Article Info: Received : 02 – 07 – 2019 http://dx.doi.org/10.18196/iclr.1210 Revised : 02 – 08 – 2019 Accepted : 20 – 08 – 2019 Volume 1 No 2, June 2019 Unitary, Federalized, or Decentralized?: P-ISSN: 2655-2353, E-ISSN: 2655-6545 The Case Study of Daerah Istimewa Yogyakarta as The Special Autonomous Regions in Indonesia Ming-Hsi Sung 1, Hary Abdul Hakim2 1, 2 Department of Financial and Economic Law, Asia University, Taiwan E-mail: [email protected] 2 [email protected] 1Assistant Professor & Director, East Asia Law Center, Department of Financial and Economic Law, Asia University, Taiwan P 2Research Assistant, PAIR Labs; Assistant Research Fellow, East Asia Law Center, Department of Financial and Economic Law, Asia University, Taiwan Abstract granting autonomy to Daerah Istimewa Yogyakarta as a case study to The professed constitutional unitary argue for the latter, asserting that the case merely exemplifies the state claim has been highly debated. decentralization characteristic embedded in the Constitution. This paper Some argue that Indonesia shall be a first examines the political features of federalism through a historical unitary state in name, pursuant to legal perspective, showing that the current state system in Indonesia is Article 1 Para. III of the Indonesian decentralized but not federalized. This paper concludes that the Constitution, but Constitutional recognition of Daerah Istimewa Yogyakarta as an autonomous region is reforms after 1998 when the autocratic simply a practice of constitutional decentralization. This paper also President Gen. Soeharto stepped down higlights that with recent political development, echoing that the granted broad authority to local decentralization theory is not a product of legal interpretation, but a government, leading Indonesia to a constitutional and political reality. quasi-federation situation in practice. Keywords: Special Autonomous region; unitary state; Federal system; On the other hand, some stick to the Decentralization; Yogyakarta; Keistimewaan aforementioned Article, insisting that decentralization embedded in the 1. Introduction Constitution Article 18 Para. II is by The issue of special autonomy region in Indonesia no means making Indonesia federal. This article takes the Act No. 13 of has recently been a hotly debated issue of Indonesian 2012 on Special Region of Yogyakarta Constitution. Through the Act No. 13 of 2012 (Keistimewaan (the Daerah Istimewa Yogyakarta) Daerah Istimewa Yogyakarta, the Daerah Istimewa Yogyakarta 104 Indonesian Comparative Law Review Special Autonomy Act, KDIY hereinafter) Meja Bundar (KMB-Round Table Conference) Daerah Istimewa Yogyakarta (Yogyakarta in 1949 with the Dutch Colonial Authorities Special Autonomy Region, DIY hereinafter) and Bijeenkomst voor Federaal Overleg (The has been granted special autonomy, and Federal Deliberation Assembly, BFO thereby DIY possesses the special power to hereinafter).2 conduct her own governmental system, and RIS did not last long. RIS dissolved to stipulate rules specifically for the DIY on August 17, 1950, and Indonesia was region. Nevertheless, this autonomous rebuilt after combining regions from Sabang power creates a conflicting situation in to Merauke. Thus, since 1950, Indonesia has Indonesia—despite the fact that Indonesia officially returned to a unitary state system constitutionally proclaims a unitary state and replaced the 1949 Federal Constitution status, she otherwise has a special region of the United States of Indonesia by the with a separate and distinguished Provisional Constitution of 1950 (UUDS 1950 autonomous governmental system. Whether hereinafter) on 17 August 1950. However, The or not the situation has brought any impact Provisional Constitution (UUDS) is or change to Indonesia’s claimed state status, temporary in nature, since Article 134 of the and what causes Indonesia as a unitary state UUDS mandates that "as soon as possible to adopt a seemly ambivalent special the Constituent Assembly and the autonomy system, are two issues Government should establish the worthwhile for a social-legal discussion. Constitution of the Republic of Indonesia Referring to legal historical review, which will replace this 1950 Constitution". the fact that Indonesia is a unitary state after Because the UUDS once made the 1945 Constitution entered into force on Indonesia federal, the appeal for Indonesia August 18, 1945 is undoubted. The to adopt a federal state system has remained Constitution clearly declared that “the after 1949.3 For example, Amien Rais, as a Indonesian State is a unitary State in the reform figure and co-founder of the form of Republic” (Article 1 para. (1) of the Indonesian People’s Consultative Assembly, 1945 Constitution). 1 However, this fact proposes Indonesia to become a federation became disputed later. On December 27, in order to avoid the breakup of the 1949, Indonesia was forced to change into a federation, the Republic of the United States of Indonesia (RIS hereinafter), which consists of 7 states and 9 autonomous regions, 2 Jakob Tobing, Unitary State of the Republic of according to the agreement of Konferensi Indonesia, Jan 6, 2015, Institute Leimena, available at http://leimena.org/eng/2015/01/06/unitary-state-of- the-republic-of-indonesia- 1 Indonesian 1945 Constitution Article 1 (1) The State 1/?fbclid=IwAR15haIB9z8NUNmARfcCjAd_WrVaG4 of Indonesia shall be a unitary state, with the form of a 97GWGafvDq39ShtjVJnGPijmWeLSs (last visited Jul Republic. (2) Sovereignty is vested in the people and 27, 2019) implemented pursuant to the Constitution. (3) The 3 Rizang Wrihatnolo, Federal State or Unitary State State of Indonesia is a state based on the rule of law. (Indonesia, Between The Choices of Federal State, See Unitary State and Decentralization), avalaible at http://www.unesco.org/education/edurights/media https://www.bappenas.go.id/files/7013/5228/2209/ /docs/b1ba8608010ce0c48966911957392ea8cda405d8.p rizang__20091015092930__2292__0.rtf (last visited Jan. df (last visited March 1, 2020) 30 2020). 105 Vol. 1 No.2 / June 2019 Indonesian state.4 After all, the federal state establishing a new paradigm in the system was a cogent alternative to solve the implementation of regional autonomy, since nation’s long lasting disintegration and the laws have provided regional autonomy separation problems.5 broadly in accordance with democracy, community participation, equity, and Moreover, in Indonesia, regional consideration, to provinces and various autonomy (otonomi daerah, or "Otda") is regions.9 But using the term autonomy by no simply a loose term used by government means indicates that Indonesia would adopt ministers and the media to describe the federalism in a strict sense. delegation of authority and functions from the central to regional governments, as Decentralization has been provided promulgated in Law No 22 of 1999. Law 22 to explain the aforementioned transfer of of 1999 on Pemerintahan Daerah (Regional authority. Although since the Dutch and Governance)6 and its partner, Law No.25 of Japanese colonial period up to the early 1999 on the Perimbangan Keuangan Antara Independence in 1945, decentralization has a Pemerintah Pusat dan Daerah (Fiscal Balance constitutional foundation in Indonesia as between the Central Government and the mentioned in Article 18 (2) of 1945 Regions).7 These two laws accommodate the Constitution “(2) The regional authorities of framework for transferring authority, the provinces, regencies and municipalities human and financial resources from the shall administer and manage their own central government to the regions, 8 affairs according to the principles of regional autonomy and the duty of providing assistance (Tugas Pembantuan)”,10 this paper 4Kompasiana, Kenapa Sistem Negara Federasi Tidak argues that the recent policies regarding Cocok untuk Indonesia?, available at https://www.kompasiana.com/dendy166/59a47e2e7 Indonesian decentralization/regional dd0952ca43f7202/kenapa-sistem-negara-federasi- autonomy need to be understood in a tidak-cocok-untuk-indonesia (last visited Jul 27, 2019) broadened historical, political and legal 5 Ricklefs, M.C. (2008) [1981]. A History of Modern Indonesia Since c.1300 (4th ed.). London: MacMillan. setting. Indonesia by no means consists of ISBN 978-0-230-54685-1. P. 365-366. states under the state. With the existence of 6 This law sets up the framework for regions to great diversities within and among the regulate and manage their own interests. Therefore, this law is in accordance with Article 2 paragraph 1 of regions, Indonesia has to take the territorial the Constitution, which provides: "The territory of the decentralization system as a central value in Unitary State of the Republic of Indonesia is divided order to give the central authorities to into Provincial Regions, District Regencies and Municipal Areas that are autonomous" Law 22 of 1999 manage regions and provinces in this available at country. Those regional governments in fact http://dpr.go.id/dokjdih/document/uu/UU_1999_2 2.pdf (last visited March 1, 2020) indonesia.org/story/what-regional-autonomy (last 7 After the implementation of regional autonomy, the visited Jul 27, 2019) regions may get 70% of the revenue of the management of their own natural resources to be 9 Meiza and Simanjuntak R., 2018, Pengaruh utilized for the advancement of their own regions. Desentralisasi terhadap Masuknya Investasi pada 32 Law No.25 of 1999 available at Provinsi di Indonesia, Simposium Nasional Keuangan http://dpr.go.id/dokjdih/document/uu/UU_1999_2