UNISIA, Vol. XXXIV No.

76 Januari 2012

TOWARD FEDERALISM; A CONSTITUTIONAL SOLUTION

FOR INDONESIA?

Masnur Marzuki

Fakultas Hukum Universitas Islam Indonesia

[email protected]

Abstract

From the beginning history of modern Indonesia, federalism was mostly

considered Dutch political design to preserve the fading power ofcolonial in the country.
Most Indonesian viewed federalism as Dutch's political hidden agenda to maintain its
influence. Therefore, the challenge was directly responded after the post-transfer of
sovereignty and independence movement toward a Unitarian state as it exists today. In
contrast, with the fall of the Soeharto's regime, some commentators view federalism as
a new formula for tackling multi level crisis encountered. Despite fact that federalism
seems to have long road to be adopted in Indonesia, this paper argues that federalism,
as a system of government, would become best suited political system for Indonesia
particularly in managing diversity and tackfing multi crisis.
Keywords: Federalism, Unitarian, State, Diversity and Constitution

INTRODUCTION . .

In explaining federalism, it will be surely taking many words if it Is presented in various

perspectives from commentators and scholars. That Is why this part will only outline the idea
and scope of federalism particularly in deep societal divisions. It may not fully represent a
complete theoretical framework of federalism but at least it can be viewed as an attempt to
elaborate theoretical framework of federalism in general.
The idea of federalism primarily means protection of pluralism and the rights of the
individual against an over-powerful government. Despite its popularity in Constitutional law
subject, scholars seem to have a disagreement over the definition of the nature and the
conceptualization of federalism. A constitutional expert, Duchacheck (1970 : 21) says ihaV, "the
term itself is unclear and controversial. It is often used to describe a process of combining
territorial communities that had previously not been directly joined... In addition, federalism is
also a term used to describe the result or the tools of the federalizing process—a constitutional
federal system and its institutions."
Notwithstanding to the disagreement among scholars, federalism is primarily a concept
which underlies the distribution of powers between central government and other constituent
governments iniorder to protect the freedom and prosperity of citizens. So the next question is
whether the countries should base their constitutions on federalism as a concept or just retain
previous tradition which has been inherited since the colonial period. Another option is what
Daniel Elazaar (1998:302) describes federalism as 'a particular kind of relationship among the
participants in political life'. In this feature, federalism seems as covenant.
In relation to this issue, in her review of European experience, Cheryl Saunders as
quoted by Joachim Jen Hesse and Vincent Wright (1996 : 378) argues that 'federalism is
not created by federal institutions and rules alone, but depends also on attitudes towards the

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process of government. Thus, some of the advantages of federalism may be obtained without
traditional federal structures. Equally, they may be lost in a country which otherwise is federal
inform.'

Another question might arise is why people choose federalism? Peter H. Schuck (2006:
5-12) outlines at least three significant contributions that can be devolved in a federal system.
First, federal system allows the control of physical resources. Then, federal system enables
governments to manage diversity, culture and ethnicity. Thirdly, federalism also allows the
control of laws, politics and public functions.
As an example, Australia has at least there are two basic reasons to adopt the concept
of federalism. Sarah Joseph and Melissa Castan (2006 : 12) argue that:
Why is Australia a federation? One reason is historicai: a promise of federation was more
likely to bring the self-governing colonies together than a pact to cede all power to a central
government. There are also philosophical arguments in favor of federalism. Federalism,
like the doctrine of the separation of powers, provides for the decentralization of power, and
thus acts as a check against abuse ofpower and the development of unwieldy bureaucracy.
Decentralization allowsfor more local participation in decision-making.

FEDERALISM AND MANAGING DIVERSITY: SOME LESSONS FROM SOUTH AFRICA

AND AUSTRALIA

This part will concentrate on the question to what extent federalism would provide an
effective constitutional solution. It will also come with analysis on how federalism potentially
offers a valuable constitutional solution in a profoundly divided society with presenting examples
from particular countries such as South Africa and Australia. As a comparator, Australia might
be not as good as Africa. However, the similarity in managing diversity would be taken as an
entry point to put Australia as a comparator.
It is often difficult to answer why countries choose federalism to cope with political crisis
and ethnic conflicts. Nevertheless, in some countries, political crisis due to ethnic conflict is
always the primary reason for choosing and implementing federalism. In relation to this issue,
Peter H. Schuck (2006) says that among the principal reasons for establishing of federal
systems, minority group demands and the management of diversity of civil society appears to
be the most important.
Unlike South Africa where federal arrangement seems problematic from its beginning
even tough in the 1996 Constitution, there is no word, "federal" clearly mentioned). Australia
can be uniquely viewed from the predominance'of its federal form of government. From the
historical view, Australia develops Its federal system from imperial auspices. Australia retained
the Westminster parliamentary tradition inherited from the United Kingdom. However, the
Australian federation, which is often classified as "Parliamentary federalism", was influenced
significantly by the United States.
Australia has developed the concept of federation significantly and has also shown Its
commitment to strong States and limited role of central governments in practice as Wolfgang
Kasper (2007) comments in his article "Australia's Hollow Federalism: Can We Revive
Competitive Governance?". However, some commentators such as Douglas V. Verney, Sarah
Joseph and Melissa Castan (2006) argue that the development of Australian Federation still
faces thread from the central government which persistently 'tries to centralize powers'.
In South Africa, federal system is relatively new. South Africa has just been launched
after the proposal of government for a new constitution since 1994. It is undeniable that South

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Africa is a country which exhibits cultural diversity. South Africa is also among countries that
select federalism as well as decentralization because of ethnic conflicts.
As a consequence, South Africa needs to address many problems including political,
historical and geographical challenges. In terms of historical challenge. South Africa, to some
extents, may suffer the political impact of the colonizers to the constituent groups. Besides
that, South Africa which is often categorized as a new young democratic country may also
experiences inequalities among communities interms of development, resource empowerment,
territorial size, and population, not to mention conflicts among the communities over access to
good public services.
More importantly, in relation to the geographical issue. South Africa has relatively a big
task to manage various problems with the length and breadth of the country. Evidently, many
studies show how the central government seems to lack infrastructural power to efficiently
implement their authority. Besides that, in a deeply divided societies like South Africa, the most
significant problem might arise is how to cope with the issue of majorities and minorities rights.
In spite of models of organization for political states, whether they adopt federalism or not, the
potential tendencies towards domination among majority groups in societies often comes as a
big issue.
Indonesia, to some extents, has similarity with both previous instances in terms of
diversity and demographical factors. Consequently, it may become relevant for Indonesia to
adopt such system even though federal division of powers is potentially open to ambiguity.
Nevertheless, with a constitutional promulgation, the division of power between central and
regional governments can be considerably implemented.
FEDERALISME VERSUS UNITARIANISM: THE MANAGEMENT OF DIVERSITY ISSUES IN
INDONESIAN CONTEXT

What makes federalism differs to other system such as a unitary system is that how
constitution manages to regulate the division of political power. In a unitary system, division of
authorities or political power only depends on legislation matter, in contrast, a federal system
mainly set up the division of political power between local and central government in constitution.
According to Hans Antlov (1999), it is actually not simple to clarifythe difference between
a unitary and a federal state. He then questions: did anyone notice that Belgium or South Africa
a few years ago gave up their unitary status in order to become federations? And do we think
it strange that sovereign nations in Europe are willing to delegate some of their powers to the
Council of Ministers and the Parliament of the European Union?'
However, it is worth mentioning that generally the difference between federalism and a
unitary system lies on how the division of power is constituted. While a unitary system tends to
promulgate the division of power in some legislation, federalism seems to regulate it evidently
in the Constitution over the division of powers between central and local governments.
It might be interesting to propose a description and analysis of a basic question; what
is the political system best suited for a country with diversity like Indonesia? . Is federalism
the political system best adaptable to handle deeply divided societies or just unitary system
like implemented at the moment? Even though with this limited objective, it is still important to
answer the question whether federalism, as a system of government
To begin with, it is important to note that the fundamental issue about diversity is
how, in the midst of deeply divided societies within a state which seems to face difficulties
in establishing and maintaining democratic government, dilemmas concerning a potential

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clash between majority and minority will be managed as proposed by Arend Lijpart (2004).
Before exploring the issue, it is important to feature benefits and contribution federalism and
Unitarianism toward the management of diversity.
The unitary system where principally grounds sovereignty in the nation as a whole,
would not provide an effective solution toward the management of diversity because central
government representing a unitary nation has the right to delegate powers downward to
regional governments but the regions have no right to any of these powers. The policy will be
mainly influence by the political will of central government and it often ignores the local variable
such as diversity in culture and ethnicity. On the other hand, a federal system which establishes
the division of political power in constitution will allow more opportunity for local government to
tackle local conflicts because usually local governments has more better understanding about
the features and dominant factors in the communities.

It is undeniable that Indonesian political structure and institutions is massively influenced

by facts of cultural diversity. Indonesia is a country which comprises a mixed picture of patterns,
politics, language, cultural groups and religion. In terms of ethnicity, there are more than 490
ethnic groups in Indonesia. Besides that, it is also important to mention that the colonial
regime, the Dutch, also influence the structure of administration and politics where authorities
proceeded frohn the top downward.
• From the beginning of Indonesian independence, political debate on ethnic conflict
and institutional design falls into two fiction; supporters of federal state and those who favor
integration. Integration and Unitarian supporters favour a single identity that is coterminous
with the state. On the other hand, federalists lead to more flexible legal arrangements that
recognize and empower ethnic diversity in a federal conception.
According to integrationists, a unitary Indonesian is final political decision which may
lead to stability both in politics and economics. Moreover, the supporters of Unitarian system
also present the possibility of disintegration when federalism would be adopted. The federalists
reply that such strategies are more likely to produce instability because group differences,
diversity, difference in natural resources. They suggest, instead in various strategies, to adopt
a federal state that will accommodate multiculturalism, or pluralist federation.
Given the history of constitutional order and- political journey, it was not surprising that
fact of geography and the existence of pluralism and diversity have influenced ah objective
rational-choice option for deciding which system would be adopted. Within this framework,
federalism and unitary system has been major debate since long time ago. At the beginning of
independence period, federalism was considered common enemy because most Indonesian
people believe that the creation of federal states which was designed by the Dutch only aimed
to preserve the political power and the influence of the Netherlands.
Thus, a Unitarian state was more likely to be adopted rather than federalism. It is equally
important to say that the Unitarianism has clearly been promulgated in the Article I, Section
I, of the 1945 Constitution, "The Indonesian State is a unitary State". Until now, the Unitarian
system is still maintained as promulgated in the new Indonesian Constitution.
However, Indonesia ever adopted the federal, system as a Dutch imposition in 1949-
1950. According to Charles (1963 : 317), federalism adopted in short period was not enough
to prove its efficiency. Moreover, the practice of federalism was significantly influenced by the
Dutch. This situation led to antipathy toward the federalism itself. Charles (1963 : 317) further
notes that: "....soon after the transfer of sovereignty in December 1949, a number of minor
revolts broke out in different parts of the country, these were held to confirm the Republic's
suspicions that Dutch interests were trying to subvert the new regime, and the opportunity

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was taken inAugust 1950 to replace the federal by a unitary constitution. Had the Indonesians
instead introduced a more soundly based federal structure, it is possible that many of the
country's subsequent difficulties might have been avoided. But, apart from the Government's
conviction that the needs of security made a centralized constitution essential, the extreme
economic dependence of Java upon the outer territories probably ruled out any serious
possibility of Indonesia's willingly accepting a federal constitution in the years immediately
following independence."
Nevertheless, itIs equally clearthat the briefly adoption ofthe federal system, which was
constructed to prevent centralized structures of control, has marked the Indonesian political
history. The constitution's federal framework has given an opportunity for local government to
execute responsible autonomy. More importantly, the federal system was often viewed as an
effective too! to manage diversity. It is not surprising many scholars who engage with political
and constitutional theory argue that federalism can be utilized to prevent potential social and
political conflicts in a society with diversity.
Eghosa E. Osaghae is one of commentators who take similar position. Osaghae (2004)
notes that:

Not surprisingly, one of the more notable responses to the challenge, which doubled as a
strategy of state reconstruction in view of the developments already outlined above, was the
resurgence of federalism as a device for managing diversity—resurgence because federalism
had featured prominently in the fragile transitions of the immediatepost-independence period
when issues of viability, stability and survival stared the newly independent states in the face.
The nature of the articulation of the problematic of diversity in particular made federalism an
appropriate contemplation.

In Indonesian context, federalism which is often viewed as most suitable for

accommodating diversity has been always a topic of discussion particularly during the
beginning of Reformation era. Unfortunately, as Jusuf Wanandi (2002) notes in his article
entitled "Indonesia: A Failed State?", the issue and debate over federalism 'never seriously
considered constructing one because of the overwhelming depth of diversity'. It seems to me
that the attitude toward federalism debate and discussion is rather paradoxical. It is simply
because iffederalism may be considered as the most suitable for providing solution in diversity
management, it must be explored and illuminated proportionally and responsibly.
In relation to this issue, Rizan Wrihatnolo (2007) says that:
Federalism is typified by the existence of regional autonomy towards the center. Although
there is interdependency between the center and the regions, the center will never dissolve
the regions. On the other hand, the regions cannot deny the importance of the center, in the
unitary system, it does not mean that the regions do not have the rights at all to determine their
policies. Then again, the central government has a verystrong control on the regions'policies,
and it also decides the share for regional development - how much the central government wiii
get and how much will be left for regional development.
I

Amien Rais might be the only important political figure who openly advocates the
concept of federalism. Having already established a political party in 1998, Amien Rais was
likely impressed by the concept of federalism to tackle multi-crisis faced in Indonesia. With its
great economic and cultural diversity, Amien Rais believes the particular form of federalism
would contribute to good management of diversity itself. Additionally, with this in mind, he
hopes by advocating federal system he will gain more voters in the 1999 general election.
Interestingly, support to the adoption of federalism in indonesia was also openly voted
by some local governments. With the new political framework after the fall of Soeharto's

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regime, some local government has gained more courage to voice their aspiration to the
central government. In fact, local legislators in South Sulawesi fully supported the proposal for
a federal system after student demonstration demanded for independence {Gatra, November
6,1998), In another region, the East Kalimantan even asserted that federalism must be put into
consideration in order to maintain national integration.
Meanwhile, Ryas Rasyid and Andi Mallarangeng (1999) both agree to maintain the
unitary system by explaining that federalism was almost impossible for Indonesia because
federal nations could only be structured "by independent nations deciding to come together to
form a federation." Similarly, prominent Governor of Yogyakarta, Sultan Hamengku Buwono X,
has shown his resistant toward the implementation of federalism. He claimed that Indonesia
would collapse as local governments declared its independence and formed a state based on
ethnicity and religion.
At last, responding polemic between proponents and opponents of federalism, the
Regional Representative of thd People's Legislative Assembly {Majelis Permusyawaratan
Rakyat) opened a forum to discuss federalism versus a unitary state in December 1999. The
result of the forum was that the Aceh and West Papua province representatives doubted the
stability of the unitary state ifa federal system had been formally adopted. Other representatives
visibly opposed federalism except representatives of Riau and East Kalimantan that urged a
federal form.

The second amendment of the Indonesian Constitution also aims to accommodate the
tendency to avoid federalism in one hand. On the other hand, the constitutional provision
may provide sort of opportunities for some region to implement a quasi-federalist approach.
National Democratic Institute in 2000 reported that the principle that regions may act on any
subject that is not reserved by law to the central government. There is a constitutional provision
for special legislation and/ or special status for particular provinces. There is a requirement for
justice and equityand regard to local distinctiveness and diversity in the financial arrangements
for regions. From the constitutional provision it can be concluded that, the movement toward a
quasi-federalist set of institutions, in fact, has strengthened this integrationist core.
According to Alfred Stephen (2000), a state with a federal system is often considered
a characteristic of a democratic nation. His thesis is that the federal state will develop the
democracy environment of a country. Through democracy, the development will be distributed
evenly. Then, if a country wants to adopt an ideal federal state, it must imitate the United States
of America model of federal state.

Decentralization can be defined simply as a system where central governments disperse

power to other agencies of government or local governments. According to Eghosa E. Osaghae
(1990), decentralization can be classified into two types;
There are two kinds of decentralization. First, there is what may be calied discretionary
decentralization because decentralization is not constitutionally guaranteed. Rather, it depends
wholly on the grace or convenience of the central authority. This is the prevalent kind of
decentralization in unitary systems. Second, there is constitutionallyguaranteed decentralization
in which dispersal of power to constituent units is obligatory. This kind of decentralization falls
within the ambit of federalism, the implication being that 'Ihe regional government's share of
power in a federation is relatively large compared to that in unitary states.

However, it is must be admitted that the issue of political process of decentralization,

to some extents, has not yet been comprehensively explored in the literature. In relation to
this issue, Bernard (2000) claims that "one of the greatest chalienges ahead of us as formal
scholars offederalism is to synthesize the two branches of the literature, to consider how policy

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efficiency and political feasibility are related...Question of when to decentralize, how, and to
whom - questions regularly raised by the policy literatures - might not be best answered by
examining policy efficiency, but instead ought to be informed by work on political feasibility."
Historically, decentralization is not a new issue in Indonesia. Local governments have
been formally created since the imperialism period. In the beginning of the century, the Dutch
issued the Decentralization Act of 1903. The particular-Act was only limited to regulate the
creation of elected local council in order to balance the deconcentration. The Act of 1903 was
then reformed to provide wider autonomy to local government such as opportunities for native
figure to get involved in the local councils.
When Japanese occupied Indonesia in the 1940, the local government system Inherited
from the Dutch was still maintained. After almost three and a half years invaded Indonesia,
Japanese was forced to leave aftersurrendered to the allied force. During that transition period,
there have been regulations on local government. The included Law No. 1/1945, Law No.
5/1948, Law No. 1/1957, Presidential Edict 6/1959, Law No. 18/1965, Law No. 5/1974, Law
No. 22/1999, and finally Law No. 32/2004.
While Law No. 1/1945 seemed to emphasize on deconcentration. Law No. 22/1948
wanted to put more emphasis on decentralization. This Law underlined the role of Head of the
Region (Kepala Daerah) as a local representative and a representative of central government
as well. Centralization gained its golden age when the Kepala Daerah was directly appointed
by the Jakarta government. Based on these laws together with Presidential Edict No. 6/1959,
all political power in local governments were vested in the hands of the Kepala Daerah/ Local
council or local parliament was only the rubber stamp for all policies of the Kepala Daerah. The
situation continued during Soeharto's presidency that clearly wanted to control all government
level. By the Law No. 5/1974, central government easily controlled local government with
military or armed forces as central players.
When Soeharto government collapsed in May 1998, Indonesia political and
administrative system significantly changed. Of all significant changes, the shift of policy from
a highly centralized system of government and administration for more than three decades to
a decentralized one has occurred. Since that period, decentralization started to open its new
chapter in Indonesian political history.
The remarkable Law No. 22/1999 which was then amended by Law No.32/2004, local
government has limited the power of central government and extended the authority of local
government. Backed by some academics and practitioners like Ryas Rasyid, Adi Sasono and
Andi Mallarangeng, Habibie might be a very important figure behind the idea of decentralization.
But in the beginning process of drafting and issuing the Law No. 22/1999 on Local Government,
public reacted negatively to the decentralization framework.
For some developing countries like Indonesia, decentralization might be considered best
constitutional solution. Political and economic crisis regarding ethnic conflicts has been taken
by scholars to be the most credible justification for decentralization. As quoted by James Aim
(2004) Anwar Shah and Theresa Thompson argue that 'in some countries such as Indonesia
and Pakistan, decentralization processes which had been stuck in the mud for long time were
given a big boost by political arid fisdal crises.
This is why World Bank economists (2003) often label the governmental program
of decentralization as a political 'Big Bang' in Indonesian history. Yet, it seems to me that
categorizing the decentralization process in Indonesia as quoted by many scholars is quite
ambiguous and unclear. It is because 'Big Bang'is oftenidentical with two defining characteristics;

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holistic or comprehensive and lightning speed Implementation. The decentralization process
that has colored Indonesian political history recently only exhibits one aspect of 'Big ^Bang'
characteristic namely lightning speed implementation. Since the Reformation era, driven by an
extra ordinary political situation in 1998, the call for democratization has triggered an approach
to decentralization. And after that there is relatively massive and quick change of relationship
between central government and regional or local governments. It is almost impossible to say
that the decentralization process in Indonesia is implemented comprehensively.
TOWARD FEDERALISM: BETWEEN CONSTITUTIONAL AMENDMENT AND THE
CONTRIBUTION OF FEDERAL SYSTEM IN ORGANIZING MULTICULTURAL INDONESIA

The implementation offederalism in Indonesia is still a big question among commentators

and politicians after long debate since the independence of Indonesia. Thus, this sub-chapter
will mainly examine the prospect of Indonesia to implement federalism as it may already meet
all indicators for a federal state, for examples: the population, diversity in culture, language,
ethnic and religions. This sub-chapter will also illuminate the best suited federal concept to
be adopted in- Indonesia by using examples for other countries all over the world that adopt
federalism. This part will also examine what should be includedand changed inthe Constitution
if Indonesia would adopt federalism.
So, what is the best response to answer a question whether there is any possibility for
Indonesia to adopt federalism? If the question is responded by presenting George Kahin's
view, federalism is unlikely to be implemented in Indonesia. Kahin (1952 : 450) notes that:
The great majority of Indonesians were profoundly dissatisfied with the federal system with
which they had been saddled by the Hague Agreement In all fifteen Dutch-created states, this
discontent soon began to manifest itselfin spontaneous and widely based popular demands
fora scrappingof whatwas conceived to be an alien-imposed federalism and the liquidation of
these states and their merger with the old Republic.
Additionally, for some group of society, the word of "federalism" is even a something
taboo to be discussed. There is also kind ofmisunderstanding among some people to respond
toward the proposal of federal government, even by parliament members and politicians. In a
seminar held in Jakarta in 1999 when the debate over federalism was discussed, a member of
House Representative of Indonesia claimed that the Republic of Indonesia would have to be
dismantled if the unitary system adopted now wereto become a federation system. Before that,
there was a leading politician who commented that a person living in Java would be required to
show passport if travelling to other Island such as Maluku or West Papua.
In spite of skeptical opinion and misunderstanding about the concept of federalism and
its prospect to be adopted in Indonesia, federalism seems to have its place as Indonesia, in my
opinion, has already met all indicators to practice a federal system.
Interm ofthe contribution offederalism inorganizing multicultural Indonesia, Ibelieve that
a concept offederal system will offer more effective constitutional solution to manage diversity
compared to a unitary system. In order to provide a better explanation, some significant benefits
of federalism will be reviewed. First, federalism will allow empowerment of local communities
as well as motivating civil society for better living standard. Due to the importance of equality
in a deep societal division in terms of financial policies, federalism seems to guarantee a
degree of regional autonomy that allow more responsive and professional natural resources
management.
Secondly, federalism can enhance accountability of local officials to provide better
services. The federalism would allow provinces or sets of provinces together with regency

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to have their own autonomy and to provide better public services which may minimize the
potential of local conflict, with their own rights and duties, independent of (but in cooperation
with) the central government.
In the future, when Indonesia is to substitute from a Unitarian system to a federal
governance, there must be a fundamental constitutional change that promulgate the concept
and practice of federalism. The only one paragraph of the Constitution of 1945 would need to
be changed is recent Article 1 which mentions that "The Indonesian State is a unitary state in
the form of a Republic." The word "unitary state" which establishes and highlights a Unitarian
system would need to be restored with "a federation of states," like was during brief period of
first decade after the independence of Indonesia (1949-1950).
A note must be emphasized, that ifthe federation is adopted, it is very important to form
and recognize the constituent states. Hans Antlov (1999) says that the simplest way to do so is
just by changing 'provinces or sets of provinces to have their own autonomy and to form new
states, with their own rights and duties, independent of (but in cooperation with) the central
government.' That will certainly prevent Indonesia from dissolving the identity of Republic of
Indonesia.

It is clear that Indonesia's ethnic demography suggests that the ethnic management
problem facing the government is not as severe as other countries such as India and Srilanka.
Similarly, accordingto Michael L. Rose (2005:17), Indonesia, if viewed along religious line, can
be categorized as a country which suffers from 'a second type of ethnic dominance. However,
the drift towards decentralization in the decades from the independence until the reformation
era has made the country increasingly prone to ethnic Identities and demands namely liberal
constitutionalism, state-backed secular nationalism, and social modernization and economic
development. As a consequence, the Indonesian government has taken and counted on the
promise of liberal constitutional practices, a state-propagated "accommodatives" nationalism,
and at least some minimal level of social modernization and economic development to soften
and even pre-empt ethnic disaffection.
Based on the Indonesian constitutionalism it can be resumed that there are at least four
principle regarding the protection and management of diversity. First, constitutionalism promises
to protect fundamental rights. And when it is necessary, the protection can be intervened by
a Constitutional Court. That is why it is worth mentioning that the most important thing is that
the judicial politics must be subjected to impartial, democratic and responsive. It is essential
because from its establishment, the Constitutional Court has been widely regarded as one of
the leading judicial agencies in Indonesian constitutional practice.
Second, constitutionalism in Indonesia seeks to ensure that governmental and private
activity in all spheres will be rule-governed. Finally, if governmental and private actions
breach the fundamental rights promulgated in the constitution, Indonesian constitutionalism,
will offer ways for aggrieved parties to seek protection both from the Supreme Court and the
Constitutional Court. Finally, Indonesian constitutionalism attempts to protect the instruments
of political participation and public accountability. Political participations such as elections,
political parties, and legislatures are ideally protected.
To sum up, Indonesian constitutionalism holds out the promise that members of any
ethnic group can enjoy fundamental liberties, count on professionalism of government, seek
compensation and protection, and organize themselves in parties to fight elections and get
involved in the process of the making of laws and policies. It seems to me that there is nothing
automatic about the effectiveness of this constitutional construction, but it really depends on
the responsible implementation.

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The second feature of the Indonesian political order is a conception of nationalism
that is nationalist secuiar. In this conception, being Indonesian does not mean beiong in to
any particular religious, caste, tribal, or linguistic group or inhabiting a particular region to the
exclusion of others; rather, being Indonesia means having been born within the boundaries
of Indonesia or having become a responsible citizen and being loyal to Its constitution. The
message is actuaily simpie: in a Unitarian concept, there will be no exclusivity in terms of
ethnicity, community and reiigion.
Additionaliy. the third feature ofthe political order in indonesian modern plural society is
that the government has brought to bear on ethnic relations is the promise of decentralization,
modernization and sustainable development. Consequently, the central government together
with iocal governments need to improve access to higher education, public heaith facilities,
housing, and jobs opportunities.
As mentioned before, managing diversity including religious and ethnic relations In
Indonesia is a complex endeavour. In relation to this proposition, the central government is
involved at two levels. According to the Article 7 of Law No. 22/1999 and its amendment
the Law No. 32/2004. the functions of religion is one of the responsibilities of the central
government, in other words, the central government has to manage its own relations with
individual religious communities. The authorities of central government concerning religion in
a diversity management can be categorized into three problem areas. First is the freedom
of religion. The centra! government's intervention in religious matters is only allowed for the
purpose of social reform. The central government at least has an obligation to make sure that
communal violence or riots, and disputed religious matters are resolved fairly.
At the second level, the government has been preoccupied with maintaining law and
order. In executing its authority, the central government has to fairly manage relations between
religious communities.
Aceh might be a good example ofhow a 'weak' decentralization will not work properly to
tackle iocal conflicts orcivil wars. The journey ofAcehnese to gain their independent government
based on quasi-federalist approach illustrates it very well. After the resignation of Soeharto.
an explosion of political activity in Aceh immediately occurred where a new independence
movement emerged based largely on students and youth.
In terms of pluralism and diversity constellation. Arskal Salim (2007)argues that the issue
of pluralism of values as well as plural legal constellations in Aceh has become an important
issue since the independence of Indonesia. Arskal quoted Bowen's work who has explored
Muslims struggle to reconcile different sets of social norms and laws, including those derived
from Islam, local customs, and contemporary ideas about gender equality in Aceh in particular
and in Indonesia in general.
Historically, this significant Law on special autonomy was emerged from a peace
agreement with the Free Aceh Movement. After more than a decade civil war between the Free
Aceh Movement and Indonesian military which has resulted in more than 1000 deaths since
1990,finally Aceh was given a special autonomy with Law No. 11/2006 onAcehnese government
which marks a long way of Indonesia toward satisfying ethnic demands for accommodation.
The new law on Acehnese Government also determines several additional powers or
authorities that were obviously absent in the original Special Autonomy Law (Law No. 22/1999
and No. 32/2004). According to the new law. local political parties in Aceh now can enjoy the
right to organize, thereby creating an exception to the countrywide legal requirement that ail
political parties have a national outlook. This provision, which was one of the most sensitive
points in the Helsinki peace negotiations, provide the Free Aceh Movement an opportunity to

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configure itself as a political party In order to run for governor and Bupatis elections, as well as
local legislative elections. As a result, candidates In the recent December 2006 local elections
for governor and regency heads ran under the banner of the Free Aceh Movement, even
though it had not constituted itself formally as a political party by that point. The political figure
of the Free Aceh Movement at last won the local election for governor.
In an article entitled 'Indonesia's quasi-federalist approach:Accommodation amid strong
integrationist tendencies', Jacques Bertrand (2007) notes that Indonesia is politically entering a
new paradigm in terms of the relationship between central government and local government.
He further notes that 'from a strong unitarist approach, the Indonesian state has moved toward
a quasi-federal form, while resisting any tendency toward a pluralist federation.'In relation to
this issue, Bertrand (2007) claims that:
"in Just a few years, Indonesia has shifted from integrationist strategies that did not allow for
regional representation to strategies that now permit more flexibility. The administrative and
fiscal decentralization vis-a-vis provinces and regencies does not amount to a federalization of
Indonesia but, certainly, it introduces elements that have created a quasi-federal system. The
underlying principle of this reorganization, however, has retained the unitary state at its core;
moreover, the autonomous units that it recognizes do not coincide with ethnic groups."
Until now, it can be concluded that there is no longer any significant tension or conflicts
between military and the Acehnese who organize their movements through the Free Aceh
Movement. Acehnese now enjoy a better life compared to previous circumstances before the
special autonomy. As an example, in terms of financial Independence and management, the fund
of Aceh special autonomy budget year 2008 that reach Rp. 3, 5 quintllllon which comes from oil
and natural gas profitshare. More specifically, the fund is not distributed directly to kabupatens
or cities but It will be used depend on the project that agreed together between the Province and
lower governments In Aceh. The circumstances have allowed local government to improve the
development process, maintaining Infrastructure, community economy development, health
and social program, fighting against poverty, and education development.
Based on Bertrand's findings. It can be concluded that quasi-federlist approach in
Aceh case has proved that forcing highly integrationist is not solving and providing significant
contribution to reduce local conflicts. Bertrand (2007) notes that:
In both instances, conflict had been fueled in the past by highly integrationist strategies that
were precursors to repression. Integrationist strategies generally were successful in the rest
of Indonesia, but in the provinces of Aceh and Papua, where they included the adoption of
repressive policies meant to preserve the integrationist whole, they proved counterproductive.
By changing course to accommodate demands for autonomy, making special provisions for
these regions, the Indonesian state has reduced group mobilization, military or otherwise
special autonomy proposals or laws have aimed at accommodating the more forceful demands
of the East Timorese, Acehnese, and Papuan ethnonationalists and clearly introduced
accommodationist strategies along plural federalist lines.
Taking into account a clear example of the recent practice quasi-federalist approach
implemented in Aceh, Indonesia has substantially entered a new paradigm of federal concept.
Moreover, it seems to me that the spirit of the Indonesian Constitutional framework and many
of its Institutions which continue to support an Integrationist approach would not be relevant
to solve In an era of allegedly clashing civilizations in multicultural Indonesia. Thus, a federal
system should be taken Into account in order to provide a comprehensive constitutional solution
as well as recognize and empower ethnic diversity.

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 Toward Federalism (Masnur Marzuki)
Thus, it is can be recommended that a constitutional changes need to be implemented
^alongside legislation which will significantly promulgate the architecture of state-region
relations. Current legislations which provide much more specific autonomy to provinces as
well as kabupatens or regency to tackle their own local complex problems In the Republic of
Indonesia constitutional framework Is not quite good enough.
All in all, the Indonesian Constitution was created to outline the goals and policies
of the nation in addition to establishing the parameters of Indonesian's rights. In terms of
constititutlonal amendment to accomodate federalism, current Indonesian Constitution has
locked the possibility. It is simply because Article 37 Section 5 clearly mentions that the form of
the Unitary State of the Republic of Indonesia can not be amended.
However, a constitution Is political consensus which is potentially changed. Donald S.
Lutz (1994) highlights that every political system needs to be modified over time as a result of
some combination of (1) changes in the environment within which the political system operates
(including economics, technology, foreign relations, demographics, etc.); (2) changes in the
value system distributed across the population; (3) unwanted or unexpected Institutional effects;
and (4) the cumulative effect of decisions made by the legislature, executive, and judiciary.
CONCLUSION

The management of diversity In deeply divided society is not easy to envision, since it
has not only such serious problems with local conflicts but also a problem regarding political
matters as well as financial inequality. From Aceh case, Indonesia should learn how a quasi-
federalist appears to be an effective constitutional solution In coping with diversity and local
conflicts.

In spite of the system adopted in a country, the most important things to consider is that
whetherthe system really works and it has to be more responsive to the concernsofdemocracy
and people. More importantly, the potential benefits of either federalism or Unitarian systems
which establish decentralization will crucially depend on governance. In a federal system where
governments get closer to the community or people will allow the efforts to reduce monitoring
costs ofthe electorate. Besides that, competition among local governments could help to tackle
the possibility of corruption, collusion and nepotism. More importantly, as constitutions have a
significant task to establish the rules for the allocation and exercise authorities or state powers,
the adoption of the federal system must be clearly promulgated In constitutions.
All in all, based on analysis and descriptions presented in this paper, it can be concluded
that the prospect of both federalism and unitary system Is mainly influenced by all government
level which must have political will to strengthen its commitment toward democracy and
prosperity of the people. However, in the future Indonesia seems to adopt gradually a federal
state when all government levels have the capacity to implement it.

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