state, there is no rival from the central legislature in lawmaking. In this case the central government has the highest authority over all fields of government, which at the last level is the authority to decide everything within the country.

The division of power within the state is one of the fundamental principles in a democratic state. However, there is no universal concept of state power-sharing. Not one concept can be mandatory as there are various conditions in each country. Democracies can exercise a variety of power-sharing variations.

Justice Enny said regional autonomy is not only for efficiency and effectiveness. Autonomy is a constitutional order (staatsrechtelijk) related to the foundations and the organizational structure of the state, i.e. a democracy and a state based on law. Without granting autonomy as a principle in administering government, the country cannot be said to be a democracy. There are two elements contained in granting autonomy: (1) assigning tasks as a number of jobs to be completed by the region, (2) granting authority to determine for themselves how the work is completed.

The provision of jobs and the completion of tasks/work by the regions will reduce the burden on the government and provide a sense of regional responsibility to participate in realizing the goals of the state. Various regional social, economic, and political problems require that local governments be able to make political and economic decisions on their own. Immediacy of social-public services is the basis for decentralization. Decision-making that is done directly by the local government will encourage a democratic government system, because there is a division of authority between governments. This is why it is important to establish autonomous regional governments.

Local Political Parties

In her presentation, Justice Enny also said in Aceh Province, asymmetric decentralization is regulated in Law No. 11 of 2006 on the Aceh Government. Law No. 11 of 2006 regulates various matters related to asymmetrical decentralization in Aceh, such as local political parties in Article 75 /2006. Aceh also issued an implementing regulation, Government Regulation (PP) No. 20 of 2007 on Local Political Parties in Aceh.

This specificity must be optimized so that the goals of special autonomy can be achieved. It is necessary to strengthen coordination, assistance, and supervision so that various policies within the framework of Aceh’s special autonomy can accelerate the establishment of specificity. Aceh can also still carry out the widest possible autonomy in accordance with regional needs as the nature of real autonomy is adhered to in Law No. 23 of 2014, as long as this is not excluded.

Affiliation of Local Political Parties with National Political Parties

Justice Enny said there are two types of political parties: national and local. Therefore, No. 20 of 2007 authorizes local political parties to affiliate or cooperate with other local political parties or with national political parties to nominate gubernatorial, regent, and mayoral candidate pairs in Aceh. Such affiliation or cooperation serves to improve the performance of local political parties in its participation in general elections to elect members of the DPRA (Aceh Legislative Council) and DPRK (Aceh Regency Legislative Council). It must be based on an agreement with the other political parties.

Local political party members participate in national general elections is by also being a member of a national political party. This allows them to exercise their right to be elected in national general elections. Of course, dual membership is only possible with written permission from the leadership of the local political party. In addition, for such relations, a harmonious relationship is needed between local parties and national parties.

Signing of MoU

Constitutional Justices Wahiduddin Adams and Enny Nurbaningsih also witnessed the signing of a memorandum of understanding between the Constitutional Court (MK) and Teuku Umar University (UTU) on site, which was performed by UTU rector Ishak and Secretary-General M. Guntur Hamzah. The MoU was aimed at improving the understanding of the citizens’ constitutional rights and the quality of higher legal education. Guntur in his remarks said that the Constitutional Court and Teuku Umar University had been officially connected through an electronic signing. 

“This is the 269th signing by the Constitutional Court, which has reached 100 universities and is the 30th electronic signing,” said Guntur. He also said the MoU was signed electronically to support the government program in digital transformation.

Digital transformation encourages electronic signing of documents. It also encourages the transformation or distribution of electronic documents.

“These electronic documents are authentic, valid, and original. They are authentic or cannot be faked because they have codes on the server. Any falsification of these documents will be found out. They are valid because the Supreme Court has ruled that documents signed electronically and equipped with electronic certificates have the same legal force as those signed manually. The Constitutional Court’s electronic signatures have been certified by the BSSN. Authentic means that these documents can be traced,” said Guntur.

UTU rector Ishak welcomed the constitutional justices. “Today is a very important moment for us. We rarely welcome constitutional justices, who will give a lot of insights, especially to law students,” he said.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 12/13/2022 15:24 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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