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When scrapping bad bylaws, money comes first, then morality

Jakarta Post - March 28, 2016

Margareth S. Aritonang, Hotli Simanjuntak and Pandaya – President Joko "Jokowi" Widodo, has moved to annul about 3,000 problematic ordinances that local administrations drafted to boost local income and make their regions more "Islamic".

The Jakarta Post's Margareth S. Aritonang, Hotli Simanjuntak and Pandaya review the long-standing controversy and analyze why it is mission impossible to drop such morality bylaws.

Muslim-majority regions have ordinances to safeguard citizens' morality standards. Impoverished regencies have them to boost locally generated income. Deeply religious but poor areas are proud to have them to serve both purposes.

But, what do all of them have in common? The regulations have been so lousily drafted that their entanglement with higher laws is beyond repair. The best solution the central government can think of is to annul them.

After 15 years, the government is finally doing something about the thousands of dysfunctional bylaws that fuel tension between Jakarta and regions over powers that each are entitled to wield. This is because bad legislation at the local level has fueled fears of budding regionalism that could lead to state disintegration.

The laws on autonomy give the regions the authority to administer all but five fields, which remain the central government's domain: Foreign affairs, defense and security, the judiciary system, monetary and fiscal, and religious affairs.

The misconceived bylaws get in the way of economic development by scaring off investors, creating gender inequality and helping to give rise to religious conservatism.

In January, Jokowi ordered Home Minister Tjahjo Kumolo to annul the bylaws, which are in conflict with or overlap with higher laws, to help pave the way to reaching the 7 percent economic growth he promised during his election campaign.

The bylaws are a mockery of autonomy, which were awarded as a fruit of the political reforms that Indonesia has rigorously pursued since 1998. Many regions enforce their own regulations that in fact fall under the central government's authority, such as religious affairs.

Regents and mayors have, no doubt, worked hard to reform their bureaucracies but, unfortunately, all the reforms have largely aimed at stashing locally generated income, or PAD, rather than improving public services and citizenry access to economic resources, as autonomy is meant to be.

So, countless PAD-related ordinances have flopped, wreaked havoc on legal certainty, lead to high-cost economies and made people unduly pay more fees.

There is no way to know the actual number of problematic bylaws. While some have been rescinded, new ones go into effect and the central government has no means to control lawmaking in the regions.

In the early 2000s, it reached more than 9,000, according to one estimate. But one thing is for sure: The central government cannot stop regional administrations from exercising their autonomous rights to make ordinances.

The bulk of the bylaws have been adopted to maximize PAD, which regents and mayors badly need to prove their success. That is important for them because under Law No. 32/2004, a new autonomous regency that fails the central government's performance appraisal for three consecutive years are subject to reintegration with its administrative territory of origin.

Tjahjo has promised that all dubious ordinances on the economy will be scrapped by midyear but for morality related ordinances, the option has been kept open, obviously due to the religious and political complexity of the issue.

He will start with burying bylaws on local tax and retribusi, or fees people have to pay for using public facilities. In notices he sent to regional heads of government, he asked them for lists of the regulations.

"Our priority is to cut red tape and to woo investors to put their money into local businesses," he said. In setting an example, the Home Ministry is scrapping about 170 problematic ministerial decrees issued by Tjahjo's predecessors.

In case you wonder why the central government gives priority to the economic bylaws, well, it's because the political cost would be manageable, as Widodo Sigit Pudjianto, the Home Ministry's legal department chief, admits.

Determining if a morality bylaw is good for a particular region would involve an aimless debate with local religious and government leaders on things like whether it is "protective" for women as clerics claim or "discriminatory" as rights activists like to argue, Widodo says.

On the contrary, abolishing ordinances on morality and gender inequality will no doubt meet immense resistance from religious leaders and politicians banking on religious issues to win people's support. Even in urban centers, politicians often exploit religious sentiments to get elected.

Ironically, in many regencies and cities, the sharia bylaws have been introduced by politicians from nationalist parties, such as the Golkar Party and Indonesian Democratic Party of Struggle (PDI-P), who are supposed to keep Indonesia a secular state.

The number of regulations on decency usually soars after local elections, which is the time when the winning politicians have to honor their promises of making their city more Islamic.

"Political parties should make sure that their politicians at regional legislative councils have a good grasp and sensitivity to gender issues," PDI-P lawmaker Eva K. Sundari says.

Musdah Mulia, an Islamic feminist and scholar, does not buy politicians' rhetoric. "They try to sell religion like a commodity. They'd be better off improving education."

The National Commission on Violence against Women (Komnas Perempuan) has recorded 389 such ordinances being made across the country. In Aceh it is obligatory for women to wear a hijab in public, regardless of their faith.

Indramayu regency legally requires students to wear Islamic clothes and be proficient in Koran literacy. Most Muslim-majority regions have made it obligatory for female government employees to wear Islamic garbs during the month of Ramadhan.

However, the most common problematic bylaws are those barring prostitution. In Tangerang and Aceh regencies, local authorities have slapped "night curfews" on women, prohibiting them from venturing out at night without the companion of their husbands or male relatives – or they risk arrest on a prostitution charge.

Azriana of Komnas Perempuan claims the anti-prostitution ordinance takes a toll on women working night shifts, who risk public shaming by the morality police who treat them as prostitutes only because they are caught at night without male companions. "The bylaws target women, robbing them off their economic, social and cultural rights," she says.

Although West Java has the most bylaws discriminatory against women, Aceh is the worst in terms of severity of punishment, which includes public caning.

The lack of enthusiasm from businesspeople to invest in Aceh's tourist industry is partly blamed on the strict bylaws, which require Islamic dress code for women regardless of their religion, banning alcohol and forbidding nightlife.

It seems like the government has a long way to go before it can annul problematic regional ordinances, especially those on morality. Even senior officials in the central government quietly admit it will be an impossible mission.

Source: http://www.thejakartapost.com/news/2016/03/28/when-scrapping-bad-bylaws-money-comes-first-then-morality.html