Pluralism and Territorial Governance in Southeast Asia: Regional Autonomy versus Local Decentralization

[This is a conference paper now in press, publication details TBC]

 

Pluralism and Geography

The imperatives of colonial and post-colonial history in Southeast Asia have forced ancient kingdoms, expanses of jungle and agriculture, towns of migrant communities, and modern cities, into somewhat disjointed ‘Eastphalian’ states[2] with an apparatus of government largely, and sometimes uncomfortably, based on Western models.[3] The entire effort of nation-building in that region is still encompassed within the lifetime of an individual who may even have been an adult at its outset.

In Southeast Asia territorial governance is therefore bound to be of great importance. Indeed throughout most of the region’s history territorial governance has been the main mode of governance. Even larger political units tended historically to correspond more to regions with an urban centre, or provinces, than to the modern nation-states.

In the absence of strongly centralized state-building until relatively recent times, and in the presence of a bewildering array of ethnicities and religious and linguistic communities, it is not surprising that communities in Southeast Asia have always had a strong sense of locality and of connection to the land.[4] Sometimes indeed this connection is spiritual in nature. Engel and Chua in their study of Southeast Asian law and society research put it this way:

concepts of personhood [are] closely linked to physical and social places, or what we call ‘locality’ and ‘social terrain’, respectively. Together, they suggest that, in Southeast Asia, who one is depends on where one is. Localities help to constitute personhood through the cultures, communities, and sacred things situated there. They determine the social status and identity of persons, families, and groups, thus shaping personhood both individually and collectively. Similarly, the social terrain determines how people interact with one another, thereby constituting one's personhood in relation to other people.[5]

Locality considered in this light is not region- or province-wide but narrower in scope. The conjunction of identity and locality leads to a question: is this conjunction not just a social fact but a possible way of dealing with the problems of the plural society? Given that Southeast Asia comprises a number of world’s most diverse societies, might this region of half a billion people, with its entrenched and extensive diversity, offer some cause for reflection on the relationship between pluralism and territorial governance?

 

Normative Responses

There are three main approaches to the problem of the plural society.[6]

The first is to assimilate minorities with the majority community in strict equality before the law (legal equality). In this model the particularities of different communities are legally irrelevant, being merely a facet of freedom of cultural expression or other rights. Accordingly, in this model the norms and customs of minorities do not have the force of law. This position is typical of the secular state, which is usually blind to religious or customary norms, or at least has a neutral attitude towards them. This approach does not sit comfortably with states in Southeast Asia where identity and locality are fundamental, but secular ideology usually is not.

The second approach is to concede, to one extent or another, the operation of different laws for different communities within the same social field. This is official legal pluralism. In Southeast Asia Muslims are the most obvious, but not the only, recipients of official legal pluralism, and in several jurisdictions, as is discussed below, even have their own sharia’ court system administering Islamic law.[7] In this system it is usual although not universal to make concessions in personal law – family law and the law of succession – but not in other areas such as criminal law and commercial law.[8]

The third approach is to concede, to one extent or another, the operation of different laws for different communities according to geographical as opposed to social fields. This is also a form of official legal pluralism, but one that is limited by geography. This approach requires a system of territorial governance in which some areas are defined as minority areas or homelands, and powers are devolved to governments in those areas asymmetrically in order for them to exercise a form of self-determination. This could involve a modification of a federal structure or merely a devolution of powers. Another approach based on territorial governance is to devolve powers symmetrically to all subnational units, both those that are inhabited mainly by a minority community and those that are not; but to do so in order to allow for the expression, within the confines of a national legal system, of cultural identity and difference.

These three approaches are based respectively on legal equality, legal pluralism, and territorial governance. The third case is the subject of this chapter. But it will be apparent from the foregoing that there are two very different ways in which territorial governance might be organised in a plural society. Asymmetric regional autonomy is the more obvious way of providing for a minority, and in Southeast Asia we can see some examples that are discussed below. Of course, in the extreme case such an ethnic region might claim secession. Regional autonomy is of course designed to prevent the secessionist tendency by depriving its sails of wind.

One aspect of this issue that tends to escape attention is the general phenomenon of decentralization of decision-making powers to local governments across most of Southeast Asia since the 1990s, or in some cases even earlier. Decentralization may of course have various objectives that do not relate to the plural society. It may be designed to deliver services more effectively and efficiently; or to galvanize development by tapping into local enthusiasm and a sense of ownership; or to deepen democracy and accountability nationally, bringing decision-making as close as possible to the people. Yet at the root of such projects is really the need to respond to a demand for local self-government. Such demand is not of course confined to plural societies, but cannot help being based on some sense of local identity, otherwise there is no ‘we’ to press the demand or to receive the benefit of decentralization. In this way decentralization responds to the plural society,[9] although the idea of ‘plural’ takes on a much broader meaning in this context, and may include political or cultural pluralism, or even simply the desire for economic self-determination. This has been captured by the idea of ‘federalism all the way down’;[10] or in more modest way the idea of ‘subsidiarity’, where decisions should be taken at the level closest to the people, wherever possible.[11] In some cases the identification of the local government unit is done on the basis of ‘indigenous local governments’, deliberately to reflect local governance traditions.[12]

This chapter therefore accepts that in a plural society it may be appropriate and effective to deal with the issue of ethnic, religious or linguistic difference by marking off one or more geographical areas in which a national minority is locally in a majority, and devolving special powers to a local or regional government for that area. Any devolution of powers may of course lead to legal pluralism in the broad sense of having different laws on the same question across different territorial units. This indeed would be one of the purposes or concessions of decentralization. An obvious example of such an arrangement is federalism, in which subjects of the federation may diverge legally from other subjects in areas within their competence, while retaining many laws that are in common form, in addition to observing and enforcing laws made at the federal level. This chapter ventures onto rather different ground, however, by going beyond regional autonomy and asking to what extent general decentralization to local governments (which I refer to here as ‘local decentralization’ to distinguish it from regional or provincial decentralization) may also be a useful way of responding to the problems of pluralism. Local government decentralization is discussed in the latter part of the chapter and my conclusion is that this is a solution to the problem of pluralism whose merits are not generally recognized, but could be exploited further than has been the case.

In the choice of a policy tool for addressing the plural society it has to be conceded that much will depend on the actual distribution of the population. In many instances it will be possible to define areas that are more or less exclusively inhabited by a minority community that seeks a ‘homeland’. This situation offers the possibility of making concessions to the minority: that is, permissible divergences from strict legal equality, that may involve significant advantages for the minority. Such concessions might in Southeast Asia include special powers over religion, such as the right to recognize or regulate religious or customary observance; special rules about language, such as those relating to the medium of instruction in schools or the language of official signs or documents; or rights accorded only to members of the relevant minority, such as special access to housing or enjoyment of land rights or public service positions. In addition, however, legal pluralism may simply involve the right to enact laws that are different from national or standard-form laws. The extent of this right will depend on the degree of autonomy that is granted. In this case such laws may reflect a local culture not shared with other regions, or may just reflect different local spending priorities or social values. In all these cases, however, the common element is legal divergence resulting from the form of territorial governance.

The precise manner in which this is done, or whether it is done at all, depends to a large extent on demography. If, for example, a minority is diffused more or less evenly across the nation’s geography, such a territorial solution may not be possible as it would involve too much disruption, and legal pluralism may offer a better solution. On the other hand, if a community is compacted within a smaller area, then territorial governance may offer better prospects. It should be noted here, however, that, referencing the idea of locality discussed above, the smaller the area involved the more likely it is to be ‘compacted’. Of course, in very many cases the demography is rather messier than diffusion or compactedness: a minority may well these days, as a result of greater social mobility, be spread across the country in addition to being concentrated in a particular area or areas. An area identified as a minority area might contain significant numbers of citizens belonging to the majority, or another minority, community, creating a similar local dynamic to that observed nationally; the result may be enclaves within enclaves, a situation that occurs frequently in Southeast Asia. We should note here that in Southeast Asia territorial compactedness corresponding to a region or province is very much the exception rather than the norm. Only a few million of the region’s half a billion people live under asymmetric regional autonomy. Aceh has 4.7 million people, Papua 3.5 million, Bangsamoro around 4 million. These represent mere slivers of the whole population, yet pluralism itself is to be found everywhere.

This chapter then looks comparatively across Southeast Asia at two forms of territorial governance. The first is regional autonomy granted for the express purpose of recognizing ethnic, religious, or linguistic pluralism. The second is local decentralization for the express purpose of recognizing a right to local self-government, irrespective of demography or special claims.

These two types of territorial solution to pluralism carry both advantages and disadvantages. Regional autonomy provides a minority with the security of control over its own traditional territory or homeland; but it also involves giving special powers that are not given to other regions, possibly creating political tensions at every political level: asymmetry by definition implies inequality.[13] It might have the effect of reducing the demand for complete secession; but it may instead also have the effect of emphasizing difference, inhibiting the natural trajectory of nation-building, or even raising issues of identity that were not naturally there or not expressed in that form. Local decentralization on the other hand avoids the problem of special powers, as the powers granted will be standard for all local governments; on the other hand it does not necessarily give a minority the security of being specially or symbolically recognized, or of having a homeland within the nation-state, or even a breadth of powers that could approximate to such security. One advantage (or possible disadvantage) of local decentralization, however, is that difference is not marked out constitutionally; in this model all units have the same powers, and their identity is expressed through the way they choose to exercise such powers, there being no marker of difference. Which solution is likely to offer a greater chance of success depends on a number of variables, including the psychological variable of how difference is perceived by the minority, the majority, and other minorities. But it is my contention that the virtues of local decentralization have not been looked at carefully enough in this context.

 

Southeast Asian Particularities

The policy choice between regional and local decentralization is contingent to a great extent on immovable demographic factors. It will nonetheless be my contention that local government decentralization can deal with this degree of complex pluralism.

Looking at Southeast Asia as a whole it is remarkable how the distribution of populations bears so little relation to national or provincial boundaries. Whereas most European states, for example, can largely date the congruence of their borders and their ethnic identity back to a period between the collapse of the Roman empire and the Treaty of Westphalia,[14] Southeast Asian states are mainly of very recent origin, or if ancient have radically altered their boundaries, for one reason or another, to include minority areas. They have therefore experienced intractable problems of nation-building.[15] Large states like Indonesia, Myanmar, Thailand, and the Philippines, present a very high degree of ethnic diversity. Whereas in Western states diversity is mainly confined to larger cities, in Southeast Asia it is found everywhere from port cities to jungle and highlands. National ideologies therefore tend to stress unity, precisely because such unity has not naturally been there but needs to be created in ways that go far beyond the flag, the anthem, and the football team. In the following sections I survey – and of necessity only in outline - various arrangements that we can see dealing with regional autonomy and pluralism in Southeast Asia, before turning to local decentralization.

 

Indonesia

Indonesia is one of the most diverse states in the world. Among its more than 18,000 islands exist more than 300 ethnic groups , and six religions are officially recognised. The republic has been challenged by problems of unification versus fragmentation, with secession being a real possibility in some provinces at some periods of history. Given that decentralization was introduced partly as a means of outflanking such secession movements by devolving power to the lower level of city and regency governments,[16] Indonesia is especially interesting for this study as it employs both methods of dealing with pluralism discussed here.

Two areas are of special interest for present purposes: Aceh and Papua.

Special Autonomy in Aceh[17]

Aceh is a strongly Islamic province at the Northern tip of Sumatra that periodically waged war against Dutch rule for around 300 years prior to Indonesian independence, and continued to resent inclusion within Indonesia in 1945, which, although agreed by Aceh at the time, led to exploitation of its abundant natural resources and oppression by the central government in Jakarta. A rebel group, Gerakan Aceh Merdeka mounted an insurgency against Indonesian forces, especially between 1989 and 1999, resulting in extensive violence on both sides. Eventually there were moves towards establishing peace, and an Aceh Autonomy Law was passed in 2001,[18] but failed to resolve the conflict. Ultimately, following the devastating tsunami that hit Aceh in December 2004 and killed more than 120,000 people in the province’s coastal areas, a permanent peace was concluded in 2005 and given effect in the Law on the Government of Aceh 2006,[19] which involved the granting of asymmetric powers to the province over a number of subjects, especially religion, customary law, education, and natural resources.[20] The 2006 Law is a comprehensive piece of legislation that acts as a special constitution for Aceh embracing both provincial government and central-local relations

The process dealing with the Aceh insurgency was Indonesia’s first item on the decentralization agenda, which also started in 1999, and is properly seen in that context. However, Aceh autonomy goes much further than the general decentralization, which gives power to local governments rather than provinces. Of Indonesia’s provinces only Aceh has powers over religion, and only Aceh has the right to veto national legislation in its application to the province. It has power to implement Islamic law via qanun (local regulations), distinguishing the province from the whole of the rest of IndonesiaAceh’s shari’a court jurisdiction goes beyond the rest of Indonesia and the Southeast Asian region, embracing both criminal and commercial law as well as the more obvious subjects of family law and succession. The Islamic jurisdiction has notably been exercised through qanun outlawing, for example, gambling, alcohol and sexual immorality. Most significant is the qanun jinayat or Islamic criminal code, which has been controversial.[21] This law involves hudud and ta’zir punishments, and applies to Muslims in Aceh as well as non-Muslims who commit offences with Muslims or who violate the qanun in terms of offences not provided in the Criminal Code. For Muslims the qanun jinayat takes precedence, according to its own terms.[22] There are many objections to this qanun, and its validity has been challenged, albeit unsuccessfully, in the Supreme Court, on the grounds that it violates the hierarchy of laws and the Law on Law-making.[23] The Constitutional Court has power, not yet exercised, to rule qanun as contrary to the Constitution.[24]

There is of course a cost to such arrangements. The qanun jinayat is a legal irritant[25] in a number of respects. Such law may not be in conformity with human rights as expressed in the Indonesian Constitution, in terms of being oppressive to women or sexual minorities, or involving cruel or unusual punishments; and their applicability to non-Muslims is highly unusual in the region. As Butt and Lindsey have stated, ‘[t]he result is the most ambitious attempt to formally apply Islamic law in modern Southeast Asia’.[26] The tension with national criminal law is palpable. There has also been controversy over an Aceh ban on independent candidates in elections, where the Constitutional Court struck down a provision of the Aceh Government Law itself.[27]

Special autonomy in Papua

The province now known as Papua forms most of the Western part of the island of Papua and its population is mainly indigenous Melanesian. An insurgent group, Organisasi Papua Merdeka, has the agenda of complete independence from Indonesia and claims that Papua never really agreed to be part of the republic, but was coerced into joining. As with Aceh, there are issues of local culture and natural resource exploitation, allied with the province’s under-development. As with Aceh, Papua’s autonomy was part of the decentralization plan, and is provided by the Law on Special Autonomy for Papua Province 2001.

The most significant features of the 2001 Law are, first, its provision for return of 70% of oil and gas revenues to the province for 25 years (the proportion then reduces to 50%); and second, as distinct from the Aceh law providing for religious powers, the creation of a Papuan People’s Assembly (Majelis Rakyat Papua, MRP). The MRP’s main purpose is to advise the Papuan government on the protection of the rights of the indigenous people. Under the 2001 Law (Art,19(1)) the MRP is to comprise equal numbers of representatives of traditional adat communities, women, and religious figures, selected by their respective constituencies. The provincial government is under a duty, further, to protect customary law and indigenous land rights.[28]

The main problem with the 2001 Law is its provision for MRP membership, which involves appointment of 25% of its members. This provision has been challenged in the Constitutional Court on grounds of lack of equality of access to opportunity and benefit (Constitution, Art.28H(2)), and breach of provincial powers to regulate and administer matters of government (Art.18(2)). The decision recognizes the legitimacy of making appointments to the MRP as part of affirmative action to enable adat community representatives to participate in decision-making and protect the environment and Papuan customs. In another decision, the Constitutional Court allowed a cultural exception to ordinary voting rules in a case involving the customary noken system, which is used in parts of Papua. Under this system the village chief determines the distribution of votes by implicit consent of the villagers, described by the Court as ‘community agreement’ or ‘acclamation’. This was justified by reference to the obligation under Art.18B(2) of the Indonesian Constitution to respect adat communities and their traditional rights, and the need maintain harmony in traditional communities with their own norms concerning elections.[29]

 

Malaysia

Malaysia offers a useful comparison in that it has a constitution that implicates asymmetric federalism in respect of the two Borneo states of Sabah and Sarawak, whose special position was negotiated at the iteration of Malaysia,[30] rather than conceded by a unitary state as with Aceh and Papua. This was not part of a decentralization process, but rather the opposite, that is, the integration of the two territories with an existing federation to form a new, two-tiered, federation. This was effected by the Malaysia Agreement 1963 and amendments to the Constitution of the Federation of Malaya 1957 to create the new entity of Malaysia.[31]

Sabah and Sarawak have exactly the same position as each other constitutionally, and enjoy special powers going beyond those of West Malaysian states, over immigration, family and customary law, and constitutional amendments.[32] As with the other states their powers include powers over local government.[33] Their legal systems are also separate from that governing Peninsular Malaysia, and in addition to the civil courts and shari’a courts that administer justice across all of Malaysia, there are native courts administering their adat for the indigenous people.[34] The main objective of the Malaysia Agreement was to ensure protection of the indigenous people, who form a majority of the more than two million population in each of the two states. While there has been no insurgency or secession movement, the period of membership of the federation (1963 to date) has been punctuated by federal interference in the operation of these states’ politics, and back-sliding on the commitments of 1963, which offered a partnership rather than a takeover.[35] Rather than guaranteeing a large degree of autonomy, the constitutional arrangements have failed to prevent creeping centralization and gradual approximation of the two states’ special position to that of the other eleven states, in what is already a highly centralized federal system. Resentment has meanwhile been mounting in Sarawak in particular over cultural and religious issues, and natural resource royalties, which have been fixed at only 5% for many years, but are now raised to 20% (contrast the position in Aceh and Papua discussed above). As with the two Indonesian cases the abundance of natural resources is contrasted with indicators of underdevelopment.[36] Development clashes extensively with indigenous customary land rights across both states, giving rise to constant litigation.[37]

Currently, the demand for autonomy, variously expressed as being aimed at ‘sovereignty’, ‘devolution’, and ‘recognition of special status’, is very strong. The Pakatan Harapan federal government that took office in May 2018, before being undermined and replaced by the new Perikatan Nasional government in March 2020, promised to address the desire for autonomy, but went only so far as to propose a somewhat symbolic constitutional amendment in 2019 that failed to achieve the requisite two thirds’ majorities in both houses of parliament.[38] The new government has also undertaken to deal with this issue. It seems clear that Sabah and Sarawak need a new deal involving a commitment to fully observe and implement the letter and spirit of the 1963 Agreement, as well as devolution of powers that are not mentioned in that Agreement but which nonetheless make sense in terms of subsidiarity and decentralization.[39]

 

Philippines

In the Philippines, attempts have been made to find a similar solution to those in Aceh and Papua for the region formerly known as Muslim Mindanao, but now known as Bangsamoro. As with Aceh there is a long history behind the claim for autonomy, based on the Muslim identity of the region. Insurgent groups, notably the Moro Islamic Liberation Front (MILF) have mounted a campaign of violence intermittently since 1945, aimed at autonomy or independence. Regional autonomy, extensive in its potential breadth, is clearly entrenched in Article 10 of the 1987 Constitution, which requires the enactment of a special autonomy law for the region.[40] Pursuant to this provision the Organic Act for the Autonomous Region in Muslim Mindanao Law was passed in 1989.[41] However, successive attempts to make autonomy work proved unsuccessful, being rejected by some groups as creating too little autonomy for the region.

Peace talks continued over several years between groups advocating autonomy, including MILF, with the national government. A comprehensive agreement had been reached in 2014, but the region was destabilized by Islamic extremism, a notable example of which was the seizure of the regional capital Marawi by Abu Sayyaf in 2017, which led to extensive military action, a siege, and widespread destruction of the city.

As a result of further talks the Bangsamoro Organic Law was passed in 2018. The peace process led to a double referendum in early 2019 and the consequential creation under the organic law of the new Bangsamoro Autonomous Region in Muslim Mindanao (BARMM) and a Bangsamoro Transitional Authority to oversee the implementation of regional autonomy. The referenda established the acceptability of the principle of autonomy and also which municipalities and barangay would join the new region; 63 barangays in Cotabato province did so. Under the organic law the BARMM is currently in transition to full autonomy with the election of a local parliament in 2022. As with the special autonomy laws for Aceh and Papua, the Bangsamoro law acts as a constitution for the new region, covering all aspects including central-local relations.[42]

The implementation of asymmetrical autonomy, the ultimate outcome of which remains to be seen, is not without problems as a solution. The organic law provides for a Westminster-type parliamentary system of government with a Chief Minister and a regional head of state, that sits uneasily (another legal irritant) with the Philippines’ presidential system, and is considered by some to be unconstitutional. Partly for this reason and partly because of the extent of autonomy, the BARMM has spawned a debate around the creation of a federal system and wider constitutional reform, for which the BARMM may be seen as a pilot scheme. Yet it does not appear that federalism proposals are likely to yield fruit in terms of actual reform.[43] Thus asymmetrical regional autonomy has become a general problem for the Philippines. The current debates concerning federalism proposals owe much to the fact that other regions resent the special concessions to Bangsamoro, and federalism would offer those regions a similar degree of autonomy. Already in 2018 a new demand emerged for recognition of autonomy for Bangsa Sug, a region comprising other Mindanao provinces that distinguish themselves from the Bangsamoro.[44]

As a result of the referenda the BARMM region is geographically odd (for example, Isabela City is not part of it but the rest of the province of which Isabela is part is included) comprises three major cities, 116 municipalities and 2,590 barangays.

The issue of pluralism lies of course at the root of the problem and as with Aceh a central issue is the justice system under which shari’a courts exist at lower and appeal levels, applying Islamic law, while indigenous people are dealt with separately under their own adat, providing another layer of legal pluralism.

Myanmar

Under its 2008 Constitution Myanmar is in theory a decentralized state, but much of what the constitution demands is yet to be realized, and it displays in practice a great degree of centralism. However, the main division into seven states and seven regions is already recognized historically. The difference between the regions and the states is not primarily a legal one. States are ethnically based, whereas regions denote areas where Burmans are in the majority, but, as Melissa Crouch puts it, ‘[t]he seven ethnic-based States are primarily highland, border areas that occupy a different place in the political imagination compared with the seven Regions in the lowlands’.[45] Some of the ethnic states have been in conflict with the Burmese/ Myanmar army since the end of World War II, and the future of Myanmar depends on the real integration of these states into the Union. The constitutional status of the states is exactly the same as that of the regions, so that their autonomy, insofar as it exists, is symmetrical, not asymmetrical. Nonetheless, these states do offer the ethnic groups a constitutionally guaranteed homeland, and the possibility in future to exercise their powers so as to protect their religions, languages and cultures. Nonetheless, the Chief Ministers of states and regions are centrally appointed, the Chief Minister selects the other ministers, and the administration of both states and regions comes under the central General Administration Department within the interior ministry. The executive in states and regions is responsible to the President, not to the state/ region legislature.

The powers of the states/ regions are quite extensive, embracing finance, town and housing development, the economy, agriculture, municipalities, the local economy, industry, agriculture, energy, electricity, mining, forestry, transport, communication, construction, social welfare, fire and disaster response, and heritage and cultural preservation.[46]

Despite this, Myanmar also has a degree of local decentralization, and also the designation of Self-administered Zones and Divisions, which are special ethnic enclaves recognized by the 2008 Constitution, which guarantees them a degree of self-governance. These SAZs/ SADs were established in 2010 under a process that was part of the drafting process for the 2008 Constitution itself. They are the Naga, Kokang, Danu, Palaung, Pa-O and Wa Areas.[47] They are defined by their common ethnicity, which had to be established according to fixed criteria, and comprise between two and six townships. They enjoy legislative, executive and judicial powers that include local development and the operation of the local economy, public services, the environment.

In addition to this, Myanmar has an unusual system of ‘national races’ representatives at both state/ region and national level.[48]

Currently there are intermittent meetings of the Second Panglong conference designed to resolve conflicts that have troubled Burma/ Myanmar for almost 80 years.

****

One obvious overall conclusion we can draw from this survey is that regional autonomy is revealed not as an ideal but as a least damaging solution to the problem of pluralism that seems confined mainly to instances of continuing violence and/ or potential separatism. It has proved very difficult to negotiate these to a state of finality. Typically, the process has been punctuated by violence, and has been uncertain in its implementation. Even though it might seem to have succeeded in some instances, in the limited sense of avoiding secession and offering hope of integration, it would be an exaggeration to say that regional autonomy has become entrenched, accepted, and certain in its parameters. It remains for the most part stuck at the level of experimentation. Regional autonomy addresses the issue of bare adherence to the nation-state, but fails to address the issue of real-time nation-building.

 

Local Decentralization and Pluralism

We now move from regional autonomy to local decentralization. Here the impacts of pluralism and on pluralism will be much less visible and so harder to analyze, for the reason mentioned earlier that issues relating to pluralism are not formally distinguished from other issues. Also part of the argument here is that pluralism will have different resonances according to the demography and culture of the relevant locality.

The process of decentralization has resulted partly from persistent demands for localism and partly from international efforts to encourage extensive decentralization for reasons intimately connected with development, public-sector reform, and democratic entrenchment.[49] The theme of decentralization was taken up concertedly by the international community after the end of the cold war; but it was already a happening event across much of the region. It more or less predates all of the examples of regional autonomy we have discussed.[50]

Despite the disputed extent to which decentralization should occur, its persistence and its growth are remarkable, and this is evidenced in its espousal by the international community, which has increasingly become a major actor in its implementation. Indeed, decentralization is these days an important part of what we mean by ‘development’.[51] The United Nations Development Programme, for example, is unambiguous in its support for linkage of decentralization and development:

For development and governance to be fully responsive and representational, people and institutions must be empowered at every level of society – national, provincial, district, city, town and village. From UNDP’s perspective, [decentralization and governance for development] comprises empowering of sub-national levels of society to ensure that local people participate in, and benefit from, their own governance institutions and development services.[52]

The UN Sustainable Development Goals of 2015 recognize this when they refer, as they do at Goal 16(6), to development of ‘effective, accountable and transparent institutions at all levels’.[53] Luis Eslava in his study of Bogota even asserts that ‘decentralization has been the official channel through which local jurisdictions have been transformed into the new foci of development’.[54]

The interesting issue in the present context is not so much the success of these efforts as ‘decentralized development’ (to capture what is really a complex of ideas), but rather whether decentralization is capable of addressing issues of pluralism.

First, let us note that pluralism is in general recognized as a legitimate and important object of decentralization globally. As Yishai Blank has expressed it,

autonomous localities can also best reflect the heterogeneity and plurality of the people. Self-governing political sub-national units, according to this vision, can allow various groups -religious, ethnic, racial, cultural, and linguistic - to pursue their own goals and advance their particular values and interests, while still enabling them to be a part of a larger polity.[55]

Local knowledge is also highly relevant;[56] Blank again, tying in with Engel and Chua quoted earlier:

Local communities are not always defined by religion or ethnicity, but occasionally by a unique local knowledge or culture tied to a specific location or history. This specific ‘know-how’ is inculcated through the intimate shared living environments that localities are uniquely suited to provide, and cannot be easily duplicated by people who are not ‘local’.[57]

Thus local governments can act as cultural mediators in communication with the central government, drawing on special local knowledge. This contains great possibility for avoiding or solving situations of conflict. Local governments are not after all foci for the demand for recognition of difference beyond what is generally conceded; but they can pay important, low-key, roles in dealing locally, where it matters, with problems of pluralism.

The central question here is to what extent has local decentralization in fact, or could in future, respond, to, or provided for, ethno-cultural pluralism. How one goes about answering this question is not at all obvious, and much of the answer I provide here is speculative, depending on verification and further exploration. Be that as it may, we can imagine inquiry proceeding along the lines of answers to the following questions.

1.      Do the local government units as defined in local decentralization reflect different, traditional, ethno-cultural elements? Or is the local-government system designed on the basis of mere administrative convenience? Are they – to simplify the matter - organic or administrative in nature?

2.      Did the legislator envisage decentralization as a recognition of these organic elements, as shown in the background and justification leading to decentralization?

3.      Do the powers actually devolved to local governments, and the manner in which these powers have been exercised, reflect a recognition of these elements?

I do not make so bold as to answer these questions definitively here, but I do attempt to indicate in outline what such answers might look like and how they further the idea of local decentralization as a tool for dealing with pluralism.

 

Local Decentralization and Southeast Asia

With these issues in mind, we can now discover a few features of local government and decentralization processes across the region. I do not in this section attempt to provide general narratives for decentralization processes across the region, but rather to pick out aspects of that process that are relevant.

Since the early 1990s there has occurred a largely unsung drive towards decentralization across most of the world, including Southeast Asia.[58] Decentralization has conferred on local government authorities a far higher degree of autonomy than existed previously. Democratic elections have proliferated at the local level, extending the reach of democracy and constitutional government. Only Malaysia of the states studied here does not have local government elections.[59] Indonesia has more than 1000 elected legislatures, mainly at the local level. There is remarkable synchronicity across these states. Decentralization commenced in Thailand and Indonesia in 1999, in the Philippines in 1991, and Cambodia in 1993. Myanmar’s decentralization remains largely a legal abstraction, while Malaysia has bucked the regional trend by a gradual process of centralization, albeit from a highly decentralized starting point. In all these cases decentralized government is envisaged and mandated by the constitution in one way or another.

Southeast Asia has decentralized the nation-state to a degree that is quite surprising, given the region’s reputation for creating authoritarian, illiberal states.[60] This spread of the decentralizing tendency cries out for explanation. Charles Fombad writes of African decentralization as a ‘silent revolution’; much the same has occurred in Southeast Asia.[61]

If the literature on decentralization is clear on anything it is that there is no single dominant explanation for decentralization. However, in Southeast Asia it seems plausible to imagine that decentralization owes a good deal to the need for a response to identity politics in its plural societies, designed to avoid or resolve inter-communal conflict and thereby contribute in meaningful ways to nation-building. In Southeast Asia there are at the very least factors of local identity and culture that exercise great sway in the decentralization process. It is of course likely that we will find a mix of motives when we examine individual cases: contexts differ greatly when it comes to motivation: who drives decentralization, why do they do so, and how is it sustained over time. Decentralization projects in Southeast Asia have rarely been described as wholly successful. Although there are some examples of ‘recentralization,’ decentralization has in no case been abandoned as bad job in some kind of rapid, centripetal withdrawal of powers. Typically, decentralizing reform projects involve different stages of implementation, some changes of direction, significant adjustments, some retrenchment, and controversial turf-wars over powers and money. They can also be proxies for national political conflicts.[62] Success or failure may well, in the end, be in the eye of the beholder rather than some kind of reportable outcome: it all depends what stakeholders wish to get out of it. Apart from this, direct lateral comparison is hazardous when decentralization takes so many different forms, and our knowledge base in many cases is quite thin, or at least not comprehensive enough to draw confident general conclusions.

Nonetheless, despite the ambiguity inherent in assessing the practical outcomes of decentralization, its benefits in terms of empowerment of localities through democratization of local governance are in general terms these days virtually uncontested, even if they are not perfectly democratic or functional, or even easy to pin down. The main questions are, not whether decentralization should take place, but how far should such a policy go, and with what resources, and what control mechanisms are appropriate in terms of central-local relations and accountability of local governments?

We can also add the question, how can local self-government be entrenched constitutionally? When we move to constitutional law, we need to ask whether local government or decentralization are even recognized as constitutional topics. The nub of interest here is whether the right to local self-government is an entrenched, or, in the case of a mandated process of decentralization, an envisaged constitutional principle. As the authors of a leading text on federalism point out, contrary to previous trends

national constitutions of more recent devolutionary systems have tended to explicitly recognise local government … [and] local governments have recently been attracting increasing interest on the part of both constitution-makers, and, consequently, scholars conducting research on federalism.[63]

There are two models here. One we can call the ‘constitutional mandate’ model, corresponding to local self-government as a right; and the ‘legislative model’ under which local self-government is not mandated by the constitution but is purely a matter of legislative choice, such as an organic law on local government. The constitutional mandate model applies in the Philippines, Indonesia, Thailand, and Myanmar, while Cambodia has the legislative mandate model. Malaysia is ambiguous in this regard, but local government as such is a constitutionally entrenched topic, even though elected local government authorities are not. The importance of this point is that minorities are not likely to place trust in a system that is not entrenched constitutionally, but exists at the discretion of the legislature. Regional autonomy has an advantage in terms of having a special constitutional arrangement based on a peace process and negotiated solutions.

 

Southeast Asian Dimensions of Decentralization

With increasing prosperity and decentralization in Southeast 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 centralized services such as education, health care, and social welfare.[64]

In addition, most Southeast Asians live in cities.[65] Large cities, which are drivers of all aspects of development (save perhaps agriculture), and are also large consumers of the benefits of development, have been granted unprecedented autonomy as they have grown in practice beyond their traditional constitutional status as well as their legal boundaries. In Southeast Asia the population of some cities exceeds that of many sovereign states across the world. Metro Manila, for example, has consumed 17 cities and municipalities, encroaching on four provinces as it has grown into one of the world’s megacities, with a population of almost 13 million, contributing a third of the Philippines’ GDP.[66] Bangkok, Hanoi, Ho Chi Minh City, Yangon and the Kuala Lumpur conurbation all comfortably exceed a population of seven million. Jakarta is considered a leading candidate for the world’s largest city in population by 2035. Government structures have responded by increasingly granting special status to larger cities, which often have equivalent or even more power compared to provinces, as well as extended boundaries. Bangkok and Pattaya have special status in Thailand’s local government structure;[67] gubernatorial elections in Jakarta, a special capital region, are a matter of national importance;[68] Phnom Penh has in effect swallowed up a neighbouring province;[69] Myanmar has three cities with special status (Naypyidaw, Yangon and Mandalay) each having its own development council and mayor; while the Philippines has created no less than 38 ‘independent cities’;[70] Kuala Lumpur is a federal territory with its own laws. The rising power of cities is driving decentralization to places not previously envisaged. Some cities have established themselves as international subjects in their own right.[71]

Colonialism, continuing and reinforcing the trend of centralization, generally suppressed, or tried to suppress, localism, or tolerated it only by necessity or as a façade of indirect rule.[72] In British-ruled territories in the 20^th 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.[73] In the Dutch East Indies in the early 20^th century there was a 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 - the desa or kampong. To this extent they were administrative rather than organic – described indeed by Van Vollenhoven as ‘Western enclaves in an Eastern society’.[74]

 

 

 

Accordingly, when colonial powers entered the region and established their power, often by indirect rather than direct rule, it made sense to retain the existing local polities as administrative units. The Dutch East Indies, for example, retained the traditional nagari of West Sumatra as local administration: ‘the nagari became the classic case of indirect rule: adat polity and administrative unit at the same time’.[75] Thus colonial administrative policy could be pursued without disturbing traditional governance more than was strictly necessary. Von Benda-Beckmann and von Benda-Beckmann, in their classic study of the nagari in Indonesian decentralization, go so far as to regard the state and its law as embedded within the nagari rather than vice versa.[76]

Given this history, colonial powers, followed by independent nation-states, have tended to use the existing local-government units as the basis of the modern local-government system. There is nothing difference-dissolving about these systems. Even if the state decides that local governments should approximate to each other legally, they cannot eradicate locality as a social fact, and are often precluded constitutionally from doing so.[77]

One might expect that the state-centric nature of Southeast Asia’s dominant-party, often militarized, political 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 insignificant or purely administrative detail.[78] Political power and administrative capacity in most Asian states were centralized to a great degree in pursuit of development goals, so that decentralization is in one sense an equal and opposite reaction to over-centralization. Asian developmental states (as they were dubbed by Chalmers Johnson and Alice Amsden), centralized power especially during the 1960s, 1970s and 1980s.[79] These states were lauded by the World Bank in 1993 for having done so.[80] As Kevin Tan argues, states need to acquire power before they can create development; this idea fits with the traditional Southeast Asian culture of respect for, as opposed to distrust of, government.[81] 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 centralization and requires a refocusing of attention on localism. This sits well with post-developmental state thinking, which sees a shift from a state that rows the boat to one that steers it – a ‘regulatory’ as opposed to ‘developmental’ state, as Yeh Jiunn-rong has argued in relation to Taiwan.[82] In a regulatory state bureaucracies need not exercise all functions in a kind of bloated centralism, and seem to have been increasingly comfortable, if they had a choice, with many powers being decentralized to local governments. Recentralization has to some extent occurred, but it has nowhere gone so far as to reduce significantly the powers accorded to local government. The regulatory state under decentralization uses central-local relations and fiscal or legal devices as its weapons of choice.

What then of pluralism in all of this?

In the centralization of power during the 1960s-80s pluralism was eclipsed in favour of an all-encompassing nationalism, expressed as nation-building. This was often achieved at the expense of cultural autonomy for minority groups and often by violent suppression, as was seen in Burma/ Myanmar’s chronic border wars and the cases of regional autonomy discussed earlier. Naturally there had to be a reaction against this loss of autonomy, and decentralization is one fruit of that reaction. In the Indonesian case the end of the new order period in 1998 ushered in a dangerous period of inter-ethnic violence and potential secessions; these were forestalled by decentralization to the lowest governmental levels – cities and regencies – as opposed to provinces where increased powers might simply fuel secession. Decentralization in the Philippines finds its origin in the 1987 Constitution, which defined democratic governance in the post-Marcos era. The entrenchment of local decentralization in the Constitution at Article X is the most definitive and structured of any in the region, and was fulfilled in the impressive Local Government Code 1991.[83]

 

Pluralism and the Vectors of the Modern Decentralizations

In this section we can now look briefly at the main decentralization processes in light of the overall question of how far they are implicated in the issue of pluralism. Decentralization has clearly contributed much to nation-building in Southeast Asia by allowing voice, expression and continuity to local identities, which proliferate as deep elements of culture amongst its teeming and extremely diverse populations.[84] Space precludes detailed exposition of these processes, and we will address only two examples – Indonesia and the Philippines.

Indonesia

Indonesia represents the most extensive exercise in decentralization in Southeast Asia, and one of the most extensive in the world. It was initiated in 2000 with local autonomy laws as part of the ‘reformasi’ movement. As a result powers have been devolved to 34 provincial governments, 508 regency or city governments, 6,543 districts and more than 83,000 villages.[85]

This decentralization was based on the principle that most powers should be exercised locally, with the central government exercising only powers that could not be exercised locally. The process has not unfolded very smoothly, with a good deal of confusion initially over powers and budgets, and a move towards recentralization of some powers when it was realised that the centre was too little empowered. The system of central-local relations has been challenged by an enormous proliferation of local laws which are of dubious legality or seem to conflict with other laws. Corruption has also been a challenge given the large number of new opportunities to exercise power. Policy coordination has also been quite problematical.

Decentralization has however ‘limited the domination of Java, given space for local cultural expression, and allowed for choice that has legitimated local authorities and regional elites.’[86] This question is not an obvious one to ask, but in the case of West Sumatra, a very extensive, diachronic study by Frank and Keebet von Benda-Beckmann details the way in which adat modes of governance have been revived under decentralization even though there is no express authority to do so. Interestingly enough in this example, the ‘revival of the nagari’ has led to a legislative attempt to deal with the issue at a national level with the enactment of the Village Law 2014. An interesting consequence of this law is that the distinction drawn earlier between administrative and organic local governments has been adopted into law: villages have a choice as to which they want to be.

Philippines

The Philippines has always been a more decentralized state than the others in Southeast Asia, and its current decentralization process, attributable to the 1987 Constitution’s attempts to prevent authoritarian government, like Indonesia’s, represents ‘one of the world’s most ambitious decentralizing initiatives.[87] The Local Government Code 1991, a law mandated by the 1987 Constitution, commenced the process of decentralization, and autonomous powers are now enjoyed by 81 provinces, one autonomous region, 38 independent cities, 145 ordinary cities, 1,489 municipalities, and more than 42,000 villages.

Although the Local Government Code is replete with provisions suggesting a good deal of autonomy and guaranteed funding, the main problem with the Philippine decentralization, as with the republic itself, has been the familiar one of oligarchical politics, newly empowered locally, and thereby entrenching the power of local elites.[88]  If the Philippines adopts a federal system, local governments would no doubt be much empowered. Although pluralism is not specifically mentioned in the constitution or the LGC, it is heavily implicated in references to autonomy, local accountability, and the protection of local government boundaries. This last guarantee is unique in Southeast Asia. A local referendum is required to approve any boundary alteration, suggesting that Philippine local governments are actually organic rather than administrative. They are further empowered to group themselves (not be grouped by higher authority) for common purposes.[89]

We can now revisit the questions raised earlier.

1.      Do the local government units as defined in local decentralization reflect different, traditional, ethno-cultural elements? Or is the local government system designed on the basis of mere administrative convenience? Are they – to simplify the matter - organic or administrative in nature?

In my view, the answer is that they are largely organic. Given that most of the local government units in Southeast Asia were laid down during the colonial period, rather than during a period of revolutionary redrawing of maps, the natural tendency was to take the line of least resistance by swinging into line with what was already there in terms of local government districts. In many cases local leaders simply continued to rule as before with some direction from the centre. The drawing of maps was an obsession of colonial powers, but redrawing of maps defining local government boundaries, as opposed to national boundaries, which were obviously of great importance. was not. The organic nature of local government units is reflected in modern constitutions, where one notices that they tend to go by their traditional collective nouns rather than transplanted ones (even in the English translations). This in itself is strong evidence for the retention of traditional units of local government.

2.      Did the legislator envisage decentralization as a recognition of these organic elements, as shown in the background and justification leading to decentralization?

The evidence adduced here seems to suggest that pluralism was very much in the minds of those who designed the constitutional and statutory provisions on local government or decentralization. We see that there is constant reference to self-determination, traditional communities, and the preservation of local customs and local culture. Such references refer not just to powers but also to duties.

3.      Do the powers actually devolved to local governments, or the manner of their exercise, reflect a recognition of these elements?

Here there is a real issue. Customary norms may cover many matters, but pluralism is most often expressed through adherence to discrete systems of personal law, as we have seen with the examples of regional autonomy. While it is feasible to operate a regional system of personal law it is impossible to give this function to local authorities as it would mean hundreds of systems of personal law. Therefore if the essence of the demand for pluralism relates to personal law, regional autonomy looks like a better solution than local decentralization. However, we are looking for evidence of powers to preserve and adhere to customs, and if one sees this as reflected in, for example, natural resource usage, agriculture, housing, village organization, public health measures, and so on, then these clearly do fall within local government powers. The devolution of powers obviously does in general reflect such concerns. One suspects that in addition, as in the case of West Sumatra, devolved units have tended to take devolved powers as a good reason to maintain or revert to customary norms where legally and practically possible, irrespective of specific hints in legislation; many customs will be merely a matter of informal social behaviour. This would include maintaining or reinstating local dispute resolution that could potentially deal with any issue of localized conflict.

Decentralization recognizes that central governments are not omniscient let alone omnipresent, and that in decisive ways local knowledge and local ownership need to find expression in terms of development, preservation of culture and heritage, and simply the identification of social, political and economic preferences based on local needs. The fact that is not designed purely to deal with pluralism seems to me an advantage rather than a reason to doubt its capacity to deal with pluralism.

Local decentralization, with all its missteps and faulty implementation, has persisted, and also been adjusted amid controversy, so that it has created by the 2020s a structure of local government, in almost every state across the region, that is effectively unmovable.

We have seen that one objection to my hypothesis that local decentralization offers a solution to the pluralism problem is that it cannot deal with personal law. An autonomous region can as we have seen have its own court system that may differ significantly from the rest of the nation-state. This is true in all the instances we have looked at except in Myanmar. Local governments on the other hand obviously do not run courts or legal systems, and do not have powers in respect of personal law. Therefore if the establishment of an asymmetric system of personal law is the immoveable requirement to satisfy minority insecurity, then local government will simply not satisfy this requirement.

Nonetheless, I would make two relevant points about ethnic culture and religion. The first is that culture or religion may well represent a flag under which grievances are collected rather than being the actual source of grievances. We have seen that region-based grievances relate not just to uniqueness of culture or religion, but also to economic issues, natural resources and under-development. The second is that there are numerous ways other than through enforcement of personal law that ethnic culture and religion may be expressed. The sense of local identity with which this paper began can be expressed through heritage preservation, buildings, festivals, markets, gatherings, and symbols of local history such as shrines, statues and even road names. It may also be expressed through education, social care, and other powers that increasingly are being devolved to the local level. Strongly autonomous local governments, confident in what they represent, can perform functions relating to all of these matters better than provincial or regional governments. It is always of course possible where appropriate to combine regional and local approaches to pluralism by organising special courts at the higher level. Customary dispute settlement on the other hand is invariably done at the village level. Accordingly, the argument from personal law does not seem to me to be at all conclusive.

Another possible objection is that decentralization has not been an unalloyed success in Southeast Asia, so why should we invest more hope in it?

Shair-Rosenfield studying the Philippines, for example, considers that ‘local governments have been relatively ineffective in reducing poverty, crime, and corruption, with mixed findings on service delivery and promotion of development’.[90] This reflects similar judgments right across the region.

I entertain many doubts as to the appropriate criteria for success in judging Southeast Asia’s decentralizations, given the counter-factual difficulty of addressing what would have happened without it. There is also a likelihood that outcomes have generally not matched intentions, as we have seen with the West Sumatra story. If we judge the success of decentralization by reference to legislative intentions as opposed to local assessment of outcomes, we will inevitably conclude that it has failed in important ways. Current literature indeed displays disillusionment with decentralization and emphasises a move towards recentralization in more recent times.[91]

Nonetheless, some issues need to be noticed. The scholarship on this topic tends to address what I have called ‘developmental decentralization’, which looks at economic and public-sector reform factors.[92] As Malesky and Hutchinson, introducing a journal special issue on decentralization in Southeast Asia, point out,

a common thread appears to be that hand-wringing about the missing economic benefits of decentralization may be misplaced, as the primary goals for decentralization may have been non-economic including responding to previous authoritarian periods and creating space for regional identities.[93]

The broad conclusion of the contributors to that special issue is that decentralization has got stuck in a halfway-house limbo, able to move definitively neither forward nor backwards. This appears to mean that the alternative to decentralization – namely massive recentralization - is even more unattractive. The ‘common thread’ referred to by Malesky and Hutchinson gives us the reason why. No Southeast Asian state has completely recentralized, and where recentralization has occurred it too has got stuck in a halfway-house. This is understandable if we look at the non-developmental purposes of decentralization. Recentralization has implications for democracy and for local self-determination, and states have found it difficult to move decisively towards recentralization. This leads to the conclusion that, despite its critics, decentralization does perform a function in respect of pluralism, localism and identity – the more intangible aspects of the project, and retains support primarily for this reason.

The critics of decentralization have performed the useful service of drawing attention to the problems it involves. These include the complexity of new arrangements, new authorities, and new central-local relations; fiscal problems; policy and legislative confusion; and inadequate expertise at the local level. It is noteworthy that none of the problems they list actually involve judgments about the function of decentralization with respect to pluralism. The correct conclusion seems to be, not that decentralization was a bad idea that needs reversing, but that its implementation has been defective. Part of this judgment is that the centre has not allowed decentralization to proceed very far or to have real impacts.[94] Revoking local powers risks losing the prize of decentralization, which is the nebulous benefit of self-determination and implicit recognition of pluralism. As Malesky and Hutchinson have put it, ‘[i]t is important to keep in mind the multi-dimensional decision-making landscape before drawing entirely negative conclusions about the merits of decentralization’.[95]

It needs to be recognized that in general terms the alternatives to decentralization contain many more problems than does decentralization and that the way to make decentralization succeed is to make many adjustments until its kinks are no longer apparent. Naturally this all takes time and mistakes have occurred and will occur. But abandoning the project completely is simply, it seems, not an option in view of the reasons why the project was commenced twenty of thirty years ago. These reasons were good ones and have not changed. Indeed, I would argue that to fulfil the self-determination objective of decentralization what is required is more but better, not less, decentralization; and decentralization that addresses pluralism as a major reason for decentralizing, rather than a make-weight for developmental objectives.

 

Conclusion

Addressing the issue of pluralism is never easy. Judging different approaches is also difficult. In this paper I have focused on territorial solutions only - regional autonomy and local decentralization - in Southeast Asia, a region where no answers are likely to travel especially well. However, a study of regional autonomy seems to show that its applicability is narrow in scope, confined to areas where compactedness bespeaks a clear and unique local culture in a region corresponding at least roughly to a plausible homeland. This is by no means the usual situation and regional autonomy always looks like the least damaging solution, designed to bring an end to violence rather than to enhance multiculturalism or nation-building.

By contrast legal decentralization offers greater promise. It is applied across the entire country. It embraces identity and self-determination at the community level, while offering improved democratic conditions and accountability going far beyond the once-in-five-years opportunity of national elections. It embraces pluralism where it exists without hampering governance in places where it does not. It affects the daily lives of communities in a way the central state can never do. It uses local knowledge, and tries to satisfy local priorities. Unlike regional autonomy it is also virtually ubiquitous across the region. To the extent it has not succeeded, to that extent one can argue that this is so because it has not often been tried with commitment and sustained political will. Pluralism and nation-building demand better solutions, but local decentralization offers a promising way forward.

 

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[1] Centre for Asian Legal Studies, Faculty of Law, National University of Singapore: lawajh@nus.edu.sg.

[2] Sung Won Kim, David Fidler, and Sumit Ganguly ‘Eastphalia rising: Asian influence and the fate of human security’ 26:2 World Policy Journal 53.

[3] Wen-Chen Chang, Li-ann Thio, Kevin YL Tan, and Jiunn-rong Yeh, Constitutionalism in Asia: Cases and Materials (Oxford: Hart Publishing, 2014), ch.2 (‘Constitutional Cultures in Asia’).

[4] H Lansdowne, P Dearden, and W Neilson (eds), Communities in Southeast Asia: Challenges and Responses (Victoria, BC: CAPI, University of Victoria, 2002), Parts I, II.

[5] D Engel and L Chua, ‘State and personhood in Southeast Asia: The promise and potential for law and society research’ 2 Asian Journal of Law and Society 211 (2015).

[6] Y Ghai, ‘Ethnicity and autonomy: A framework for analysis’, ch.1 of Y Ghai (ed), Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States (Cambridge: Cambridge University Press, 2000).

[7] This includes Malaysia, Indonesia, Singapore, Thailand and the Philippines. See the special issue on Islamic law and Islamic legal professionals in Southeast Asia, edited by M Cammack, M Feener, and C Lombardi, at 21:1 Pacific Rim Law & Policy Journal (2012).

[8] Aceh is a notable exception, even within Indonesia, as its shari’a courts have powers over criminal and commercial law: S Butt and T Lindsey, Indonesian Law (Oxford: Oxford University Press, 2018), at 205-8.

[9] TH Malloy and F Palermo (eds), Minority Accommodation through Territorial and Non-territorial Autonomy (Oxford: Oxford University Press, 2015); G Marks, L Hoogh, and A Schakel, The Rise of Regional Authority (Abingdon: Routledge, 2010).

[10] H Gerken, ‘Federalism all the way down’, 124 Harvard Law Review 4 (2010).

[11] For subsidiarity, see D Halberstam, ‘Federalism: Theory, policy, law’, ch.27 of M Rosenfeld and A Sajo, The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), 592 ff.

[12] C Koessler and F Palermo, Comparative Federalism: Constitutional Arrangements and Case Law (Oxford: Hart Publishing, 2017), 283.

[13] For asymmetry, see M Burgess, Comparative Federalism: Theory and Practice (Abingdon: Routledge, 2006), 209-25; and for autonomous regions, see Y Ghai and S Woodman (eds), Practising Self-Government: A Comparative Study of Autonomous Regions (Cambridge: Cambridge University Press, 2013).

[14] Some of course, especially in central Europe and the Balkans, go back only two or three decades.

[15] See, generally, B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 2006).

[16] S Butt and T Lindsey, The Constitution of Indonesia: A Contextual Analysis (Oxford: Hart Publishing, 2012), ch.6; D Horowitz, Constitutional Change and Democracy in Indonesia (Cambridge: Cambridge University Press, 2013), 71 ff.

[17] Butt and Lindsey, ibid., at 182 ff.

[18] Law No.18/ 2001.

[19] Law No.11/ 2006.

[20] H Heintze, ‘The autonomy of Aceh’, ch.10 of R Toniatti and J Woelk (eds), Regional autonomy, cultural diversity and Differentiated Territorial Government: The Case of Tibet – Chinese and Comparative Perspectives (Abingdon: Routledge, 2017).

[21] Qanun Aceh No.6/ 2014; see further, S Butt and T Lindsey, Indonesian Law (Oxford: Oxford University Press, 2018), at 205-8.

[22] Qanun Aceh No.6/ 2014, Art.72.

[23] Supreme Court Decision 60/P/HUM/2015.

[24] Above, n.21, Art.235.

[25] G Teubner, ‘Legal irritants: Good faith in British law or how unifying law ends up in new divergencies’ (1998) 61 Modern Law Review 15.

[26] Butt and Lindsey, above n.16, at 183.

[27] Above n.21, Art 256.

[28] Law on Special Autonomy for Papua Province 2001, 21/ 2001, ch.XI.

[29] S Butt, ‘Indonesia’s Constitutional Court and Indonesia’s electoral systems’, ch.9 of A Harding and A Chen (eds), Constitutional Courts in Asia: A Comparative Study (Cambridge: Cambridge University Press, 2018), 236-8.

[30] Tan Tai Yong, Creating ‘Greater Malaysia’: Decolonization and the Politics of Merger (Singapore: ISEAS, 2008).

[31] A Harding and J Chin, ‘Fifty years of Malaysia: Reflections and unanswered questions’, in A Harding and J Chin, 50 Years of Malaysia: Federalism Revisited (Singapore: Marshall Cavendish, 2014).

[32] Federal Constitution of Malaysia, Schedule 9.

[33] Ibid.

[34] Native Courts (Criminal Jurisdiction) Act 471/ 1991; Native Courts Enactment (Sabah) 1992; Native Courts Ordinance 1992 (Sarawak).

[35] A Harding, ‘“A measure of autonomy”: Federalism as protection for Malaysia’s indigenous peoples’ 46 Federal Law Review 587.

[36] L Robis, ‘The sun rises anew in Mindanao: Towards recognizing the Bangsamoro nation within the context of the Philippine Republic’, 59 Ateneo Law Journal 1117 (2015).

[37] S Yogeswaran, ‘Legal pluralism in Malaysia: The case of Iban native customary rights in Sarawak’, ch.6 of A Harding and Dian AH Shah (eds), Law and Society in Malaysia: Pluralism, Religion, and Ethnicity (Abingdon: Routledge, 2017).

[38] ‘No two-thirds majority support to amend Constitution’, The Star, 9 April 2019: <https://www.nst.com.my/news/nation/2019/04/477868/no-two-thirds-majority-support-amend-constitution> (accessed 1 November 2020).

[39] See, further, Harding and Chin, above n.31.

[40] Article X, ss.15-21.

[41] Republic Act No. 6734.

[42] Republic Act No. 11054.

[43] ‘Proposed charter for federal PH weakens senate, eyes Prime Minister’ (CNN, 9 January 2018): <http://cnnphilippines.com/news/2018/01/09/draft-proposal-federalism-PDP-Laban-senate-prime-minister.html> (accessed 1 November 2020).

[44] ‘Isabela city, Bangsa Sug, reject Bangsamoro Autonomy Law’, Manila Times, 19 January 2019, <https://www.manilatimes.net/2019/01/23/second-headline/isabela-city-sulu-reject-bangasmoro-organic-law/500921/>, accessed 7 November 2020.

[45] M Crouch, The Constitution of Myanmar: A Contextual Analysis (Oxford: Hart/ Bloomsbury, 2019), 20.

[46] 2008 Constitution, s.188, Sch.2.

[47] 2008 Constitution, s.56.

[48] Crouch, above n.45, ch.7 (II); see also M Crouch, ‘Ethnic rights and constitutional change: The recognition of ethnic nationalities in Myanmar/Burma’, ch.6 of A Harding and M Sidel (ed), Central-Local Relations in Asian Constitutional Systems (Oxford: Hart Publishing, 2014).

[49] E Malesky and F Hutchinson, ‘Varieties of disappointment: Why has decentralization not delivered on its promises in Southeast Asia’, 33:2 Journal of Southeast Asian Economies 125 (2016).

[50] A Harding, ‘The constitutional dimensions of decentralization and local government in Asia’, ch.3 of A Bedner and B Oomen (eds), Real Legal Certainty and its Relevance: Essays in Honour of Jan-Michiel Otto (Leiden: Leiden University, 2018).

[51] For this reason I use the term ‘developmental decentralization’; see, further J-M Otto and G Frerks, ‘Decentralization and development: A review of development administration literature’, Van Vollenhoven Institute, Leiden, Research Report 96/2 (1996).

[52] UNDP, Decentralized Governance for Development: A Combined Practice Note on Decentralisation, Local Governance and Urban/Rural Development (2004), 2.

[53] See United Nations website at <https://sdgs.un.org/goals/goal16>, accessed 7 November 2020.

[54] Emphasis added; L Eslava, Local Space, Global life: The Everyday Operation of International law and Development (Cambridge: Cambridge University Press, 2015), 54.

[55] Y Blank, ‘The city and the world’, 44 Columbia Journal of Transnational Law 875, 896.

[56] C Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (1983): ‘the shapes of knowledge are always ineluctably local, indivisible from their instruments and their encasements’ (p.4).

[57] Y Blank, ‘Localism in the new global legal order’ 47:1 Harvard International Law Journal 263, 276.

[58] M Turner (ed), Central-Local Relations in Asia and the Pacific: Convergence or Divergence? (London: Macmillan, 2000); Harding and Sidel, above n.48.

[59] A Harding, ‘Local democracy in a multi-layered constitutional system: Malaysian local government reconsidered’, ibid., ch.8.

[60] Thio Li-ann, ‘Constitutionalism in Illiberal Polities’, in M. Rosenfeld and A. Sajó (eds.), Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012).

[61] C Fombad, ‘Constitutional entrenchment of decentralization in Africa: An overview of trends and tendencies’ 62:2 Journal of African Law 175 (2018).

[62] 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 1 November 2020).

[63] Koessler and Palermo, above n.12, at 281.

[64] See, e.g., A Harding and P Leyland, The Constitutional System of Thailand: A Contextual Analysis (Oxford: Hart Publishing, 2011), ch.4.

[65] GW Jones and M Douglass (eds), Mega-Urban Regions in Pacific Asia: Urban Dynamics in a Global Era (Singapore: NUS Press, 2008), 1.

[66] M Evidente, ‘Planning law in the Philippines’, draft paper on file (Singapore, 2020).

[67] Harding and Leyland, above n.64, at 125.

[68] Ahmad Najib Burhani, above, n.62.

[69] Biddulph, R (2004) ‘The decentralization flower in Cambodian soil’, ch.7 of Nelson, MH (ed) (2004), ‘Local Government in Asia’, chs.6-10 of Thai Politics: Global and Local Perspectives, KPI Yearbook No.2 (2002/3) (Bangkok: KPI, 2004). Kuala Lumpur also, for example, has expanded far beyond Malaysia’s Federal Territory into the state of Selangor, but the law does not recognize the integrated nature of the conurbation, extending as it does over several local-government areas: Ainul Jaria Mydin, ‘Planning sustainable growth for the City of Kuala Lumpur’ (paper on file with the author, Singapore 2020).

[70] R Ishii, Farhad Hossain, and CJ Reeves, ‘Participation in decentralized local governance: Two contrasting cases from the Philippines’ 7:4 Public Organization Review 359 (2007).

[71] J Lin, Governing Climate Change: Global Cities and Transnational Law-Making (Cambridge: Cambridge University Press, 2018).

[72] See, e.g., on Indonesian history, F and K von Benda-Beckmann, Political and Legal Transformations of an Indonesian Polity: The Nagari from Colonization to Decentralization (Cambridge: Cambridge University Press, 2015), ch.6.

[73] E.g., in Malaya, see Harding, above n.59, 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.

[74] J-M Otto, ‘Indonesian opposition in the colonial municipality: A Minahasser in Bandung’, 2 Asian Journal of Law and Society 169 (2015).

[75] von Benda-Beckmann and von Benda-Beckmann, above n.72, at 14.

[76] Ibid.

[77] See above.

[78] C Johnson, Japan, who Governs? The Rise of the Developmental State (New York: WW Norton, 1995).

[79] Ibid.; 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.

[80] World Bank, The East Asian Miracle: Main Report (1993), at <http://documents.worldbank.org/curated/en/975081468244550798/Main-report>, accessed 7 November 2020. The report looked at eight high-performing Asian economies.

[81] Tan, above n.79, at 272.

[82] Yeh Jiunn-rong, ‘Democracy-driven transformation to regulatory state: The case of Taiwan’, ch.7 of T Ginsburg and A Chen (eds), Administrative Law and Governance in Asia: Comparative Perspectives (Abingdon: Routledge, 2009); K Jayasuriya, ‘Corporatism and judicial independence within statist legal institutions in East Asia’, ch.8 of K Jayasuriya (ed), Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions (London: Routledge, 1999).

[83] M Teng-Calleja, et al., ‘Transformation in Philippine local government’, 43:1 Local Government Studies 64 (2017).

[84] Chua and Engel, above n.5.

[85] Butt and Lindsey, above n.16.

 

[87] P Hutchcroft, ‘Colonial masters, national politicos, and provincial lords: Central authority and local autonomy in the American Philippines, 1900–1913’, Journal of Asian Studies, 59(2), 277 (2001); R Casis (ed), The Local Government Code: An Assessment (Diliman: Law Complex Printery, University of the Philippines, 1999); D Gatmaytan, Local Government Law and Jurisprudence (Diliman: University of Philippines College of Law, 2014).

[88] R Ishii, Farhad Hossain, and CJ Reeves, ‘Participation in decentralized local governance: Two contrasting cases from the Philippines’ 7:4 Public Organization Review 359 (2007).

[89] 1987 Constitution, Article X.

[90] M Shair-Rosenfield, ‘The causes and effects of the Local Government Code in the Philippines: Locked in a status-quo of weakly decentralized authority?’ 33:2 Journal of Southeast Asian Economies 157 (2016).

[91] E.,g., M Lane, Decentralization and its Discontents: An Essay on Class, Political Agency, and National  Perspective in Indonesian Politics (Singapore: ISEAS, 2014).

[92] See special issue on decentralization in Southeast Asia, at 33:2 Journal of Southeast Asian Economies (2016).

[93] Above n.49.

[94] Ibid.

[95] Ibid., at 132.