One of the major criticisms of human rights is that its advocates often use the concept, language and methods behind it in a way that monopolises emancipatory agendas.1 One case where this critique cannot be legitimately levelled is the discourse surrounding the recent adoption of a decentralized system of government in Indonesia, known as Otda (from Otonomi Daerah, meaning “Regional Autonomy”).2 This “near- revolutionary” 3 shift of power has involved the devolution of significant amounts of fiscal, legislative and administrative authority from the Central Government to legislatures and executive governments in Indonesia’s 33 provinces (provinsi) and 465 districts/municipalities (kabupaten/kotamadya).4 Otda has, therefore, affected the lives of an incredible number of people: West Java Province, for example, is home to over 39 million - more than the total population of Canada - and one of its districts, Bandung, has a population of over four million - approximately the same as that of Ireland. Mentions of human rights, however, have been conspicuous by their absence from Otda discourse.
In fact, since James Madison’s 1788 analysis of the “double security”for the “rights of the people”brought about by dividing power between two levels of government,6 very little attention has been paid to the relationship between human rights and decentralized forms of government.7 This is particularly so in the case of developing countries. Human rights do not rate a mention, for example, among the ten decentralization themes mentioned on the World Bank’s Decentralization Homepage. Page 179 The United Nations, for its part, has made contradictory references to decentralization. In 1999, for example, the term “decentralization”managed to slip inconspicuously into official UN human rights parlance when the Committee on Economic, Social and Cultural Rights stated that national strategies for the right to food require “full compliance with the principles of accountability, transparency, people’s participation, decentralization, legislative capacity and the independence of the judiciary.” 9 In 2006, however, the Commission on Human Rights said, in considering the practice of torture in China, that “at the provincial and municipal levels, the [positive] efforts of the central Government… are significantly hampered by the degree of ‘localism’inherent in policing and criminal procedure.” 10 Although the United Nations Development Program has, to its credit, attempted to introduce some coherency into its approach to the relationship between human rights and decentralization,11 these efforts have been very limited.
The limited and contradictory linkages being made between human rights and decentralization are surprising given that decentralization has “emerged as one of the most important trends in development policy,” 12 to the point where perhaps only economic liberalization remains a more pervasive policy reform in the developing world.13 In 2005, for example, the African Development Bank held a conference on decentralization where it expressed a “growing recognition”that decentralization is a “critical component”of its agenda.14 Worldwide, approximately 80 percent of Page 180 developing countries are experimenting with some form of decentralization - a percentage which is potentially even higher for countries with populations over five million.
This article aims to stimulate discourse on the relationship between human rights and decentralization by examining the relationship between international human rights and Otda. The central argument is two-fold: firstly, that analysing Otda from an international human rights perspective can shed significant light on how Otda is affecting the well-being of people in Indonesia; and secondly, vice versa, that analysing international human rights from an Otda perspective can reveal important limitations and possibilities of the contemporary international human rights movement. The argument proceeds as follows: Part II contextualises Otda by discussing important historical, political and economic considerations surrounding its introduction; Part III outlines the legal framework for the implementation of Otda; Part IV examines several international human rights which have clearly been affected - in positive, negative and mixed ways - by the introduction of Otda; and Part V discusses ways in which Otda highlights some of the challenges facing international human rights. Some concluding remarks are then offered in Part VI.
2. The Historical, Political and Economic Context of Otda
A
Decolonisation, Hyper-Centralisation and the F-Word
Indonesia is the archetypal “imagined community.” Comprising almost 12,000 inhabited islands which spread across a distance further than from Baghdad to London, the territory of modern Indonesia was not fully united until it was colonised as the Dutch East Indies.19 After more than 300 years of colonial rule, the Dutch lost control of Indonesia to the Japanese during World War II and at the end of the war Sukarno declared independence on behalf of Indonesia. The independence war which ensued as the Dutch attempted to regain their colony was marked by Dutch calls for federal governance in the archipelago.20 When the Dutch eventually agreed to transfer Page 181 sovereignty to Indonesia in 1949, it was to the federal United States of Indonesia. In a manner analogous to the African National Congress’s misgivings about federalism in post-Apartheid South Africa,21 great suspicions arose throughout Indonesia about possible Dutch divide-and-rule strategies behind federalism - suspicions that persist today.23 In 1950, President Sukarno - setting a precedent later followed in several other newly independent countries - dissolved the colonially bequeathed federal system and established a unitary state with a strong central government.
Sukarno’s deep mistrust of federalism and his centralised approach to governance paved the way for the hyper-centralisation of Indonesia that occurred during the reign of his successor, General Suharto. Between 1966 and 1998, Suharto’s New Order regime created one of the world’s most centralized countries.26 All major decisions were made by the Central Government, regional civil servants were appointed by - and often simply sent from - Jakarta and Regional Parliaments (Dewan Perwakilan Rakyat Daerah) were simply advisory bodies. The Central Government collected 93 percent of all government revenues and spent 90 percent of this itself. Regions were not permitted to develop linkages with each other - everything, even plane flights, had to go through Jakarta. As the Centre was the island of Java, this hyper-centralisation meant turning Page 182 the nation into “Greater Java” - both culturally and demographically.33 It was taboo to mentioning the “f-word”(ie federalism).
The regions were not always willing partners in the hyper-centralisation project. The use or threat of state violence frequently became Suharto’s tools of choice to hold the heterogeneous state together.34 As in the Philippines, Kenya, Mexico and Chile,35 enhanced centralisation was accompanied by increased authoritarianism; the New Order ultimately became a perpetual “state of emergency.” 36 Civil society was suppressed and human rights abuses were widespread, particularly in areas where support for the unitary state was weakest.
B
After the New Order: Reformasi and Otda
In the wake of the 1997 Asian economic crisis, and without the same enthusiastic support from his Western backers as he had enjoyed during the Cold War,38 Suharto was forced to step down. The end of the New Order brought about a wave of democratisation, known as Reformasi. One result of Reformasi was the ratification of the international human rights Covenants and the adoption of a range of human rights Page 183 legislation.40 The International Monetary Fund and other international actors used this democratic euphoria and the international community’s post-crisis financial leverage to lobby for a more decentralized form of government in Indonesia.41 The main motivating forces behind this were probably a desire to see a smaller role for the state in the economy42 and to situate government in a space where the newly emerging civil society could “work its magic better” .43 It was clear that the perceived inability of the Central Government to achieve these goals was a larger consideration than the perceived ability of the regions.44 For Indonesian policymakers, however, the introduction of Otda was less about good governance and much more about “saving the nation” 45 - and the ruling party, Golkar - from political upheaval and a potential Balkanisation.47 The economic crisis had meant that the Central Government could no longer purchase the loyalty of the regions, particularly those who were seeing little returns for their rich natural resources, so devolving authority - and the...
