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 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.[73] In the Dutch East Indies in the early 20th
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.
[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.
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