THE CONSTITUTIONAL DIMENSIONS OF DECENTRALISATION AND LOCAL SELF-GOVERNMENT IN ASIA




Abstract:

This paper provides an overview of the situation of local government under decentralisation initiatives across Asia It examines the relationship between the constitutionalisation of local government, defined as autonomous local self-government, in these countries, and the extent to which decentralisation has in fact taken place. It finds that there is a strong connection between the extent of decentralisation and the degree to which local government autonomy is established and entrenched constitutionally. It is especially noticeable, however, it concludes, that local democracy is extensively provided for in law, irrespective of whether the national constitution is genuinely or continually democratic, and irrespective of whether the constitution embodies a right to elected local self-government. Consideration is also given to the question of how traditional local government is in the Asian context, and the relationship between decentralisation and the developmental state.





Introduction

Since the early 1990s there has occurred a largely unsung drive towards decentralisation across most of the world, including Asia.[1] In virtually every country, subnational autonomy extending to local government has increased over the last half century, and in many cases this development has been constitutionally sanctioned or mandated.[2] Decentralisation has conferred autonomy on regional or provincial, and (the focus of this study) local government authorities. Democratic elections have proliferated at the subnational level, extending the reach of democracy and constitutional government.

The benefits of decentralisation and empowerment of localities in terms of democratisation of local governance are in general terms these days virtually uncontested, the only questions being how far such a policy should go, with what resources, and what control mechanisms are appropriate in terms of central-local relations and accountability of local authorities. At the very least, as one commentator has put it, ‘local councillors should not be dependent on national politicians for getting windows fixed in city hall’.[3] Democratic legitimacy and also administrative convenience, efficacy and efficiency, figure strongly in the mix of reasons for decentralisation, especially in larger countries. In Asia, I will argue, there are also factors of local identity and culture that exercise traction in the decentralisation project.

Decentralisation has largely been a topic for consideration by political scientists interested in why and how decentralisation occurs, how successful or legitimate it has been, or how it helps in managing issues of ethnic or religious identity;[4] or by public administration and development scholars interested in maximising administrative efficiency and effectiveness, or in fiscal balancing.[5] Legal scholarship has displayed little interest in this phenomenon, despite its constitutional importance in terms of both origins and consequences, and its heavy impact also on administrative law.[6] There is of course a persistent interest in the theory and practice of federalism, which has largely bypassed Asia: east of India, only Malaysia has a formally federal system.[7] More recently the constitutional aspects of asymmetric devolution, which involves special rules for devolved entities, have merited attention;[8] Asia has instances of this (Aceh in Indonesia; Muslim Mindanao in Philippines; Hong Kong and Macao in the PRC). However, consideration of local government in this chapter does not include such geo-political constitutional fixes.[9]

With increasing prosperity and decentralisation in Asia, more and more decisions are taken, and more and more services and programmes are provided, by local governments. These decisions and services are often the ones that most directly affect the lives of citizens. For example, spatial and development planning, the environment, and public health are deeply impacted by local government. Increasingly local governments are even taking responsibility for delivery of previously centralised services such as education, health care, and social welfare.[10] Large cities, which are drivers of all aspects of development save perhaps agriculture, and are also consumers of every aspect of development, have been granted unprecedented autonomy as they have grown in practice beyond their constitutional status as well as their legal boundaries. In Asia the population of some cities exceeds that of many sovereign states across the world. Constitutional or public law has responded by increasingly granting special status to large cities, which often have equivalent power, or even more than that, of provinces, as well as extended boundaries. In 2010 Taiwan recognised five cities other than Taipei as megacities entitled to enhanced powers;[11] Bangkok and Pattaya have special status in Thailand’s local government structure;[12] gubernatorial elections in Jakarta are a matter of national importance;[13] Phnom Penh has in effect swallowed up a neighbouring province;[14] Myanmar has three cities with special status (Naypyidaw, Yangon and Mandalay) having their own development councils and mayors; while the Philippines has created no less than 38 ‘independent cities’.[15]

All this has of course resulted in an intensification of local politics, especially in large cities, and its emergence as a basis for producing national leaders such as Presidents Chen Shui-bian and Ma Ying-jeou of Taiwan (both former Mayors of Taipei), President Lee Myung-bak of South Korea (a former Mayor of Seoul), President Joko Widodo of Indonesia (a former Governor of Jakarta) and Philippines President Rodrigo Duterte (a former Mayor of Davao).

Decentralisation is not confined to large countries like Myanmar, Philippines, and Indonesia: even the small city-states of Singapore (16 town councils)[16] and Hong Kong SAR (18 district councils),[17] have decentralised to some extent. Another very small state, Brunei, which has a population of less than 500,000, is an absolute monarchy virtually without any democratic structures, but still has four administrative districts in which adherence to local tribal customs is allowed, as well as the election of village headmen to act as mediators with the central government, creating a base for village consultation, even if not direct democracy.[18]

In spite of all this local government law (or public law relating to local government) has been almost entirely neglected in Asia.[19] Comparative work has hardly been undertaken at all. The subject of local-government law is not generally taught in law schools in Asia (or indeed for that matter in Western countries, except perhaps Canada and the United States), even though many legal practitioners will spend their careers dealing with issues of local democracy and various forms of public participation; planning law and other spatial or land issues such as compulsory acquisition, transport and infrastructure; licensing; educational rights; and even social issues such as the care of children and the elderly, and public health; and many other important local-government issues that impact immediately, and sometimes drastically, upon the lives of all citizens as well as the local economy.[20] These issues also have constitutional dimensions in terms of territorial governance; division of powers; democracy (electoral rights and freedom of information, for example); good governance (fiscal and policy transparency and accountability); and the role of administrative and judicial dispute-resolution.[21]

In Asia one might expect, and indeed it can be argued, that the state-centric nature of Asia’s dominant-party systems, and its post-war subordination of all sources of power to the overriding objective of development, characteristic of the Asian developmental state, make local government and its law a matter of small detail.[22] This study will, to the contrary, show that in Asia democratic local self-government has proceeded almost everywhere irrespective of the developmental state. Indeed local self-government under decentralisation calls into question whether the Asian developmental state is even still a relevant concept. Since the early 1990s state after state in Asia has decentralised decision-making and service-delivery in ways that have probably contributed significantly to political and economic development.[23] Democracy and good governance cannot fail to have impacted in some ways on constitutional government and democracy as a national way of life. Cities in particular have grown to be powerful agents impacting internationally as well as on national political systems.[24] Local government everywhere has galvanised local development and local initiative. Indeed, as Eslava puts it, decentralisation ‘has been the official channel through which local jurisdictions have been transformed into the new foci of development’.[25]

At the same time it does need to be recognised that in Asia from the 1950s political power and administrative capacity were centralised to a great degree in pursuit of development goals. Asian developmental states (as they were dubbed by Chalmers Johnson and Alice Amsden), centralised power especially during the 1960s, 1970s and 1980s.[26] These states were lauded by the World Bank in 1993 for having done so.[27] As Kevin Tan argues, states need to acquire power before they can create development; this idea fits with the traditional Asian culture of respect for, as opposed to distrust of, government.[28] For many indeed the Asian developmental state is still with us. But it is nonetheless little recognised that in more recent times these developmental states, looked at from the aspect of territorial governance, have been disaggregated to a surprising extent in a trend that contradicts the prevailing narrative of centralisation.[29] This aspect of state development seems to have been little noticed or examined in constitutional terms.

We will see also that decentralisation has contributed to nation-building in Asia by allowing voice, expression and continuity to local identities, which proliferate as deep elements of culture amongst Asia’s teeming and extremely diverse populations.[30] One objective of local government in addition to the generally well-understood objectives globally - or at least one outcome of decentralisation in Asia - has been to provide a signal opportunity for local difference, whether ethnic, cultural or religious, to be expressed through the exercise of local autonomy. A striking example of this is the nagari of West Sumatra, the revival of which, along with accompanying local customary (adat) traditions is an outcome (even if not specifically intended) of Indonesian decentralisation.[31] Another example is Mongolia’s bag, which are the state’s way of providing for recognition and administration of nomadic communities: a phenomenon further from the conventional Western concept of local government can hardly be imagined. Similarly, Thailand’s decentralisation process since 1997 has emphasised the preservation of the customs and way of life of ‘traditional communities’; these are recognised as constitutional rights (and duties) in successive constitutions.[32]

Asia has suffered the downsides as well as the upsides of development. Rapid development leads to a greater disparity between rural and urban areas, despite the overall increase in prosperity, creating political tensions that can be seen most obviously in Thailand,[33] but seem to be present in some form almost everywhere. The common Asian phenomenon of the flight from rural to urban areas leaves many urbanites with insecure economic or even legal status in cities, leading to pressing social issues in both rural and urban areas; urban authorities in particular have difficulty responding to this need and are often in conflict with the centre.

These factors, contributing as they do to the push for decentralisation, actually pose an analytical difficulty. If the developmental states have ruthlessly centralised power in the interests of rapid development, as is argued by those who advance their claims to success, why is it that these same states have in the last three decades decentralised power to the extent that they have, without significant retraction, and apparently no differently to other parts of the world? It is of course more than just a linguistic point that decentralisation requires centralisation as a precondition. Asia has in general experienced progressive centralisation of power throughout its history, and in some measure the recent decentralisation appears to be a reaction to hyper-centralisation in the decades following World War II, Indonesia being a striking example of this.[34] Decentralisation is in fact a process that requires considerable political will, vertical mobilisation, and devotion of resources at the centre and also spreading downwards from the centre to the locality; it requires in short that powerful central agencies give up some of their power. We will see that decentralisation has not in general been a matter of central agencies being forced to surrender power to ambitious local players. Nor has it happened in a fit of absent-mindedness. Rather it has been a top-down enterprise that represents a considerable and deliberate disaggregation of Asia’s developmental states since the early 1990s. Table 1 shows that in most cases decentralisation in Asia commenced during that decade. We may therefore see this development as part of Asia’s democratisation process following the end of the cold war.

In this article I do not attempt to investigate all of these issues, or provide final proof of the propositions stated, which go somewhat beyond the reach of constitutional study. My purpose is rather to try to answer three related questions about this process of decentralisation.

The first is, does Asian decentralisation reflect in any way traditional, pre-modern forms of local governance, or are they simply modern standardised agencies imposed territorially? To put this another way, are local authorities ‘organic’ (evolving out of traditional forms of local governance) or ‘administrative’ (conforming to a centrally-conceived framework)?

Secondly, does constitutional law in Asia provide for decentralisation in the form of something like a right to local self-government, embodying entrenched existence and/ or development of autonomous local powers and democratic processes? And, to be clear, I am not concerned here with central government agencies operating locally, or with local agencies implementing centrally-determined policies, but only with democratically elected, autonomous, local self-government. For the sake of concentration of the argument and the evidence, I exclude the one-party socialist states (the PRC, Vietnam, Laos and North Korea), although here too one can find a surprising amount of genuine devolution of powers as a result of reform processes in recent decades.[35] I am concerned principally with cities and the lower, sub-provincial or sub-regional, forms of local government.

Thirdly, and following from these two questions, how is the relationship between local government and the centre provided for constitutionally or statutorily? Are local governments subject to having their powers taken away in certain circumstances?



The historical record: How traditional is local government in Asia?

In this section we look briefly at the history of local government in Asia and ask the question, is Asian local government organic or administrative?

Although we tend to think of local government as organised and controlled from the centre in a kind of cautiously retractable beneficence, it is well to remember that modern constitutionalism in the West grew out of local government, not the other way round. In the West democracy itself started as an urban phenomenon; in Europe cities were generally democratic and often quite autonomous in some respects both in the ancient world and in the medieval period. Standardisation of local government in England, for example, was only achieved in the late 19th century.[36] In Asia on the other hand local government has largely been directed from the centre, and state-building has been in the main a matter of conquest of smaller kingdoms by larger ones. The concept of the state tended towards the idea of a centre radiating influence outwards in concentric circles of progressively diminishing influence; this is the galactic state formed in the shape of a mandala.[37] In Japan the modern state emerged only in the last 150 years, and in South Korea and Taiwan even more recently. The Meiji government abolished traditional local daimyo-ruled castled domains and created new administrative local governments on a standard pattern. Since the 1946 Constitution local governments have been elected and autonomous. This approach characterises much of Asian local government as we see it now. Table 1 indicates that Asian local government is highly articulated, sometimes at several levels and with local elections almost everywhere.[38]

To the extent that Asian local government has been anything other than the assertion of central power locally it was really villages, the face-to-face communities, that counter-balanced the impersonal state, acting as a focus for clan-based resistance and local identity, rather than for deliberate decentralisation.[39] This tendency of village resistance has continued somewhat into the modern era.[40] Colonialism, continuing and reinforcing the trend of centralisation, generally suppressed, or tried to suppress, localism, or tolerated it only by necessity or as a fa├žade of indirect rule.[41] In British-ruled territories in the 20th century local government was usually organised by the colonial administration, and was often then used as a sandpit for developing national democracy prior to the granting of independence.[42] In the Dutch East Indies in the early 20th century there was deliberate attempt at modest decentralisation to urban municipalities, but these were defined on the Dutch pattern rather than relying on the existing forms of village - desa or kampong. To this extent they were administrative rather than organic – described indeed by Van Vollenhoven as Western enclaves in an Eastern society’.[43]



Insofar as there are typically or uniquely Asian types of local government, these are probably therefore more likely to be found at the level of villages rather than at the level of larger subnational units. Asia does not in general have anything quite like India’s panchayat republics, which were deliberately promoted as an indigenous form of governance during decolonisation,[44] but it does have a traditional concept of village government, as in the case of Vietnam’s huong uoc (or village laws/ contracts),[45] the barangay of the Philippines,[46] Malaysia’s mukim, Thailand’s tambon, Java’s desa, and West Sumatra’s nagari. In this last case the von Benda-Beckmanns have shown how decentralisation has resulted in a strong revival of these traditional local-government units since 1999.[47] This is an example of survival of organic local government (nagari) resisting the standardisation inherent in the administrative variety (desa) imposed from the centre.[48] Village governance has not yet been the subject of any concerted comparative study in Asia so far, but largely these traditionally-named units with their traditionally-named officials and (sometimes) deliberative councils or consultative mechanisms, seem to function practically as administrative units within the overall democratic structure of governance rather than continuing in operation traditional or pre-modern forms of local government in a new constitutional setting. The nagari appear to be an exception, representing both a rebellion against the standardisation (termed desa-fication[49]) inherent in the Indonesian decentralisation project, and an expression of unique Minangkabau adat-based culture. Interestingly enough, although the 2014 Village Law allows villages to become adat villages, few outside West Sumatra have actually done so.[50]

Where traditional culture does normally come into the picture is in the use of local autonomy and community rights to preserve such culture and identity (as in Indonesia, above, and Thailand, below). In the tension between the impersonal state and local identity, this use of local autonomy is surely in Asia one of the major purposes of having autonomy.

In Burma, as in India, the British attempted to use the village as a basis for administration, and the village head as a mediational device. Furnivall writes of Burmese resistance in the face of British attempts to convert traditional, organic villages with their own headmen into constitutionalised, administrative units. The administrative system was not based on what was naturally there, but rather attempted to distort it into something suited to the needs of administration rather than the expression of custom and tradition.[51]

In Asian states state-building was of course necessarily to some extent achieved at the cost of local autonomy. In pre-modern Thailand, for example, the Siamese state that ultimately modernised the country during the Bangkok period was constructed out of small kingdoms (mo’an) corresponding to modern provinces. Since the prevailing historical narrative is one of gradual centralisation of power, eventually embracing the Malay provinces in the South and the Lanna kingdom in the North, there was nothing corresponding to modern local self-government. However, the detailed 1727 Edict on the Method of Provincial Administration embodies ideals of good governance, a response to rapacious ambitions of provincial governors. It ensures that the governor report to the King regularly on all relevant matters; that he must not take local women for wives or servants without their parents’ consent; not sit in judgment without being accompanied by a legal officer; and generally to exercise powers for the peace of the district and the happiness of the people.[52] The accretion of power at the centre has now had to be balanced by decentralising reforms, not just in the interests of efficient decision-making, but to preserve identity, customs, and culture in a  diverse country.[53]

In this section I have nuanced the idea of traditional Asian local government as entirely state-directed. We now move to the next question: what is the constitutional status now of local government in Asia?



Local self-government in constitutional law



In this section I explore the extent to which local government is a subject of constitutional law, as opposed to ordinary legislation. Most constitutions in Asia recognise the existence of, and necessity for, local government as an aspect of territorial governance. It is indeed striking that constitutions often, after saying that the country is ‘indivisible’, then proceed to explain how it is divided, without explaining how these two ideas are supposed to coexist.[54] The question here is whether local self-government is entrenched in the constitution, and whether there is a right to elected local representation. Local government may be seen as either a convenient way of implementing national policy at the local level, or as a means whereby localities can decide and prioritise according to their own needs and wishes. The concept of local self-government indicates a form of local government corresponding with the latter as opposed to the former perspective.

We can recognise here two broad types of case. Either local government is essentially statutory in nature, or it is constitutionally entrenched.

i)                Local government regulated by statute

In the first case, local government is either not recognised at all, or is mentioned only as a subject for legislation. Even this limited entrenchment is at least recognition that local government has some kind of constitutional status.

Cambodia

An example of this is Cambodia.[55] Articles 126-7 of the 1993 Constitution provide that Cambodia shall be divided into provinces (khett) and municipalities; that provinces shall be divided into districts (srok) and districts into communes (khum); that municipalities shall be divided into districts (khan and sangkat); and that all of these shall be governed in accordance with organic law. These provisions leave the power to delineate local governments, their powers and their governance, and central-local relations, to central legislation. However, they have not in fact prevented an attempt to decentralise power since the 1993 Constitution came into effect, starting with the government’s Seila project, supported by UNDP’s Cambodian Area Rehabilitation and Regeneration 2 project in 1996[56] - but this is not, precisely, constitutionally mandated. Similarly, South Korea’s constitution at Articles 117-18 recognises local government and assumes there are elected local councils; but the details are left to organic law.

Malaysia

In Malaysia local government is a state function and is recognised by the Federal Constitution in a number of respects. The Constitution provides for a National Council on Local Government, and allows the federation to enact legislation on local government for the sake of uniformity, which it has done.[57] However, there is no right to local democracy and in fact local-government elections were suspended as an emergency measure in 1965 and then abolished on a permanent footing in 1976. The demand for restoration of local-government elections is nonetheless persistent, and a legal framework exists, in spite of the abolition of elections, for holding elections whenever they are reintroduced, even if for the moment it is not legally possible to use this framework.[58] As matters rest, local-authority members are appointed by state governments, while the federal government appoints the Datuk Bandar (Mayor) of the Federal Territory of Kuala Lumpur. An attempt to execute local quasi-elections in the state of Penang by consulting the electorate on local-government appointments was ruled unlawful by the courts.[59] The new PH government, elected on 9 May 2018, has announced the restoration of local elections in two states within three years, prompting calls for earlier and more widespread holding of local elections.[60]



Myanmar

Myanmar’s 2008 Constitution provides for elected state and regional assemblies.[61] Myanmar has altogether no less than six levels of government (see Table 1). The states and regions, of which there are seven in each category, have similar status to each other as well as to the union territory of Naypyidaw, five Self-Administered Zones, and the single Self-Administered Division.[62] States are defined by ethnicity, or the ‘national races’ in Myanmar discourse, whereas regions comprise the Burman ethnic majority.[63] Each state/ region is divided into districts; under these are the townships; wards and village tracts are at the next level, followed by villages at the lowest level. All of these are recognised by the constitution.[64] Townships form the basis of representation in the lower house, while states and regions form the basis of representation in the upper house, rendering Myanmar similar in some respects to a federal state.[65] Of these local entities only the states and regions, however, have their own elected governments and assemblies. The entities at the lower levels are administered from the centre by the powerful General Administration Department (GAD), which falls under the Ministry of Home Affairs. However, the boundaries of a township cannot be altered without the consent of a majority of its electors.[66] Three or more adjoining townships were allowed as part of the 2008 constitutional process to join together to form a Self-Administered Zone based on their common ethnicity (different from that of the state/ region in which the townships are situated).[67] This is a form of ethnic-minority-identity management to deal with ethnic enclaves.

In 2012, during the government of President U Thein Sein (2011-16) indirect elections for ward and village tract officials were introduced,[68] but there is a widespread felt need for local-government reform that would make it more democratic and more effective. This is just one of many governance challenges Myanmar faces, which include reform of the GAD itself.[69] The future nature of local government is in doubt at the present time as the shape of the union itself is debated amongst the national races.

These examples are typical in delegating to organic law the detailed powers and modes of governance for local government; and in refraining from establishing a citizen’s constitutional right to elected representation in autonomous local governments. This does not mean that such rights do not exist as a matter of ordinary law, but the examples of Malaysia and Myanmar show that in the absence of a constitutional right to elect local representatives, there is a real danger that such right will not be granted, or once granted may be withdrawn.

We can, however, look at some examples which indicate the second type of approach in which there is a constitutional right to elected local self-government.

ii)              The right to elected local self-government

Philippines

The Philippines has historically been a decentralised state, due to a combination of factors. Hutchcroft contrasts the ‘centralising ethos’ of Thailand’s prefectural reforms in the late 19th century with the lack of any such history in the Philippines.[70] A combination of a political culture of localism and deliberate policy during the period of American rule (1898-1946) ensured that local self-government along the Jeffersonian pattern was entrenched even before national democracy came about. The Philippines was one of the earliest states to engage in decentralisation, with US-facilitated projects in the 1960s. During the post-Marcos period (1986 to date) there was a strong debate and political emphasis on the idea of local government reform as an antidote to the Marcos period’s centralisation of power.[71] This developed into ‘one of the world’s most ambitious decentralising initiatives’.[72] After much debate the congress passed the Local Government Code, one of the most far-reaching and impressive local-government codes in the world. The Philippines Constitution of 1987 therefore takes local government very seriously as an entrenched constitutional subject. Article X entrenches local autonomy and allows local authorities to create their own sources of revenue subject to limitations ‘consistent with the basic policy of local autonomy’. It requires[73] a local government code (in fact enacted by Congress in 1991[74])

which shall provide for a more responsive and accountable local government structure instituted through a system of decentralisation with effective mechanisms of recall, initiative, and referendum, [and] allocate among the different local government units their powers, responsibilities, and resources.

Of special interest in view of the ubiquitous problem of local government finance, is s.7 of Article X:

Local governments shall be entitled to an equitable share in the proceeds of the utilisation and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits.[75]

The existence of these local authorities and the preservation of their boundaries are also protected by a local-plebiscite requirement in respect of any proposed changes. Local authorities are empowered to ‘group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them’. And the President is required to

provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region.

Thus the Philippines’ Constitution in effect recognises a right to the continuous existence of local authorities, to local autonomy in terms of powers and finance, and to a supportive and developmental national policy on local government. Currently there are proposals to convert the Republic into a federation. Each of the proposed models would render the Republic even more decentralised than it already is; but it is not clear how this development, if it comes to pass, will affect local government.[76]

Thailand

Unlike the Philippines Thailand has historically been highly centralised as a prefectural state since the late 19th century, when Bangkok asserted its power over the Lanna Kingdom in the North and the Malay provinces in the South.[77] However, neither this predisposition nor the oscillation between military and civilian government that has continued since the end of the absolute monarchy in 1932 has interfered with a process, under the recent successive democratic constitutions (1997, 2007, 2017), of progressively decentralising powers and providing for local democracy at every level. This process contributes to nation-building in two ways.

First, it encourages the practice of democracy under the Thai mantra of ‘the democratic regime with the King as head of state’.[78] The development of local government (and also provincial government) is indeed a state duty,[79] the process for fulfilling which has been continuously implemented since the enactment of the Decentralisation Plan and Process Act 1999. This development of local government involves electoral democracy[80] as well as what the current Thai Constitution of 2017 prescribes as local autonomy in the form of ‘self-government according to the will of the people in the locality’.[81] It also embraces democratic participation and freedom of information, with an emphasis on utilities and services.

Secondly, the 2017 Constitution specifically provides for the preservation of local communities, heritage, cultures and customs, which is a particularly important factor in the most ethnically diverse areas of Asia such as Northern Thailand. This is expressed as both a democratic right of local communities, and as a duty of both state and citizens.[82]

Thailand too has a complex and democratic system of provincial and local government (see Table 1). The functions exercised by these different types of authority are typical in that they include matters close to the land and the environment.[83] What is slightly unusual in Thailand is the power to provide social welfare; health services are provided nationally, but welfare is a local function in the absence of any national scheme. Development coordination is a function of provinces. All levels of provincial and local government are elected. Even tiny villages (mooban) elect two representatives to the local tambon as well as their own village heads (kamnan), from whose number the tambon head is elected. In practice the restrictions placed on how local authorities can spend their limited revenue, as elsewhere in Asia, prevent local government from being truly autonomous in practice. Local budgets, for example, must be approved by the provincial governor. Local authorities are dependent on higher levels of government even though most of their funding is raised locally. Central government grants are tied to specific programmes and are for the most part dispensed in a politicised and unsystematic manner.[84] Despite the problems in consolidating viable democracy at the national level, the everyday practice of the ‘democratic regime’ in Thailand, with its regular, tiered elections and frequent public hearings, is clearly consolidated at the local level. This process began with the ‘people’s constitution’ of 1997, and has continued in spite of military rule in 2006-8 and 2014 to date.[85]

Indonesia

Indonesia represents the clearest case of decentralisation as an urgent political necessity to disaggregate an oppressively centralised developmental, but also corrupt, state. In addition, the danger, as it was seen in 1999, of the Republic breaking into several units needed to be averted not just by decentralisation, but by deep and democratic decentralisation to regencies and cities at the level below provinces. In the result, after almost 20 years of this process, provinces, regencies, cities, counties and villages have all gained enhanced powers and all elect their leaders. Decentralisation must be judged a success in terms of its objectives, despite the fact that not all has gone smoothly or successfully.[86]

Two laws passed in 1999, the Regional Autonomy Law and the Fiscal Balancing Law, which commenced the process, were provided for constitutionally to ensure their entrenchment, and this was done in the 2000 amendment to the Indonesian Constitution, providing Articles 18, 18A, and 18B.[87] Under these provisions new Regional Autonomy and Fiscal Balancing Laws were also enacted in 2004, returning some powers to the centre in a modest form of recentralisation. It is clear from these Articles that in Indonesia there is a clear constitutional right to democratic local self-government. Under Art.18 Indonesia is divided into provinces which are in turn divided into regencies and cities (see Table 1). All of these entities are guaranteed the wide-ranging autonomy of their governments, under elected leadership, and have their own elected representative bodies and legislative powers. The relative powers of central, provincial, regency, and city governments are regulated by law with due regard to ‘regional uniqueness and diversity’. In a country with more than 300 officially identified ethnic groups, six official religions, and more than 17,000 islands, this reference to uniqueness and diversity is no mere constitutional verbiage. The diversity is further recognised by provision in Article 18B that the state (as is the case in Thailand) recognises and respects adat law communities and their traditional rights. Village governments are not constitutionally entrenched but are provided by statute; even they have elected heads, deliberation boards (whose members are selected by traditional deliberation and consensus rather than election), and powers, including legislative powers, over their ‘hak asal-usul desa’ (village customary and original rights).[88]

The reforms did not stop there. A new assembly of regional representatives was created (the Dewan Perwakilan Daerah or Assembly of Regional Representatives: DPD) to ensure specific representation of regions in the legislative process. These representatives are also members of the upper house (the Majelis Permusyawaratan Rakyat, or People’s Consultative Assembly), which comprises also the members of the lower house (Dewan Perwakilan Rakyat, or Assembly of People’s Representatives: DPR). Although the DPD does not have power to make its own laws, it is able to provide input into the legislative process and present bills to the DPR.[89] Local elections falls under the Election Commission and local electoral disputes, of which there have been many, are dealt with by the Constitutional Court.[90]

Opinions vary as to the success of Indonesia’s decentralisation efforts. Initially some confusion reigned as decentralisation started to occur in advance of legal and constitutional provision. If we are to judge by the criterion of enhanced democratisation, the reforms have been successful. A similar judgment is warranted if we look at the outcome in terms of maintaining the integrity of this very diverse republic. Local initiative has been enhanced and local identity given an opportunity for expression. Aceh has achieved a significant measure of autonomy under its Law on Special Autonomy for Aceh 2001. In West Sumatra decentralisation has, to the surprise of many and the delight of the Minangkabau people of the province, resulted in the revival of its traditional customary (adat perpatih) laws and offices, as well as a revival of the pre-colonial nagari, which had been suppressed during the new order period by the imposition of administrative village governments (desa).[91] Bali with its traditional Hindu culture has also managed to retain its distinctiveness via decentralisation.[92]

Lindsey and Butt conclude that the 1999 Law on Regional Government ‘radically reconfigured the Indonesian polity, transforming it from one of the world’s most authoritarian and centralised to one of its most democratic and decentralised’.[93] The best way of indicating the enormous breadth of decentralised powers is to list the powers reserved to central government (the rest remain with regional governments): foreign affairs, defence, security, judicial affairs, monetary and fiscal policy, and religion.[94]

Overall, Indonesia’s decentralisation has not been perfectly implemented or realised, and can be criticised for allowing many opportunities for local corruption. Corruption is, however, a national, not just a local, problem.[95] And given the dire predictions in the late 1990s of Indonesia’s imminent fragmentation, not to mention the demise of its young democracy, decentralisation must be seen largely as a considerable success.

Taiwan

Since Taiwan embarked on its transition to a multi-party democratic system, there has been a parallel development of local self-government. Although this process can be said to have started in 1954 with the Outline for the Implementation of Local Self-Government in Every City and County of Taiwan, local self-government was, according to Yeh Jiunn-rong, ‘make-believe’, due to Kuomintang manipulation of local elections, despite an expansion of local autonomy in the 1960s. This changed with Taiwan’s democratic transition from 1990.[96] In 1990 the Council of Grand Justices (now Constitutional Court) in JY Interpretation No 260 held that local governments had no power under the Constitution to legislate. This problem was resolved by a constitutional amendment in 1992, creating Additional Article 8 of the ROC Constitution, which guarantees both legislative power and a right to elected (in place of appointed) local governments. This was implemented by the Self-Governance Act for Provinces[97] and Counties, and the Self-Governance Act for Special Municipalities, both passed in 1994, swiftly followed by the first local elections of Governors and Mayors in December 1994. A further statute, the Local Government System Act 1999, and the upgrading of five cities to special municipality status under revisions to the 1999 Act, completed the present system of local government, which includes special local-government areas for indigenous people. It is noteworthy in this story that the first party created in opposition to the Kuomintang, the DPP, was created in 1986 at the cusp of democratic change, and gained its first victories in local elections. Mayoral elections, especially in Taipei, have proved a major arena for party politics in Taiwan, and conflict between central and local governments has been mediated by the Constitutional Court.[98]

These examples indicate that in many parts of Asia democratically elected and centrally supported local government is well entrenched constitutionally. Indeed it might well not be an exaggeration to say that in such instances local democracy is as deeply entrenched as national democracy.

The question then arises, how does local government relate to central government? To this we now turn.



Central-local relations

The question of central-local relations comes down to the question, what powers does central government have to control local governments, and how or when are those powers exercised?

One would expect that in a system of central-local relations there will be circumstances, albeit exceptional ones, in which central government (or the administration immediately above local government, as the case may be) can take over the functions and operation of a local government, or can direct it to take or refrain from particular actions. Such reserve powers, where they exist, are necessarily limited to special circumstances such as extreme mismanagement or dereliction of duty, and are therefore not suitable for exercising routine or continuing control over local government in general, although they do set some limits to local autonomy. Matsui, for example, studying the Fukushima incident in Japan, finds both that Japan’s central government had too little power to act decisively in an emergency, and that local governments had too little power to orchestrate recovery after the emergency was over.[99]

What is quite striking in the case of Asian states is the absence of such oversight provisions in the law or the constitution. In those systems where local autonomy is guaranteed constitutionally, such reserve powers are indeed rare. Indonesia’s Law on Regional Autonomy of 2004, for example, provides for the abolition or merger of a regency (not for it being taken over) if it is unable to implement regional autonomy.[100] Regency heads are directly elected and can only be dismissed by the regional assembly via a tortuous procedure: dismissal is only available for violation of the oath of office or failure to fulfil duties, if the assembly passes a motion supported by at least two thirds of those present who must be at least three quarters of the total membership. Even then the assembly must refer its decision to the Supreme Court, which must examine and try the matter within 30 days; if the Supreme Court approves the decision the assembly must make another decision (under similar conditions to the decision to refer to the Supreme Court) to refer the matter to the President, who must then dismiss the person within 30 days.[101] This does not apply to the commission of serious criminal offences, where dismissal may simply be effected by the President.[102]

Of course there are other means of controlling local government. Finance is a perennial problem for local government almost everywhere, and naturally the impact of the exercise of local-authority powers will be limited in practice if there is inadequate funding. Local governments therefore tend to find imaginative ways of raising money. Indonesia’s decentralisation has been particularly problematical in this respect, but illustrates how central government can place some control on both legislation and finance. The central government has power[103] to invalidate local by-laws (Perda) on grounds of being contrary to the public interest or higher law. This power has been extensively employed, despite the fact that the government has only 60 days to review such laws, failing which they continue in force and the power of invalidation is lost.  Out of 15,000 Perda 951 were invalidated by this process during 2009-12. As one would expect the most common issue here has been by-laws designed to raise local revenue by local taxes and levies in ways that contradict central revenue streams. Apart from this, the Supreme Court has power to invalidate local legislation on grounds of being contrary to higher law or because its enactment violated legislative procedure.[104]

Even so, there seems to be little evidence across Asia of any deliberate tightening of purse-strings as a means of rolling back local-government powers. Indeed it may well be that such methods would be found to be an unconstitutional undermining of local autonomy. As we have seen above, in the Philippines local government’s fiscal autonomy is constitutionally protected by its entitlement to an equitable share in the proceeds of the utilisation and development of the national wealth within the local governments’ respective areas. In Indonesia there is a separate law on Fiscal Balancing that ensures that central government treats local governments fairly in this regard.[105] To the extent that there has been a roll-back of regional government’s power in Indonesia following decentralisation this has, under the revised law of 2004, taken the form of giving more powers to provinces, including supervisory powers over regency governments, and to act in effect as agents of central government. Arguably the problem was not so much the difficulties with decentralising power to regency governments, as such, which was done to outflank separatist tendencies in some of the provinces; it was rather that provinces had been unreasonably restricted in their decision-making capacity.[106] Perceiving local-government power as essentially legislative in nature has the consequence that control over local governments’ power is seen as essentially control over legislation; this system has created some confusion in Indonesia over the validity of local by-laws, which have been enacted profusely over the last 20 years. Administrative decisions by local governments, as all administrative decisions, can be reviewed by the administrative courts;[107] but this is a system for citizen control, rather than central control, over local governments. The comparative lack of effective administrative mechanisms to call-in or reverse local decisions seems to be attributable to the constitutional entrenchment of local-government autonomy. The overall picture is one of considerable legal uncertainty even 20 years after the commencement of reforms. Yet it cannot be denied that the outcome is one of considerable autonomy for local governments in practice.

In the Philippines the Code deals extensively with ‘inter-governmental relations’. Although the President exercises supervisory powers over local governments, this has to be exercised through the relevant intermediate government, and is confined to keeping local governments within their powers, rather than calling in their decisions. Intermediate governments have their own supervisory powers, but these again are confined to ensuring lower levels of local government act within their powers.[108] In coordination efforts local governments must be allowed to participate in planning and implementation. They can request the President to order fiscal and other assistance to them.[109] Again, the outcome is one that exemplifies local government autonomy.

Taiwan’s case is described by Yeh as one of ‘hybrid and dynamic transitional federalism’, where local-government elections were the basis for the emergence of a multi-party system. Progressive empowerment of local governments therefore renders jejune the legitimacy of the centre simply retaking control. Conflicts between local and central governments have indeed been fierce, given a usual situation of political-party antagonism. In two notable cases, the National Health Insurance and Local Elections cases[110] the Constitutional Court has acted as the arbiter, in both cases crafting a solution designed to lower the political temperature rather than simply endorsing the central government’s position.

Where local-government autonomy is entrenched constitutionally we have seen that it becomes difficult for central government, short of using drastic emergency powers, which would be highly inappropriate in most situations, to exercise real control over local governments. Central governments are thus usually reduced to invoking legal rather than administrative process if they wish to control or reverse local governments or oust local- government leaders. Where local government is provided for statutorily, on the other hand, the extent of local-government autonomy is obviously one for the national legislature to decide free of constitutional restraint. But again what is quite surprising is that there appears to have been no serious attempt to roll back or exercise greater control over local-government powers. Malaysia is obviously an exception here, having moved from strong elected city governments 1953-1965 to emasculation post-1965. Even this position is now, as we have seen, in the process of being reversed. At the root of the narrative of local government’s increasing autonomy is the fact that these governments, across almost all of Asia, are elected and locally accountable. They enjoy a legitimacy that makes concerted control from the centre virtually impossible short of cases of glaring corruption or jurisdictional illegality.



Analysis and Conclusion

Our knowledge of the constitutional functioning of local government in Asia is still quite limited. There are few studies comparing the legal structure with its real-life operation. This is a vast and complex topic with many implications for national constitutionalism as well as central-local relations and governance at the increasingly important levels of local decision-making and service-delivery. What is especially noticeable from this brief study is that local democracy is extensively provided for in law, irrespective of whether the national constitution is genuinely or continually democratic, and irrespective of whether the constitution embodies a right to elected local self-government. In all the cases considered here (see Table 1) democratically elected bodies exist sub-nationally at least at one level, and in most cases at more than one level.[111] There is, as it turns out, a remarkable degree of uniformity in local government across Asia, despite the obvious differences in the region’s political systems, which provide examples of multi-party democracy, military government, and dominant-party systems.

Local government is a fruitful area for both research and policy development. Asia has much to offer in terms of solutions to the problems of a plural society and the need for local autonomy. In this field we have seen that expression of local culture is an element of this need. However, the pressures that tug the political system and administration towards decentralisation are in other respects probably little different from other parts of the world. The practice of democratic values of election, accountability, integrity, freedom of information, and public participation, needs to be entrenched at the local level as a way of life; and to a large extent this has in fact been provided for. Everyday observance of these principles is not only desirable in itself, but also helps to entrench these same principles at the national level. This is a process that may be observed all across Asia; yet it is little realised how important local government can be in moving it forward.

From the brief survey of local government in Asia in this article the main conclusion is that decentralisation in the form of entrenched local government autonomy has been provided for, and appears to contradict the Asian developmental state’s assumption that centralisation of power is the route to successful development. Whether one considers that decentralisation has occurred during and in spite of the ascendancy of the Asian developmental state is largely a question of whether one considers that state to be still in evidence or merely a historical description. My own view is that the state has not ceased to be interested in development, but there is evolution in how it sees development, how it implements development, and how it responds constitutionally to the changed conditions of decentralisation. Indonesia is a striking example of this. In Supomo’s ‘integralist state’ the idea of autonomous local self-government would seem to be a complete contradiction of such conception of the state. Yet the sea-change of 1998 rapidly ushered in a period of intense and ultimately deep and probably irreversible decentralisation. The Philippines Local Government Code of 1991 is also a deeply impressive piece of legislation containing many innovative provisions. Decentralisation has not proved to be an inoculation against further dismemberment of the Philippine state, but has on the contrary led to further demands for decentralisation in the form of federalisation.

It is striking that in almost all cases across Asia decentralisation began in earnest during the 1990s (see Table 1), at the height of globalisation and after the end of the cold war. That process was by no means limited to a brief moment in history; on the contrary it has advanced with more decentralisation and finding a better balance of powers between the centre and the locality. Local self-government in Asia is now not just a useful development strategy but has become a defining, constitutionally entrenched, fact of democratic existence.




TABLE: SUBNATIONAL GOVERNMENT IN ASIA[112]

NB. “MUNIC” = Municipality

COUNTRY
LEVEL 1
LEVEL 2
LEVEL 3
LEVEL 4
DECENTR-ALISATION
ENTRENCHED
LOCAL ELECTIONAT LEVEL
BRUNEI
DISTRICT (4)
SUB-DISTRICT (38)
MUNIC (4)
MUNIC (11)
VILLAGE (329)
HISTORIC
YES
4
CAMBODIA
PROVINCE (24)/ MUNIC (1)
DISTRICT (121)
COMMUNE (1609)
VILLAGE (13,406)
1996
NO
1,2,3
HONG KONG SAR
DISTRICT (18)
-
-
-
1999
NO
1
INDONESIA
PROVINCE (34)
REGENCY/ CITY (508)
DISTRICTS (6,543)
VILLAGE (83,000+)
1999
YES
1,2,3,4
JAPAN
PREFECTURE (47)
CITY (790)
TOWN (745)
VILLAGE (183)
1947/ 1999
YES
1,2,3,4
KOREA S
PROVINCE (9), CITY (8)
CITY/ COUNTY/ DISTRICT (263)
TOWN, NEIGHB’D (3,487)
VILLAGE (?)
1999
NO
1,2,3
MALAYSIA
STATE (13)
CITY (12), MUNIC (39)
DISTRICT (86), DIVISION (17)
SUBDIVISION (65)
HISTORIC
YES
1
MONGOLIA
PROVINCE (21)
SUBDIVISION (331)
NOMADIC GROUP
-
1992
YES
1
MYANMAR
STATE (7) REGION (7)
SELF-ADMIN (6)
DISTRICT (67)
TOWNSHIP (330)
2008
YES
1,2
PHILIPPINES
PROVINCE (81), AUT REGION (1)
INDEP CITY (38)
CITY (145), MUNIC (1,489)
VILLAGE (42,029)
1991
YES
1,2,3,4
SINGAPORE
TOWN (11)

-
-
-
1988
NO
1
TAIWAN
MUNIC (6), COUNTIES (13), CITIES (3)
DISTRICTS (164), RURAL TOWNSH (122), URBAN TOWNSH (38)
COUNTY-CONT CITIES (14)
MOUNTAIN INDIG TOWNSH (24), MOUNTAIN INDIG DISTRICTS (6)
1994
NO
1,2,3,4
THAILAND
PROVINCE (75), CITY (2)
MUNIC (1,456)
VILLAGE (7,255)
-
1997
YES
1,2,3
TIMOR LT
MUNIC (13), SAR (1)
VILLAGE (2,336)
-
-
2014
YES
1,2





[1] M Turner (ed), Central-Local Relations in Asia and the Pacific: Convergence or Divergence? (London, Macmillan, 2000); A Harding and M Sidel (ed), Central-Local Relations in Asian Constitutional Systems (Oxford, Hart Publishing, 2014). Asia is defined here as Northeast and Southeast Asia, but excluding other parts of Asia and also the one-party states of Vietnam, Laos and China.
[2] G Marks, L Hoogh and A Schakel, The Rise of Regional Authority (Abingdon, Routledge, 2010).
[3] K Eaton, ‘Political obstacles to decentralization: Evidence from Argentina and the Philippines’ (2001) 32(1) Development and Change 101.
[4] R Toniatti and J Woelk (ed), Regional Autonomy, Cultural Diversity and Differentiated Territorial Government: The Case of Tibet – Chinese and Comparative Perspectives (Abingdon, Routledge, 2017).
[5] J-M Otto and G Frerks, ‘Decentralisation and development: A review of development administration literature’, Van Vollenhoven Institute, Leiden, Research Report 96/2 (1996); ‘Local Government in Asia’, chs.6-10 of MH Nelson (ed), Thai Politics: Global and Local Perspectives, KPI Yearbook No.2 (2002/3) (Bangkok, KPI, 2004).
[6] See, however, NM Davidson, ‘Localist administrative law’, 126 Yale Law Journal 564 (2017).
[7] See A Harding and J Chin (ed), 50 Years of Malaysia: Federalism Revisited (Singapore, Marshall Cavendish, 2014). Currently, peace talks in Myanmar and proposals in Philippines are embracing the possibility of moving towards federalism in both of these states. Myanmar is already described by some observers as a quasi-federation: M Brand, ‘Achieving “Genuine Federalism”? Myanmar’s Inexorable Path Towards Constitutional Devolution and Decentralised Governance’, ch.7 of A Harding and Khin Khin Oo (ed), Constitutionalism and Legal Change in Myanmar (Oxford, Hart Publishing, 2017).
[8] E.g., P Leyland, ‘The multi-faceted constitutional dynamics of UK devolution’ 9:1 International Journal of Constitutional Law 251 (2011).
[9] Y Ghai and S Woodman (ed), Practising Self-Government: A Comparative Study of Autonomous Regions (Cambridge, Cambridge University Press, 2013).
[10] See, e.g., A Harding and P Leyland, The Constitutional System of Thailand: A Contextual Analysis (Oxford, Hart Publishing, 2011), ch.4.
[11] Yeh Jiun-rong, ‘Evolving central-local relations in a contested constitutional democracy’, ch.3 of Harding and Sidel, above n.25, at 46ff; Yeh Jiunn-rong, The Constitution of Taiwan: A Contextual Analysis (Oxford, Hart Publishing, 2016), at 146ff.
[12] Harding and Leyland, above n.10, at 125.
[13] Ahmad Najib Burhani, ‘Ethnic minority politics in Jakarta’s gubernatorial elections’, ISEAS-Yusof Ishak Institute, 9 June 2017, at <https://iseas.edu.sg/images/pdf/ISEAS_Perspective_2017_39.pdf> (accessed 12 February 2018.
[14] R Biddulph, ‘The decentralisation flower in Cambodian soil’, ch.7 of Nelson, above n.5. Kuala Lumpur also, for example, has expanded far beyond Malaysia’s Federal Territory into the state of Selangor, but the law does not recognise the integrated nature of the conurbation, extending as it does over several local-government areas.
[15] R Ishii, Farhad Hossain, and CJ Reeves, ‘Participation in decentralised local governance: Two contrasting cases from the Philippines’ 7:4 Public Organisation Review 359 (2007).
[16] Thio Li-ann, ‘Neither Fish nor Fowl: Town Councils, Community Development Councils and the Cultivation of Local Government/Governance’, at <https://www.academia.edu/601385/_Neither_Fish_nor_Fowl_Town_Councils_Community_Development_Councils_and_the_Cultivation_of_Local_Government_Governance_in_Singapore>  (accessed 12 January 2018).
[17] See the District Administration website at <http://www.districtcouncils.gov.hk/index.html> (accessed 12 February 2018).
[18] See Commonwealth Network website, at <http://www.commonwealthofnations.org/sectors-brunei_darussalam/government/regional_local_government/> (accessed 12 February 2018).
[19] A notable exception is the Philippines, where the Local Government Code 1991 has received a good deal of attention: D Gatmaytan, Local Government Law and Jurisprudence (Diliman, University of Philippines College of Law, 2014); R Casis (ed), The Local Government Code: An Assessment (Diliman, Law Complex Printery, University of the Philippines, 1999). There has also been extensive study of Indonesia’s decentralisation (see below); and local government finance in China, which lies outside the scope of this piece.
[20] A study of planning law in Kuala Lumpur revealed that lawyers hardly deal with planning matters at all except for occasional instances of judicial review and planning appeals, relevant work going mainly to architects: A Harding and Azmi Sharom, ‘Access to environmental justice in Malaysia (Kuala Lumpur), ch.5 of A Harding (ed), Access to Environmental Justice: A Comparative Study (The Hague, Martinus Nijhoff, 2007), at 136. So it may be that the neglect of this area is actually to the detriment of the legal profession.
[21] The Constitutional Courts of Indonesia, South Korea, and Taiwan, have made many important decisions relating to local government. Examples from Taiwan are given below.
[22] C Johnson, Japan, who Governs? The Rise of the Developmental State (New York, WW Norton, 1995).
[23] Although 1990 may be seen as a turning point, it should also be recognised that some states had mounted extensive decentralization projects during the 1970s and 1980s, and even in some cases the 1960s: D Rondinelli, ‘Implementing decentralization programmes in Asia: A comparative analysis’ 3 Public Administration and Development  181 (1983).
[24] J Lin, Governing Climate Change: Global cities and Transnational Law-Making (CUP, forthcoming, 2018)
[25] Emphasis added; L Eslava, Local Space, Global life: The Everyday Operation of International law and Development (Cambridge, Cambridge University Press, 2015), 54; JE Hardoy and D Satterthwaite, ‘Environmental problems of third world cities: A global issue ignored?’ 11:4 Public Administration and Development 341 (1991).
[26] Johnson, above n.22; A Amsden, Asia’s Next Giant: South Korea and Late Industrialisation (New York, Oxford University Press, 1989); M Woo-Cummings (ed), The Developmental State (New York, Cornell University Press, 1999); Kevin YL Tan, ‘The role of public law in developing Asia’ [2004] Singapore Journal of Legal Studies 265.
[27] World Bank, The East Asian Miracle: Main Report (1993), at <http://documents.worldbank.org/curated/en/975081468244550798/Main-report> (accessed 12 February 2018). The report looked at eight high-performing Asian economies.
[28] Tan, above n.26, 272.
[29] See Table 1.
[30] L Chua and D Engel, ‘State and personhood in Southeast Asia: Promise and potential for law and society research’ 2 Asian Journal of Law and Society 211 (2015), at 219.
[31] F and K von Benda-Beckmann, Political and Legal Transformations of an Indonesian Polity: The Nagari from Colonisation to Decentralisation (Cambridge, Cambridge University Press, 2012); JAC Vel and AW Bedner, ‘Decentralisation and village governance in Indonesia: The return to the nigari and the 2014 Village Law’, 47:3 Journal of Legal Pluralism and Unofficial Law 493 (2015); J Vel, Y Zakaria and A Bedner, ‘Law-making as a strategy for change: Indonesia’s new Village Law’ 4:2 Asian Journal of Law and Society 447.
[32] See below.
[33] J Glassman, ‘”The provinces elect governments, Bangkok overthrows them”: Urbanity, class and post-democracy in Thailand’ 47:6 Urban Studies 1301 (2010).
[34] See below.
[35] Zhang Qianfan, ‘Legalising central-local relations in China’, ch.2, and Bui Ngoc Son, ‘Central-local relations and the constitutional discourse on political decentralisation in 21st-century Vietnam’, ch.4, of Harding and Sidel, above n.1.
[36] D Wilson and C Game, Local Government in the United Kingdom (4th edition, Basingstoke, Palgrave Macmillan, 2011), ch.4.
[37] F Fukuyama, The Origins of Political Ordering: From Prehuman Times to the French Revolution (New York, Farrar, Strauss and Giroulx), ch.7. In the idea of a ‘galactic state’, which is much concerned with the geo-body of the state, consciousness lies at the centre and satellites surround it: S Tambiah, ‘The galactic polity in South East Asia’, 3:3 HAU: Journal of Ethnographic Theory 503 (2013). Gilbert Rozman presents an interesting argument that central-local relations in East Asia (China, Taiwan, Japan, and Korea) can be reformulated on the basis of a localist interpretation of Confucianism. He finds evidence that Confucianism, rather than encouraging centralisation, actually sought to balance the power of the state with institutions lying between the state and the family. The implication is that they have not in fact done so in recent times: G Rozman, ‘Center-local relations: Can Confucianism boost decentralisation and regionalism?’, ch.7 of DA Bell and Hahm Chaibong (ed), Confucianism for the Modern World (Cambridge, Cambridge University Press, 2003).
[38] Malaysia has been an exception, local-government elections having been abolished in 1965; the new PH government has, however, recently announced the restoration of local-government elections within three years.
[39] Fukuyama, ibid., ch.6.
[40] J Scott, The Art of not Being Governed: An Anarchist History of Upland Southeast Asia (New Haven, Yale University Press, 2009).
[41] See, e.g., on Indonesian history, von Benda-Beckmann and von Benda-Beckmann, above n30, ch.6.
[42] E.g., in Malaya, see A Harding, ‘Local democracy in a multi-layered constitutional system: Malaysian local government reconsidered’, ch.8 of Harding and Sidel, above n.1, at 143; Malaysian democracy started with local elections in the early 1950s. Similarly US democratization in the Philippines under the Taft administration started with local government: see below.
[43] J-M Otto, ‘Indonesian opposition in the colonial municipality: A Minahasser in Bandung’, 2 Asian Journal of Law and Society 169 (2015).
[44] A Thiruvengadam, The Constitution of India: A Contextual Analysis (Oxford, Hart Publishing, 2017), 96-8.
[45] Nguyen Viet Huong, ‘Correlation between “huong uoc” village codes and laws in regulating social relations in Vietnam’s traditional villages’, Vietnam Law Magazine, 4 January 2011, available at <http://vietnamlawmagazine.vn/correlation-between-huong-uoc-village-codes-and-laws-in-regulating-social-relations-in-vietnams-traditional-villages-4285.html> (accessed 12 February 2018)
[46] P Tapales, ‘Devolution and empowerment: LGC 1991 and local autonomy in the Philippines’ 36:2 Philippine Journal of Public Administration 101 (1992).
[47] von Benda-Beckmann and von Benda-Beckmann, above n.30, ch.7.
[48] Ibid., 267.
[49] Ibid.
[50] Vel, Zakaria and Bedner, et al, above n.31.
[51] JS Furnivall, Colonial Policy and Practice: A Comparative Study of Burma and Netherlands India (Cambridge, Cambridge University Press, 1957), 194ff.
[52] HG Quaritch Wales, Ancient Siamese Government and Administration (New York, Paragon, 1934: 1965), 126-30.
[53] See below.
[54] Art.1a of Cambodia’s 1993 Constitution, for example, states: ‘The State of Cambodia cannot be divided …’; Art.71 states: ‘The territory of the State of Cambodia is divided into …’.

[55] M Muny, ‘Cambodia’s D&D Reform Program: Progress and Challenges’, in Tayao and Hofmeister, above n.54; D Cummins and M Leach, “Democracy old and new: The interaction of modern and traditional authority in East Timorese local government” 4:1 Asian and Politics and Policy 89 (2012).

[56] R Biddulph, ‘The decentralisation flower in Cambodian soil’, ch.7 of MH Nelson (ed), Thai Politics: Global and Local Perspectives, KPI Yearbook No2 (2002/3) (Bangkok, KPI, 2003).
[57] Harding, above n.41, at 155.
[58] Ibid., 160-1.
[59] Government of the State of Penang and Anor v Government of Malaysia and Anor [2014] 7 Current Law Journal 861.
[60] ‘PH can restore local council elections in 100 days, says lawyer’, Free Malaysia Today, 12 June 2018, at <http://www.freemalaysiatoday.com/category/nation/2018/06/12/ph-can-restore-local-council-elections-in-100-days-says-lawyer/> (accessed 4 July 2018).
[61] 2008 Constitution of Myanmar, s.13.
[62] M Crouch, ‘Ethnic rights and constitutional change: The recognition of ethnic nationalities in Myanmar/ Burma’, ch.6 of Harding and Sidel, above n.1.
[63] Ibid., at 110.
[64] 2008 Constitution, s.51.
[65] Ibid., s.74.
[66] Ibid., s.53.
[67] Crouch, above n.58, 113ff.
[68] Ward and Village Tract Administration Law 2012, Ch.IV.
[69] M Arnold, ‘The right question to start local government reforms’, Myanmar Times 1 July 2016, at <https://www.mmtimes.com/opinion/20613-the-right-question-to-start-local-governance-reforms.html> (accessed 1 March 2018).
[70] PD Hutchcroft, ‘Paradoxes of decentralization: The political dynamics behind the passage of the 1991 Local Government Code of the Philippines’, ch.6 of Nelson, above n5.
[71] Ibid.
[72] Ibid., at 313.
[73] 1987 Constitution, Article X, s.3.
[74] Local Government Code 1991 (Republic Act 7160).
[75] There is a useful comparison here with Germany’s Basic Law, Article 28, which guarantees autonomy to municipalities in terms of both competence and financial resources. Relatively few European constitutions have provisions guaranteeing local government autonomy: S Bartole, ‘Internal ordering of the unitary state’, ch.28 of M Rosenfeld and A Sajo (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012), at 616.
[76] See, e.g., ‘The PDP Laban model of PH federalism: An executive summary’, Institute for Autonomy and Governance, 28 September 2017, at <http://iag.org.ph/index.php/blog/1503-the-pdp-laban-model-of-ph-federalism-an-executive-summary> (accessed 1 March 2018).
[77] Harding and Leyland, above n.9, 123.
[78] Currently, under military government since 2014, no local or national elections have been held, but it was announced that local elections would precede national elections during 2018: ‘Thailand to start local elections’, Vietnam Plus, 14 November 2017, at <https://en.vietnamplus.vn/thailand-to-start-local-elections/121681.vnp> (accessed 28 February 2018).
[79] 2017 Constitution, ss.76, 250.
[80] Ibid., s.252.
[81] Ibid., s.249.
[82] Ibid., ss.43, 50, 57, 76.
[83] Ibid., ss.43, 58.
[84] Harding and Leyland, above n.9, at 131 ff.
[85] T Ginsburg, ‘Constitutional afterlife: The continuing impact of Thailand’s post-political constitution’ 7(1) International Journal of Constitutional Law 83 (2009).
[86] For further discussion, see S Butt and T Lindsey, The Constitution of Indonesia: A Contextual Analysis (Oxford, Hart Publishing, 2012), 185ff.
[87] Ibid., 158ff.
[88] Butt and Lindsey, above n.81, at 165.
[89] Ibid., at 58.
[90] Ibid., at 185ff.
[91] Ibid., at 165.
[92] Von Benda-Beckmann and von Benda-Beckmann, above n.30.
[93] Butt and Lindsey, above n.81, at 161.
[94] Constitution of Indonesia, Art.10(3).
[95] S Butt, Corruption and Law in Indonesia (London, Routledge, 2012), 8; H Schulte Nordholt and G Van Klinken, Negotiating Boundaries: Local Politics in Post-Suharto Indonesia (Leiden, Brill, 2007).
[96] Yeh, above n.10, 44.
[97] Taiwan province was streamlined with the central government, which in effect abolished Taiwan province as a separate government.
[98] See JY Interpretations 550 (national health insurance costs) and 553 (postponement of elections): Yeh, above n.10, 51-3.
[99] S Matsui, ‘The role of central government and local government in times of crisis: Japan’s experience after the Great East Japan Earthquake Disaster’, ch.7 of Harding and Sidel, above n1.
[100] Regional Government Law 2004, Article 6.
[101] Ibid., Article 29.
[102] Ibid., Article 30.
[103] Ibid., Article145(2).
[104] Butt and Lindsey, above n.81, at 172-3; see, further, Vel, Zakaria and Bedner on the 2014 Village Law, above, n.31.
[105] Law on Fiscal Balance 1999.
[106] Butt and Lindsey, above n.81, at 171-2.
[107] Law on the Administrative Courts 1986.
[108] Local Government Code 1991, ss.25, 29, 30.
[109] Ibid., s.25.
[110] Above n.93.
[111] Brunei is an exception: see above.
[112] This table somewhat oversimplifies the levels of local government, which can be extremely complex, as, for example, in the Philippines, where the various levels merge into each other; may differ internally, as in Malaysia (East Malaysia has a different structure from West Malaysia); or maybe incomplete (as in Myanmar which has, below level 4, levels 5 and 6: wards/ village tracts, and villages). I have used English terms in the Table for ease of comparison, but it is noteworthy that in the various constitutional texts considered here even the English versions use vernacular terms, which are generally historic. This does not necessarily of course imply the survival of traditional modes of local government, but may give expression to local identity in some fashion.

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