Law-Making as a Strategy for Change: Indonesia's New Village Law
Adriaan Bedner
Yando Zakariavisibility
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In 2014, the Indonesian president signed a new Village Law (no. 6/2014). This statute started a new phase in the ongoing history of village governance policy, moving the village from a position as an administrative unit in a top-down system towards one of an autonomous community. The present article analyses how distinct " policy communities " in Indonesia started a process that helped shape the 2014 Village Law in order to promote their long-term political agendas, how their involvement was facilitated by the particular features of Indonesia's law-making process, and how they managed to get a Bill passed that went against considerable vested interest from government bureaucracies. However, they have been less successful in securing implementation of the new law, as this process is still dominated by the government bureaucracies that were " defeated " in the law-making process.
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Asian Journal of Law and Society, page 1 of 25
doi:10.1017/als.2017.21
© Cambridge University Press and KoGuan Law School, Shanghai Jiao Tong University
Law-Making as a Strategy for Change:
Indonesia’s New Village Law
Jacqueline VEL*
Van Vollenhoven Institute, Leiden Law School, Leiden University; Royal Netherlands Institute of
Southeast Asian and Caribbean Studies (KITLV), Leiden
Yando ZAKARIA**
Circle for Rural and Agrarian Reform (KARSA), Yogyakarta
Adriaan BEDNER***
Van Vollenhoven Institute, Leiden Law School, Leiden University
Abstract
In 2014, the Indonesian president signed a new Village Law (no. 6/2014). This statute started
a new phase in the ongoing history of village governance policy, moving the village from
a position as an administrative unit in a top-down system towards one of an autonomous
community. The present article analyses how distinct “policy communities” in Indonesia
started a process that helped shape the 2014 Village Law in order to promote their long-term
political agendas, how their involvement was facilitated by the particular features of
Indonesia’s law-making process, and how they managed to get a Bill passed that went against
considerable vested interest from government bureaucracies. However, they have been less
successful in securing implementation of the new law, as this process is still dominated by the
government bureaucracies that were “defeated” in the law-making process.
Keywords: law-making, vernacularization, ecentralization, Village Law, Indonesia
1. INTRODUCTION
Decentralization does not happen overnight. It is a long process, characterized by political
contestation and dotted with legal landmarks in a broad range of fields. A case in point is the
decentralization process in Indonesia following the resignation of President Suharto in
* Senior researcher at the Van Vollenhoven Institute, Leiden Law School, Leiden University and at the Royal Netherlands Institute of Southeast Asian and Caribbean Studies (KITLV) in Leiden. Correspondence to Jacqueline Vel, Van
Vollenhoven Institute, Steenschuur 25, 2311 ES Leiden, The Netherlands. E-mail address: [email protected].
** Independent researcher at the Circle for Rural and Agrarian Reform (KARSA) in Yogyakarta, Indonesia. A first
draft of this paper was presented at the international workshop “New Law, New Villages? Changing Rural Indonesia” in
May 2016 in Leiden, organized by KITLV, Van Vollenhoven Institute, and the Norwegian Centre for Human Rights
Research of the University of Oslo. The authors are very grateful to Gerry van Klinken and Ward Berenschot who made
comments to earlier drafts, and two anonymous reviewers for their insightful comments. A considerable part of the
research for this paper was conducted with the aid of a KITLV fellowship (Y.Z.) and by the programme “Governance
Markets and Citizens in Indonesia” funded by the Royal Netherlands Academy of Arts and Sciences (J.V.).
*** KITLV Professor of Law and Society in Indonesia at the Van Vollenhoven Institute, Leiden Law School, Leiden
University, The Netherlands.
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2 ASIAN JOURNAL OF LAW AND SOCIETY
May 1998, which was closely linked to the simultaneous trajectory of democratization.1
The major statutory landmarks of this decentralization have been the Regional Autonomy
Laws no. 22 and no. 25 of 1999, the Second and Third Amendments to the Constitution (2000
and 2001), and the Law on Regional Government no. 32 of 2004. The 1999 laws devolved
authority to the regions2 and introduced democratic controls, the constitutional Amendment
anchored this change in the Constitution and constituted the democratic representation of the
regions at the national level, and the 2004 law introduced direct elections of regional government heads. There is a huge literature on these decentralization laws—how they came into
being and what their effects have been.3 However, this does not yet apply to the latest addition
to the series of decentralization laws: the 2014 Village Law (no. 6/2014).
The genesis of this law differs profoundly from its predecessors in that it was not imposed
in a top-down fashion, but the result of a participatory law-making process. The Village Law
is revolutionary in its scope, pushing decentralization to the level of Indonesia’s nearly
75,000 villages: the village no longer is just the lowest level of government administration,
but instead is recognized as an autonomous legal subject with its own authorities and rights.4
The new Village Law entitles villages to receive considerable cash transfers from the national
and district government which they can use according to their own views. The amount of
these “village funds” is specified as 10% of the budget transfers from the national government to the districts, in addition to the direct transfer of a similar sum (Article 72 and its
Elucidation). With these funds, even the poorest villages now have a budget that they can
spend on the public projects they prioritize themselves.
This article addresses the question of how it has been possible that such a revolutionary
law, which goes against so many vested interests at higher levels in the state hierarchy, has
been adopted by government and Parliament. We will argue that this happened because of
three factors: convergence of several distinct policy goals in the proposed Bill at a favourable
moment in Indonesia’s political history, the collaboration between the policy communities
that campaigned for these goals, and the opening-up of the political system for participatory
forms law-making after 1998. We use the term “policy communities” as an analytical concept to catch the variety of actors that participated in the law-making process.5 Policy
communities comprise people who share a social or political objective. They are not
necessarily colleagues or members of the same organization; what unites them is the shared
policy goal. Within a policy community, there is a consensus about the definition and analysis of particular problems, and how these should be resolved. In other words, within a
policy community, one finds relatively stable dialogues and a degree of consensus about
policy theories.6 Below, in the section about making the Village Law, we will further elaborate on this concept.
In addition, the analysis of the making of the 2014 Village Law sheds light on several
important characteristics of the law-making process in Indonesia more generally. The first is
1. Schulte Nordholt & van Klinken (2007), p. 15.
2. When we use the word “region,” we refer to both the province and the district.
3. See Schulte Nordholt & van Klinken, supra note 1; Holtzappel & Ramstedt (2009); Hadiz (2004),
pp. 697–718; Erb et al. (2013).
4. Eko (2014).
5. Veerman (2015).
6. Bagchus (1996); Veerman & Hendriks-de Lange (2009).
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LAW-MAKING AS A STRATEGY FOR CHANGE
3
that participatory law-making processes have a high probability of resulting in a “negative”
symbol act: a law that serves to express particular values in the political sphere rather than to
enforce particular norms of behaviour and the objectives lying at their basis.7 When several
policy communities are involved, each with their own objective, the chance for such
“negative” compromises is considerable. The typical Indonesian version of this result is a
framework law, which lacks substantive rules but combines a set of lofty, broad principles
with a legislative agenda. As a result, political contestation will shift to the implementation
phase.8 A good example of such a law is the Company Law (no. 20/2007): it includes a
provision on compulsory corporate social responsibility (CSR) for resources companies,
but, as Rosser and Edwin have argued, its implementation remains dependent on political
leadership that supports a mandatory approach to CSR and that is willing to act on this issue,
against the interests of multinational corporations and large domestic conglomerates.9
A second characteristic of the Indonesian law-making process is that few laws take
sufficient account of local conditions, in particular, of local power structures, customary, or
religious norms.10 In this respect, the Village Law is different, as it accommodates for regional
variety and intends to address local power imbalances through provisions for strengthening
village-level democratic institutions.11 This, we will argue, is largely the result of the efforts of
one particular policy community that pursued this matter relentlessly from the start to the finish.
A third issue that will be highlighted by this case of making the Village Law is that the process
of law-making takes place in a context where “practical norms” are governing the bureaucracy
involved in this process.12 The concept of “practical norms” builds on earlier work in development
administration by notably Riggs and has recently been further developed in comparative studies
about public services and the local delivery of public goods in Africa. At its core is the attempt to
understand how practices not complying with formal rules are nevertheless regulated.13
The article will proceed as follows. We will first address the background and context in
which the need for this new law emerged, followed by an analysis of the particular conjuncture in 2005 that inspired the agenda for change of the major policy communities
involved, and their goals and interests. Then we will explain the procedures for law-making
that enabled policy communities to play such an influential role. The following section will
elaborate the concept of policy communities, and provide an overview of their involvement
in the Village Law process, from 2005 up to 2014. In the next section, we summarize the
content of the new law, showing the result of compromise struck between all the interests
involved and highlighting the issues that have surfaced during the implementation of the
Village Law as from April 2015. In the conclusion, we discuss why (participation in) making
a new law has had only limited effect on changing pre-existing dynamics of power to arrive
at new outcomes—at least so far.
7. Van Klink (2014), p. 8; Aubert (1967).
8. Good examples are the 1982 Environmental Law (Bedner (2008)); and the 2012 Food Law (Vel et al. (2016)).
9. Rosser & Edwin (2010), pp. 1–22.
10. The classical theoretical elaboration of this idea is Sally Falk Moore’s semi-autonomous social field (Moore
(1973)). For an overview, see the World Bank’s World Development Report 2017 on Governance and the Law. See also
Hesseling (2009), p. 243; Ubink et al. (2009); and, for a recent example in this Journal, Trzcinski & Upham (2014),
pp. 55–77.
11. Antlöv et al. (2016), pp. 161–83.
12. The classical work is Riggs (1964).
13. Olivier de Sardan (2011), pp. 22–31; Olivier de Sardan (2013), pp. 43–64.
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4 ASIAN JOURNAL OF LAW AND SOCIETY
2. THE CONTEXT OF CHANGING VILLAGE GOVERNANCE
LEGISLATION
In order to explain the rise of a movement for creating a new Village Law in the early 2000s,
we first need to understand the historical context of village government in Indonesia and the
arguments in favour of and against village autonomy. These arguments go back to the
colonial era, were rephrased in the nationalist policies after Independence, and led to continuous debates under the centralized policies of the authoritarian regime of President
Suharto (1965–98). The national government’s interest in village governance revolves
around the embedding of the village in hierarchical schemes: What is the relation of the
village with the national state? How can the village serve the administrative needs of higher
levels of government? The main issues at the village level also concern power and authority:
Who should be entitled to decide about the use of village land and assets? What should be the
procedure for deciding who will be village head, and what should be his or her powers?
How can the interests of common villagers be served and protected, and what are the criteria
for in- or exclusion of inhabitants into a village community? These questions have been
answered differently in successive periods of Indonesia’s political history.
2.1 From Autonomy to Subordination, and Unification or Diversity
During the late colonial era, the central colonial government disposed of only a very limited
government apparatus. It adopted the pragmatic policy of allowing villages to govern their
internal affairs according to their customary (adat) law, and implicitly provided legal
recognition of adat institutions within the village boundaries. The village head had a dual
role: he served as the head of the community and the representative of the colonial government at the same time. This dual structure facilitated the extractive policies of levying taxes
and forcing or promoting the cultivation of products for the global market. Village heads
themselves held a financial stake in tax collection, which easily led to abuse. At the
same time, part of the tax rewards were used for financing health care for villagers and the
promotion of similar public goods.14
The first Indonesian Constitution, of 1945, was a sharp ideological rejection of the colonial
system.15 A spirit of nationalism and national unity that pervaded the document discouraged
village autonomy and diversity. Nonetheless, the Constitution did offer some provision for
diversity in local government through its Article 18, which referred to “the government
system and the right of origin (hak asal-usul) of special territories (daerah-daerah yang
bersifat istimewa).” The Elucidation to this article added that the special status of
self-governing entities (zelfbesturende landschappen) and “people’s communities”
(volksgemeenschappen) was to be respected (dihormati). This included respect for their
customary rights.16 The Constitutions of 1949 and 1950 held comparable clauses.17
At the legislative level, the period between 1945 and 1965 saw a rapid succession of laws
regulating village governance—six laws within a period of just 20 years. Their overall trend
14. Breman (1982), pp. 189–240.
15. As rightly pointed out by an anonymous reviewer of this article, the 1945 Constitution did provide for the
continuation of all Dutch colonial law until expressly overturned.
16. Bedner & van Huis (2008), p. 171.
17. Arts 64 and 65, viz. 131 and 132.
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LAW-MAKING AS A STRATEGY FOR CHANGE
5
was towards a unified system for village governance for the whole country in combination
with a large degree of village autonomy. This trend was reversed by Suharto’s New
Order regime, which held that village-level autonomy went against the national interest of
stimulating economic growth, stability, and security.18
The New Order introduced major changes in village governance that reinforced the power
of the central government. Village heads were no longer elected by the village population,
but selected and appointed by the district head. Many of these new village heads came from
outside the village, had a military background, and were faithful political clients of the new
regime. Autonomy was further limited by Law no. 3/1975, which put severe restrictions on
political activity. Parties were still allowed to organize at the district level, but not in the
villages. Lack of control by village institutions facilitated abuse of power by village heads
and the implementation of the land-reform programme introduced in 196019 was put on hold
indefinitely, land policy changing towards facilitating commercial use of land.20 Decrees
no. 6/1972 and no. 15/1975 of the Minister of Agrarian Affairs opened possibilities for land
acquisition in customary land areas in exchange for a compensation. While officially it
concerned a voluntary procedure, in practice, such acquisition was often forced by the
government and the military.21 The village head’s authority to grant permission for such land
acquisition became an important tool for corruption.22
In 1969, President Suharto issued Decree no. 16/1969 about village funds (dana desa), an
annual central government grant for all villages in the country, which was allocated to the
districts rather than directly to the villages. The size of the grant depended on the number of
villages in a district. This was a financial stimulus for unification of local governance in
“national style desa,” which led to the fragmentation of even the famous and socioculturally
entrenched nagari in West Sumatra.23 These developments towards national uniformity and
centralized control culminated in Law no. 5/1979 on Village Government. That statute
defined the desa as an administrative unit under the co-ordination of the subdistrict head
(camat) and had as its official objective to support national economic growth, equality,
stability, and security. It created new institutions under firm control of the village head to
provide implementation capacity for the national government’s policies. By ignoring
adat institutions, the law further undermined customary claims to land. Development was
organized in the form of projects, which became the currency in the clientelistic system that
through a long chain connected village heads to the president. These government policies
were supported by severe repression of any opposition.24
2.2 The Agenda for Change
Soon after the demise of the New Order regime in 1998, the 1979 Village Law was replaced
by the new regional autonomy legislation (Laws no. 22 and no. 25/1999). Districts and
18. Soemarno et al. (1980).
19. Based on the Basic Agrarian Law no. 5/1960, Arts 7, 10, 17, 53, and Law no. 56/1960, GRs no. 224/1961 and
no. 41/1964.
20. Lucas & Warren (2013).
21. Bedner (2001), pp. 155–6.
22. Soepomo (1993).
23. Von Benda Beckmann & Von Benda-Beckmann (2013), p. 130.
24. Lucas & Warren, supra note 20.
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6 ASIAN JOURNAL OF LAW AND SOCIETY
villages were no longer solely administrative units in a hierarchical chain, but regained a
large degree of autonomy. Nonetheless, to the activists who had been struggling for more
autonomy for villages and to those who saw the new autonomy as a means of promoting
land rights for indigenous people, the first piece of implementing legislation specifically
concerned with villages was disappointing. Government Regulation (GR, Peraturan
Pemerintah) no. 72/2005 merely addressed issues of village government organization and
provided hardly any instruments for implementing rights or policies.
One of the main issues concerned finances. Between 1999 and 2005, the budget for
village-level programmes increased considerably, but villages could only decide about the
allocation of a small part of it. GR no. 72/2005 widened the opportunities for villages to
obtain control over these funds, but in a neoliberal, non-egalitarian fashion: village
governments had to submit project proposals and lobby for their funding in competition with
other villages. The population thus became dependent on their village head and his or her
skills in winning projects, and, while some villages obtained, many others got no projects
at all.25
On top of this, villagers themselves were hardly involved in evaluating whether in the end
these projects were beneficial to them. One of the sources of funding of these competitive
projects was the PNPM Mandiri, a programme adopted from an earlier World Bank
scheme (the Kecamatan Development Programme), whose rules and procedures led to the
prioritization of projects concerning infrastructure and micro-credit. Their success was
measured based on material and physical indicators—not on what the local population
thought of them.26
The criticism on GR no. 72/2005 can be read as the agenda for change that eventually
resulted in the 2014 Village Law. The first thing missing was acknowledgement of the
diversity of community life in rural Indonesia. A national law ought to create the necessary
framework in which a wide variety of local institutions and governance styles can function.
Second, the autonomy granted to villages was limited to “leftovers”—what remained once
the district government had implemented all of its policies. Villages thus had no autonomy in
managing the public projects that aimed to support them. Third, most of these programmes
and projects were designed, decided, and implemented without any direct involvement of the
villages themselves. And, fourth, there was a gap between programmes at the village-level
and supra-village-level development activities. These four arguments together provided the
basis for a process of legal mobilization.
3. PARTICIPATION IN LAW-MAKING IN INDONESIA
Just as the desa has moved back and forth between subordination and autonomy, so has the
law-making process in Indonesia oscillated between a top-down model—dominated by
the government—and an open one, in which Parliament plays a considerable role and
civil society can participate.27 After the start of Reformasi in 1998, civil society
25. Aspinall & Sukmajati (2016).
26. AKATIGA (2010); Datta et al. (2011); Gibson & Woolcock (2005); McCarthy et al. (2014); Soehendra (2010);
Voss (2008).
27. At present, it is legally impossible for Parliament to truly dominate law-making, because the president can block
any act initiated by Parliament (Art. 20(3), Constitution).
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LAW-MAKING AS A STRATEGY FOR CHANGE
7
organizations (CSOs) found new ways to exercise influence on law-making. This was
demonstrated most visibly in the preparation of the Bill on Natural Resources—a process that
ran from 2000 until 2003 but was eventually aborted by the government.28 Yet, despite this
initial lack of success, different forms of participation in law-making continued, facilitated
by a new law on law-making (no. 10/2004). Article 53 (now Article 96 of Law no. 12/2011)
stated that “society has the right to give input in preparing or discussing a draft law.” This
provision has been translated into a range of opportunities for stakeholders to influence the
law-making process.
3.1 Options for Participating in Law-Making
The first option is in getting an item on the legislative agenda, the so-called Program
Legislasi Nasional (the National Programme for Legislation or Prolegnas). The Prolegnas is
determined by the president and Parliament together at the start of the five-year term
of a newly elected Parliament and is adapted before each year’s session (Article 20, Law
no. 12/2011). If a civil society organization wishes to promote a certain law, it first needs to
convince the Parliament and the president that they should include it into the Prolegnas.29
Only then does it make sense for them to start lobbying for the actual changes they wish to
effect.30 One should be aware that inclusion in the Prolegnas is by no means a guarantee that
a law will come into being though: the highest rate of Prolegnas Bills realized was 56 out of
76 in 2009, while, in 2013, the rate had dropped to 24 out of 70.31 Still, Prolegnas is the
preliminary hurdle to be tackled.
The first step in the actual law-making process is the creation of the so-called “Academic
Document” (Naskah Akademik), a report setting out the parameters of the law and
the problems that it seeks to resolve. It is required for every new Bill (Article 43(3),
Law no. 12/2011). The Academic Document offers a potentially effective avenue of exercising influence, but in practice this opportunity to determine the starting point for the
ensuing debates is seldom used by the law-makers involved. Most academic documents in
preparation of new laws are abstract and general, and they do not pay much attention to
practical issues involved.32 However, there may be exceptions to this rule, as we will later see
in the case of the Village Law.
A next opportunity for influencing the law-making occurs when a special drafting team is
charged with preparing the Bill. It depends on whether the item in the Prolegnas was initiated
by the government or by Parliament whether civil society actors can participate.33 Where it
28. Arnscheidt (2009).
29. Law no. 12/2011 provides a complex procedure for Parliament and the government to determine the Prolegnas,
securing equal amounts of influence for both sides. The co-ordination between the efforts of Parliament and the
government lies with the Parliamentary Body for Legislation (Art. 21(1)) and eventually the Prolegnas are established
by parliamentary decision (Art. 22(2)). It is unclear whether in practice this allows Parliament to play a dominant role.
Art. 22(1) also stipulates that there must be agreement (kesepakatan) between government and Parliament about the
Prolegnas.
30. Art. 19(2) determines that the Prolegnas should include the background and goal of the law-making, the objective
that it aims to achieve, and the planning and field of the regulation. According to Purawan (2014), pp. 534–45, in
practice, these objectives and goals are so vague that they give hardly any guidance at all.
31. Purawan, supra note 30, p. 540.
32. Anggono (2014).
33. The Representative Regional Council (Dewan Perwakilan Daerah) can also initiate a Bill, but this seldom
happens, so we will leave aside this procedure.
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8 ASIAN JOURNAL OF LAW AND SOCIETY
concerns a government Bill, the process is run by the department that holds authority over the
policy field concerned, with a co-ordinating role for the Ministry of Justice and Human
Rights (Article 47, Law no. 12/2011). Government drafting teams consist of representatives
from other relevant departments, but they usually also include non-government experts.
Having one’s own expert included in this team offers a shortcut to influence, which is
something most CSOs are well aware of.34 In case of a Parliament-initiated Bill, it often is
easier for CSOs to exercise influence, because staff support for developing Parliament Bills is
much more limited.35
The research available indicates that the drafting process in this phase is often highly
contentious. This applies in particular to government Bills where more than one department
is involved, or where a Bill may affect the interests of another department. The politics
common to all bureaucracies is exceptionally strong in Indonesia, where it is known as
“ego-sektoralism.”36 This means that a lot of bureaucratic infighting takes place before a Bill
may proceed to the official stage of parliamentary debates.
This bureaucratic infighting may continue during the debates in Parliament. These are
conducted mainly in a Special Committee (Panitia Khusus), where the major parties are
represented to discuss the draft among themselves and with the relevant government
department. The debates in the Special Committee are often quite contentious. Whether
CSOs and others can influence them depends on their relations with MPs. In the case of the
Village Law three academic activists were appointed as expert staff, which provided a unique
opportunity for continued influence.
One of the results of this contentious character of law-making, which inevitably leads to
compromises, is a tendency to keep laws relatively general and ambiguous. Although we do
not argue that most of Indonesian laws are “negative symbol acts,” they seldom provide a
clear mechanism of implementation and leave contentious points to be resolved by implementing regulations.37 This has an important implication for CSOs and others involved in a
policy community because, if they want to exercise genuine influence, their involvement
cannot stop with the passing of the law. They need to make sure to remain involved in the
drafting of implementing regulations as well as in the actual implementation itself.
3.2 Methodology Note: An Insider’s View
Before we proceed with our analysis of the law-making process of the Village Law, we
would first like to say a few things about the research method we used. One of the authors of
this article (Zakaria) has participated actively in the process described in the previous
Section 4.1. He has been involved in research and activism concerning a new village law
since 2000 and he was one of the members of the expert team composed by the Parliament
for drafting the new Village Law (2012–13). It provided him with access to all meetings
34. About this process, see also Datta et al. (2011).
35. Remarkably, the number of Parliament Bills has now outgrown the number of government Bills. For instance,
from the 37 Bills prioritized in the Prolegnas in 2015, 26 were Parliament Bills, ten government Bills, and one a
Regional Representative Council Bill (Taufiqurohman (2015)).
36. Bedner, supra note 8, pp. 171–98; McCarthy (2011).
37. Bedner, ibid.; Tømte (2016) explains that “implementing regulations refers to regulations, which in other countries
are given names such as delegated legislation, subordinate legislation, secondary legislation, legislative instruments or
statutory instruments.”
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LAW-MAKING AS A STRATEGY FOR CHANGE
9
concerning the making of the Village Law, and access to documents and oral information
provided to the expert committee in this period. He wrote many articles, reports, and books
(in Indonesian) about this process and the ideas behind a new village law.38 He is also a founder
of KARSA,39 one of the organizations that actively lobbied for the new Village Law. Most of
the information used in this article relies on his notes and experiences. The first author (Vel) has
conducted interviews in 2015 with representatives of the main policy communities in
campaigning for the Village Law. The results of these interviews have been used for making the
overview in the next section. Together, the three authors have analyzed the information from the
field and positioned the findings in larger debates on law-making and democratization, and how
these contribute to understanding the legal system in Indonesia.
In the next sections, we will look at how policy communities dealt with the particular
features of the Indonesian law-making system in the drafting and implementation of the new
Village Law.
4. POLICY COMMUNITIES’ PARTICIPATION IN LAW-MAKING
The key actors in our account are “policy communities.” This is an analytical concept to catch
the variety of actors who participate in a law-making process.40 It comprises individuals or
groups, such as civil society actors, companies, government institutions, or officials, and donor
organizations, who share a social or political objective translated into a policy goal. They are not
necessarily colleagues or members of the same organization: what unites them is the shared
policy goal. For the individuals and organizations collaborating as a policy community, the
shared objective guides all their activities, of which the drafting of a law is just one part.
This distinguishes “policy communities” conceptually from “interest coalitions,” as used
for instance by Rosser and Edwin.41 These authors examined how various categories of
actors collaborated in the making of the Company Law in Indonesia in 2005–07. The factor
that either unified them or set them apart was their shared interest in having mandatory CSR
regulated by the law, or their preference for avoiding such legal obligation and keeping CSR
voluntary. The interests were defined in close relation to the choice between mandatory or
voluntary CSR, and thus limited to a core element of this specific law. Policy communities,
on the other hand, share a broader policy goal, not just a temporary interest, nor do they
necessarily share a collective identity.42 The latter characteristic also distinguishes them from
“social movements,” which refers to networks of individuals, groups, and/or organizations,
engaged in political or cultural conflicts, on the basis of shared collective identities.43
Many policy communities coalesce around general ideals or certain human rights that they
seek to translate into national legislation and local programmes of action. In the case of the
Village Law, it concerned norms on accountability, transparency, and participation, but also
the right to public services for the fulfilment of basic human needs. These norms are meant to
38. Zakaria (2004), which is included in the list of references, is just one of these. He wrote the first draft of his
contribution to this article during his research fellowship at KITLV in Leiden in 2015.
39. KARSA (Lingkar Pembaruan Desa dan Agraria) Circle for Agrarian and Village Innovation, Yogyakarta.
40. Wright (1988), pp. 593–612; Bagchus, supra note 6; Veerman & Hendriks-de Lange, supra note 6.
41. Rosser & Edwin, supra note 9.
42. Although this may be the case, as for instance in the case of the Indonesian Village Head Association.
43. Diani (1992), pp. 1–25.
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10 A S I A N J O U R N A L O F L A W A N D S O C I E T Y
be grounded in local social and political realities. Most policy communities include persons
who can act as intermediaries with the capacity of translating general ideals into forms that
make sense in national and local situations through a process of vernacularization.44
The initial steps for such “idealist” policy communities in the law-making process include (1)
translating a universal ideal into a campaign goal, (2) identifying and mobilizing allies and
designing a legal-political strategy, and (3) getting access to and participating in the legal drafting
process. Many analyses stop here, but in fact the role of policy communities extends beyond the
promulgation of the law. However, most policy communities are better equipped for advocacy
than for policy implementation and have difficulties in linking the formal law to practical settings.
4.1 Policy Communities and the Village Law: Six Shared Goals
How, then, did the process of making a new Village Law unfold and what was the role of
policy communities in this process? From 2006 onwards, a number of civil society organizations started collaborating towards a new law, in response to the disappointment about Law
no. 32/2004 and GR no. 72/2005 and the reluctance of the government to take the initiative.45
In the end, six distinct policy communities involved in this process can be distinguished.
They “translated” their larger policy goals into concrete demands and proposals for articles to
be included into the new law, which were then eventually championed by different MPs
involved in the debates about the Village Law Bill in the Special Committee. We will discuss
these objectives one by one, loosely following the stages of the law-making process.
4.1.1 Better Position for Village Heads
The issues that started the law-making process had little to do with human rights or a public
interest policy agenda. In July 2006, Parade (Persatuan Rakyat Desa, Association of Village
People) Nusantara and associated organizations of village government officials held a discussion meeting in Semarang with several representatives from the national Parliament.46
They agreed that “the desa as the pillar of the Indonesian nation should be regulated decently
and professionally.” This meeting followed an earlier one between representatives of Parade
and members of the Regional Representative Council (Dewan Perwakilan Daerah)47
on 3 April of the same year. At this occasion, the former lobbied the latter to promote the case
for a new Village Law to Parliament. The event was accompanied by demonstrations
involving thousands of village officials from mostly Central Java. This was only one in a
series of demonstrations by village officials, which started in February 2006 and would be
reiterated at strategic points in time up until the law was taken to Parliament in 2012.48 These
actions were key in taking the issue of a new Village Law to the national level.49
44. Merry (2006), pp. 38–51; Merry (2009).
45. See for the criticism Zakaria (2000), Chapter 8: “Epilog: Kebijakan Baru, Tantangan Baru”; Rozaki & Rinandari
(2004); and Eko & Krisdyatmiko (2006).
46. Interview with Suryokoco Suryoputro on 17 September 2015 in Jakarta. Suryoputro was the general secretary of
Parade Nusantara at the time of the actions in 2006 and the coordinator of the federation-like association Supporters of
Village Empowerment in the Archipelago (Relawan Pemberdayaan Desa Nusantara).
47. The DPD represents regional interests at the national level and together with Parliament constitutes the People’s
Constituent Assembly (Majelis Permusyaaratan Rakyat), which holds the power to amend the Constitution.
48. Footage of the first demonstration on 7–8 February 2006 is available on YouTube (2017).
49. Personal communication Suryokoco Suryoputro to Yando Zakaria (13 April 2007).
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LAW-MAKING AS A STRATEGY FOR CHANGE
11
Yet, it needed more than Parade Nusantara to finally get the government and Parliament
to take action. Only in mid-2007 did the minister of home affairs officially decide
that a village law should be drafted. He acted in direct response to a ruling by the
Constitutional Court which ordered the revision of the direct election of regional heads.50
The government then decided that it would replace the Regional Autonomy Law no. 32/2004
by three separate statutes: one on regional government, one on the election of regional
heads, and one on village government. Within the Ministry of Home Affairs, the
Directorate General of Village Government and Society moreover provided an entry point
for lobbyists from Parade Nusantara and other policy communities supporting the law (see
below).
In summary, it was a combination of external pressure from Parade Nusantara and internal
state processes pushed by the Constitutional Court that started the law-making process. The
items on the agenda of Parade Nusantara included the demand that village government
officials could become members of a political party, that their office term would be extended,
and that they would obtain the status of civil servant (PNS). Internally, the organization was
divided between those who struggled for more village autonomy in general and others who
were mainly interested in increasing their power and remuneration. Thus, the first steps
towards the next Village Law were informed as much by private as by public interest
concerns.
4.1.2 Acknowledgement of Diversity in Community Governance and Institutions
The first concrete step in the actual law-making process was the preparing of the so-called
Academic Document (Naskah Akademik). The Ministry of Home Affairs’ Directorate of
Village Communities and Government invited CSOs and development donor institutions to
provide input to this process. This was the perfect opportunity for activists and academics to
promote the issues they thought were important for a new village law. Coming from many
different organizations,51 they established a network called the Forum for Renewing and
Empowering the Village (Forum Pembaruan dan Pemerdayaan Desa) to exchange views
and work more effectively towards incorporating their objectives into the law.52 At the top of
this policy community’s list was the acknowledgement of diversity in village governance and
institutions—a point they had been pushing for since 1998. Their effort found legal support
in Article 18B(1) and (2) of the Constitution, which stipulate that “The State shall recognize
and respect entities of regional administration that possess a specificity or a distinctiveness
that are to be regulated by law” and “The State shall recognise and respect, to be regulated by
law, the homogeneity of societies with customary law along with their traditional rights for as
long as they remain in existence and in agreement with societal development and with the
principle of the Unitary State of the Republic of Indonesia.” The acknowledgement of such
diversity indeed became part of the Academic Document, a 100-page document that was
finalized in July 2007.
50. 5/PUU-V/2007.
51. Among others, the Institute for Research and Empowerment Yogya, Formasi Kebumen, and Circle for Village and
Agrarian Change (Lingkar Pembaharuan Desa dan Agraria (Karsa)). Prominent figures included Sutoro Eko, Ari
Sujito, and Ari Dwipayana.
52. Yando Zakarian was a member of this network on behalf of the non-governmental organization (NGO) KARSA.
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12 A S I A N J O U R N A L O F L A W A N D S O C I E T Y
4.1.3 Power, Land, and Money to the People
The Academic Document was submitted to public consultation in several regions, and the
government on this basis started preparing a Bill, in a process that was as closed as the
previous one had been transparent. Progress was very slow, mainly because of resistance
from key bureaus within the Ministry of Home Affairs itself, which did not like changes in
the current situation for three reasons. First, the increase in village autonomy would mean a
decrease in the power of the higher levels of government—that is, their power would be
circumscribed. Second, the budget for the envisaged increase in village funds would be
financed from budget cuts of village-level programmes that they administered. This would
mean, for example, that public works/infrastructure services at the district level would
receive smaller budgets than before, and that they could no longer decide which contractors
should implement the projects in villages. This would lead to a serious loss of opportunities
to earn extra income connected to meetings, supervision of projects, etc.53 Third, the
implementation of the Village Law would be an administrative steeple chase, as it involved
several ministries whose policies and regulations needed to be harmonized.
In response to the stalling of the process, the policy community around village diversity
together with members of the Regional Representative Council (DPD)54 with whom they had
personal connections tried to work around the government and started to draft their own Bill
based on the Academic Document. In this manner, pressure was put on the government to
come forward with its Bill, since otherwise Parliament might be convinced by the DPD and
their allies to use its right of initiative instead.55 Although eventually the legislative process
proceeded with the government draft, this strategy worked as an effective means of putting
pressure on the government. A key role in this process was played by former activist and
current MP, Budiman Sudjatmiko.
Sudjatmiko had been a prominent activist during the New Order when he campaigned for
land reform and the rights of the people in rural areas. This made him easily accessible for
activist-academics from all the policy communities involved. His involvement in the 1996
protests against the New Order landed him in jail to serve a 13-year sentence,56 but it also
gained him the support of the then PDI-chair Megawati Soekarnoputri and, in 1998,
Sudjatmiko was released. In 2009, he was elected to Parliament for the Indonesian Democratic Party of Struggle (PDI-P), with the support of the village diversity policy community
and with village reform as his major focus. In his memoirs, Sudjatmiko recalls how, in 2005,
he first developed the idea to use the village as a vehicle for promoting land rights and
promoting equality, and it was this idea that he could pursue by promoting the Village Law.57
Around this objective, another policy community formed that campaigned for increasing
the autonomy of villages, so that they could better resist encroachment of village land. The
village was to become a legal subject with recognized rights. A second objective was to
reinforce village power by allocating more money to the village budgets, which was
53. Tidey (2012), p. 150. Of course projects also open up opportunities for corruption; this may also have played
a role.
54. This council represents the regions at the national level (see Arts. 22C and 22D of the Constitution).
55. In the end, this Bill never obtained an official status, but it became part of the documents the government later
submitted to Parliament.
56. Sukma (1998), pp. 105–23.
57. Sudjatmiko (2014), pp. 247–55.
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LAW-MAKING AS A STRATEGY FOR CHANGE
13
supposed to lead to a more equal distribution of wealth. The rallying slogan became that 10%
of the national budget should go to the villages.58
Where it concerned the Village Law, Sudjatmiko turned out to be an effective political
operator. In 2010, he succeeded in getting his party behind the effort to have the Village Law
included into that year’s Prolegnas. He moreover got an official position as adviser (Pembina
Utama) of Parade Nusantara.59 Supported by Parade Nusantara demonstrations,60 he
managed to have Parliamentary Commission II push the Yudhoyono government to finally
submit its Bill to Parliament, threatening that otherwise Parliament would take the initiative
and create its own draft.61 In the end, the government gave in and submitted its Bill to
Parliament. In almost all respects, the result was completely different from the suggestions
made in the Academic Document and tried to maintain the status quo. Parliament then
established a Special Committee (Panitia Khusus) for debating the draft.62 Representing the
PDI-P, Sudjatmiko became one of its deputy-chairmen. Sudjatmiko moreover managed to
have three activist-academics appointed to the Expert Staff of the Commission. These would
provide a crucial point of access for input from all policy communities involved. And,
finally, the old network called the Forum for Renewing and Empowering the Village (Forum
Pembaruan dan Pemerdayaan Desa), now under the new name of the Circle for Village and
Agrarian Renewal (Lingkar Pembaruan Desa dan Agraria), received the opportunity to
present a working paper to the Special Committee (on 20 June 2012). Its contents were
almost the same as those of the Academic Document made five years earlier.
4.1.4 Recognition of Customary Communities and Their Land Rights
Before we continue with a brief analysis of the debates in the Special Committee, we will first
discuss the three other policy communities that were involved in the process. The first of these
was concerned with the recognition of customary communities and their land rights. With the
National Association of Indigenous Communities (AMAN) at its centre, this community was
ambiguous about a new village law, as such a law could only provide partial support for their
cause. They preferred a law that dealt specifically with customary communities. In 2011, before
the legislative process of the Village Law was resumed, AMAN created a first draft for a new
law on the Recognition and Protection of Indigenous Communities Rights.63 A revised draft
was published in 2013.64 However, AMAN and its allies changed their policy when they found
out that they could not manage to get such a Bill included in the Prolegnas, because of the
resistance of companies exploiting the areas that the new draft would recognize as customary
lands. Recognizing that an option in the new law to establish so-called desa adat could be a
positive step towards recognition of customary communities, they decided in a pragmatic
fashion to support the Village Law as a second-best option—even if adat land rights often
58. Later in the drafting process, this was limited to 10% of the regional transfer budget; see Kompas.com (2014).
59. The good relations between Sudjatmiko and Parade Nusantara did not last when the organization decided to
support Prabowo Subianto as presidential candidate against PDI-P’s Joko Widodo. Erik (2014).
60. Ferdinand (2012).
61. Iradio (2011).
62. Later on, much of the work was carried out by a smaller committee selected from the Special Committee, the
so-called Working Committee (Panitia Kerja).
63. Rancangan Undang-Undang Tentang Pengakuan dan Perlindungan Hak-Hak Masyarakat Adat; see Aman.or.id
(2014).
64. Hukumonline.com (2013).
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14 A S I A N J O U R N A L O F L A W A N D S O C I E T Y
stretched beyond the boundaries of a single village.65 The policy community around AMAN did
little to actively support the passing of the Village Law, but it was important that they did not
oppose the law-making process. Their attitude was moreover important for those who promoted
diversity in villages, including the option for the recognition of Adat villages.
4.1.5 Better Democratic Control
A fifth policy community saw a village law as a means for facilitating better democratic
control of government institutions and their budgets.66 This “democracy” policy community
consisted of critical but idealistic CSOs, many of which receive financial support from
foreign donor institutions. It also included academics who work occasionally as consultants
and advisers for the government or for international development organizations. Their view
of village societies contrasts sharply with the one held by the policy community focusing on
customary communities: they see villages as heterogeneous entities, containing different
interest groups and socioeconomic classes.67 Moreover, they sometimes also found themselves at loggerheads with the community around Parade Nusantara, which was not much in
favour of control on the village administration. One member of this policy community,
Sutoro Eko, was included into the expert team to support the drafting committee, which
secured important input throughout the process.
4.1.6 Community Driven Development
The sixth policy community comprised the international donor institutions that have been
actively promoting decentralization since 1998. Most important among these is the World
Bank. Inspired by the idea that stronger social capital will foster development,68 the World
Bank started community-driven development (CDD) and social fund approaches during the
1990s.69 These aim at interventions that more effectively supported community development
and local accountability mechanisms. In 1998, the World Bank commenced the already
mentioned Kecamatan Development Program, which, in 2007, was replaced with the
National Program for Community Empowerment (PNPM Mandiri). PNPM focuses on
reducing poverty in all Indonesian provinces through a community planning process that
invests in small-scale infrastructure projects for individual villages and urban wards, and
which generates employment.70
For the World Bank and its allies, a new village law was attractive because it had the
potential to consolidate the PNPM programme. The World Bank and other international
donor institutions supported activities of CSOs mentioned above and facilitated public
consultations as part of their ongoing support for democratization. Meanwhile, their staff
remained in close contact with government officials for whom they acted as advisers. The
experiences with the PNPM and other village-level programmes also led to concern on their
65. In the wake of the 2014 Village Law, a Regulation of the Minister of Agrarian Affairs (Permendagri No. 52 Tahun
2014 tentang Pedoman Pengakuan dan Perlindungan Masyarakat Hukum Adat) created new options for recognition, be
it at a lower legal level than a full Law. Sopian (2014).
66. Eko, supra note 4.
67. AKATIGA, supra note 26. See more at http://www.ireyogya.org (accessed 25 August 2017).
68. Bebbington (2006), pp. 1958–76; Bebbington et al. (2006).
69. McCarthy et al., supra note 26.
70. Worldbank.org (2014).
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LAW-MAKING AS A STRATEGY FOR CHANGE
15
part about the implementation of the new law and its effects. They were therefore keen on
having sufficient supervisory mechanisms introduced into the law, to make sure that no
abuse was made of these funds.71
4.2 The Debates in the Special Committee and the Working Committee
After the Special Committee had been formed, the law-making process then continued
with the drafting and debate of the so-called Inventory of Problems (Daftar Inventarisasi
Masalah). In this document, the political parties in Parliament table the main issues they
wished to discuss. The Inventory was quite extensive, for it included all the issues that were
championed by the six policy communities mentioned. All six had managed to convince
party members involved in the debate to promote their cause. The debates were a mix of legal
and political arguments, with the government generally giving in to the positions championed by the MPs concerned. An example is the provision about the position of villages,
which, in the government Bill, was “under the regional government.” It was changed into
“villages are located in the area (wilayah) of a District/City,” with the main argument that
Article 18B of the Constitution grants them a degree of autonomy. That it was not easy to
reach this result is witnessed by the fact that the discussion took five to seven meetings within
two months. On the issue of the types of village that should be allowed, the government and
Parliament agreed to recognize “normal” and adat villages, instead of the three types of
villages that the first policy community proposed.
What all parties and the government agreed about was that the villages should be allocated
independent funds. The debate was mostly about where this money should come from. With
the government resisting the idea to have this money directly allocated from the regional or
national budget, a way out was found by deciding that these funds could be gathered from all
the separate projects that were carried out at the village level. The question then became how
much money should be allocated. The Gerindra MP proposed to just allocate IDR 1 billion
(approximately EUR 800,000) to each village, irrespective of its size and number of
inhabitants. The committee then charged a research institute to assess the amount of money
that was allocated to villages in Central Java. The result was that about 10% of the national
budget was spent at village level anyway in this form and this became the guiding percentage
in the discussions. The government, represented by the minister of home affairs, and
supported by the president’s Partai Demokrat, continued to resist including such a number in
the law. In the end, it required three consultative meetings with the leadership of Parliament,
the minister of home affairs, and the minister of finance before the matter could be settled.
Serious debate concerned the length of the term of office of village heads and how often a
village head could be re-elected, one of the major concerns for the Parade Nusantara policy
community. Proposals ranged from five to ten years, and no party proposed the same.
An important argument by those who promoted a long term of office was that village head
elections caused so much turmoil that, in order for villages to remain relatively stable, such
elections should be held as seldom as possible. In the end, all the parties agreed to a compromise that was in the middle of all proposals: six years with the possibility to be
re-elected thrice.
71. This information comes from the conversations Zakaria had with World Bank staff during consultancies he did
for them.
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16 A S I A N J O U R N A L O F L A W A N D S O C I E T Y
Only the cause championed by the policy community around indigenous rights failed to
get recognition of communal land of adat villages in the Village Law. This had to do with the
difficult position of the Ministry of Home Affairs vis-à-vis the Ministry of Forestry and the
National Land Agency, where it failed to convince these that they should accept such
regulation.
It is beyond this article to go deeper into these debates, but these above are useful illustrations to get an idea of the process. If we look at them, it is striking how serious they were
and how much substance mattered. Legal arguments played a considerable part, as did issues
of feasibility when it concerned finances, for instance. Another point is that all involved were
willing to strike compromises—the government even to a degree that no one would have
fathomed before the process started. This—we think—can only be explained by the political
situation that this law was adopted at the end of the term of both President Yudhoyono and
Parliament. All involved saw the attraction of being able to boast the promulgation of such an
important law and to cement the support from the different policy communities involved.
Indeed, after the law was passed, presidential candidate Prabowo Subianto tried to get the
credit for the passing of the Village Law, where the key role was played by PDI-P’s MP
Sudjatmiko. This finding is in line with Stephen Sherlock’s analysis of how the Indonesian
Parliament, despite its elitist nature, is forced to take its voters seriously.72 On this basis, it
may make surprisingly sensible decisions.
5. RESULTS: THE 2014 VILLAGE LAW
On 15 January 2014, the Village Bill was signed into law by President Susilo Bambang
Yudhoyono as Law no. 6/2014. It introduced five major changes to the existing village
regulation. First, the new option of choice between desa and desa adat accommodates the
wish for variety in types of villages. Recognition as a desa adat means an important step
towards recognition of customary land rights. The term desa adat is easily associated with
traditional governance through the old adat institutions, which may go against human
rights,73 but the law explicitly requires that desa adat operate in conformity with these
(Articles 98(2) and 111(2)). Second, the village is no longer regarded as a unit under the
district or subdistrict (kecamatan), but instead is an autonomous legal entity. Nonetheless,
these government levels can use the strict rules on accountability regulation to control village
budget spending, which means that, for many villages, autonomy is severely constrained. At
the same time, the opportunities for these government levels to use mark-ups and other rentseeking opportunities are reduced by a third change: the Village Law combines assets and
operating accounts meant for the village-level programmes into one national budget for
village funding (dana desa). This means that—at least in theory—the implementation of the
Village Law requires no additional budget. Fourth, the law provides for new planning and
budgeting procedures. All projects must be included into the village five-year plans
(RPJMdes) and into the yearly budget, including activities of external organizations as CSOs
and companies. A fifth innovation is the village Parliament, the musyawarah desa. This is the
highest body in village government. It curtails the power of the village head and can bring
72. Sherlock (2010), pp. 160–78.
73. Vel & Bedner (2015), pp. 493–507.
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LAW-MAKING AS A STRATEGY FOR CHANGE
17
Table 1. The realization of the policy communities’ goals in the 2014 Village Law
Policy community’s
main actorsa
Achievement in
Law no. 6/2014
Stronger position village head
Village Head Association,
Parade Nusantara
Diversity in villages and village
institutions
Recognition of customary communities
More money for the village budget
KARSA, AMAN, HUMA,
Epistema
Art. 33: lowered
requirements;
Art. 39: longer tenure
(max. 3 × 6 years)
Section XIII: desa adat
Main goals
Better democratic control—village
autonomy and musyawarah desa
Agrarian reform
More efficient community-driven
development
FPPD, IRE, Village Head
Association
FPPD, IRE, LAPPERA
KARSA, KPA. Bina Desa
Art. 72: national
budget allocation for
villages
Art. 19, Art. 54
Art. 26- j
International donor
Section IX
institutions and government
a
The abbreviations are explained in Annex 1, where we also provide a short description of the organizations and the
link to their website, if available.
a solution in cases where, under the previous situation, conflicts between the village
consultative body (BPD) and the village head would lead to a stalemate.
The objectives of these policy communities can all be perceived in the final result of the
legislative process, as indicated in Table 1. This table indicates how the policy communities
described above have all succeeded to some extent in promoting their agenda through the
new Village Law, even if some have been more successful than others. The World Bank, for
instance, saw considerable digression from its original PNPM programme, as the control
higher government bodies can exert over how village funds are being spent became
increasingly larger.
Despite these successes, the final result indicates that the Village Law reflects a compromise that still requires many policy choices before particular objectives are effectively
realized. This indeed became clear when the first implementing regulations were released
and effected by the central government in the course of 2015, leading to frustration on the
part of some of the policy communities mentioned.
6. IMPLEMENTING THE NEW VILLAGE LAW
The first disappointment for all the policy communities involved was that it took much longer
than they had expected before the new Village Law started to be implemented. Enacted in
January 2014, it took more than a year before any concrete results could be perceived. An
obvious reason was that 2014 was a year of general elections—both parliamentary elections in
April and presidential elections in July. As a consequence, the incumbent national cabinet had
the status of “outgoing” until the formation of a new cabinet, with only a limited mandate.
The newly elected President Joko Widodo presented his new cabinet on 26 October 2014, after
three months of serious reshuffling with ministries and cabinet member candidates.
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18 A S I A N J O U R N A L O F L A W A N D S O C I E T Y
Another reason for delay was the establishment of a Ministry of Villages as part of the new
government. Although this was meant to make implementation easier, in practice, it led to
bureaucratic battles between three ministries: Finance, Home Affairs and the new Villages
Ministry. The main prize was the drafting of the Village Law’s implementing legislation,
which, given the framework character of the law, is of key importance to its eventual outcomes. The main issues were the distribution and transfer of funds between various levels of
government, the management of village-owned business entities, the use of village funds,
and the arrangements of accountability. Control of these processes provides advantages in
terms of power and money.
6.1 Bureaucratic Battles over Implementing Legislation
In 2014, the Ministry of Home Affairs started designing implementing regulations on its own.
Two directorates were in charge: the Directorate on Village Government and the Directorate for
Village Development Activities. Until 2014, the bureaucratic culture in the Ministry of Home
Affairs had been geared towards efficient top-down management of Indonesia’s regional
administration. Creating a diversity of village governance institutions and providing the desa
with a large degree of autonomy—as the Village Law required—went flatly against this situation.
At the same time, the Ministry of Home Affairs put pressure on villages to choose for a status
as desa or desa adat. It held onto the term of one year mentioned in Article 116(3) for villages to
register as desa adat. In a swift move, the ministry moreover used its executive prerogative to
draft GR no. 43/2014, which was issued in June. This regulation limited the autonomy of the
desa to designate themselves as desa adat, by transferring this power to the district government
(Article 37). It also introduced considerable limitations and conditions on spending the village
funds. Key among them is the provision that village funds can only be used on the basis of the
village’s development plan. This plan needs to be approved by the district government after it
has checked on consistency with the district development plan (Article 154).
The next GR (no. 60/2014) was prepared by the Ministry of Finance to regulate the
administrative process concerning the village fund (dana desa). This regulation also put
limitations on the autonomy of villages because of the many requirements in reporting that it
introduced, and because it made village governments financially accountable via the district
to the Ministry of Finance.
In October 2014, shortly after he took office, President Jokowi created the new Ministry of
Villages, Disadvantaged Regions and Transmigration (henceforth, the Village Ministry).
It was at least partly the fruit of intensive lobbying by CSOs, which through such a new ministry
hoped to secure better access to the process of implementation. The new position
of Village Minister went to the traditional-liberal Islamic PKB, while the Ministry of
Home Affairs came into the hands of President Jokowi’s PDI-P. However, the Ministry of
Home Affairs remained involved in the Village Law implementation as well. It continued to
promote hierarchical control over village affairs, as opposed to the Village Ministry, which
supported the bottom up-approach that the CSO activists involved in making the law pursued.
In January 2015, the president issued a decree that divided the authority over villages
between the two ministries.74 The Ministry of Home Affairs remains in charge of administrative matters and village government, including policies related to local civil
74. Ina (2015).
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LAW-MAKING AS A STRATEGY FOR CHANGE
19
servants and employment. Matters related to the planning of local development programmes,
including the monitoring and the empowerment of rural communities, reside under the
Village Ministry. Additionally, the Ministry of Finance holds the main authorities related to
the village fund. Subsequently, each of these ministries has issued ministerial regulations,
which have often led to confusion for district governments about which ones they were
supposed to follow up with practical implementation. District governments explained the
slow pace of their implementation activities on the absence of implementation guidelines
from the Village Ministry as well as the lack of an instruction for technical guidance
(BIMTEK) on how to handle the financial side of village management. In 2015, both GRs
mentioned above were revised in a direction that pays more respect to village autonomy, but
the confusing situation of three ministries in charge has remained.75
6.2 Lack of Information and Capacity in Villages
There were also reasons at the local village level why the implementation of the Village Law
did not take off smoothly. First of all, there was a lack of information: many villagers did not
even know it existed and—unsurprisingly—village government officials had difficulty in
understanding the law’s implications and requirements. Some village governments were
cautious about spending the dana desa, because they feared being accused of corruption
(as discussed in a report on dana desa by the Corruption Eradication Commission KPK)76
if anything would be lacking in the accountability reports. Second, there is a shortage of
capacity at all tiers according to a report of the research body of the Village Ministry from
December 2015.77 It mentions that village budgets often arrive late because the regulations
keep on changing; there is a lack of capacity in the village for making business plans and
project proposals; there are problems with book keeping; there is a lack of facilities like
electricity, computers, and Internet access; and there is a lack of capacity to operate
communication equipment. Third, there is no assistance from village law “facilitators” yet,
who are required to help the villages with the implementation process. Under these
conditions, a market for professional services to village governments has emerged, in which
(sub-)district government officials offer their report-writing services for a fee, after
office hours.78 To counter this development, the Village Ministry has advised the government to simplify the procedures for planning and finances, such as by transferring dana desa
twice instead of three times per year, which would reduce the number of reports
accordingly.79
6.3 Absence of the Policy Communities
The policy communities that had engaged actively in making the Village Law disappeared
from centre stage after the enactment of the law. They had achieved their primary advocacy
goals and continued with other agendas. The activist members of Parliament shifted their
attention to the next legislation process, in particular the revision of the agrarian law.
75.
76.
77.
78.
79.
See Eko (2015).
See KPK (2015).
Balitlatfo (2015), p. 94.
Information from NGO field workers in Sumba, February and August 2016.
Balitlatfo, supra note 77.
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20 A S I A N J O U R N A L O F L A W A N D S O C I E T Y
Initially, some CSOs of the democracy policy community engaged in the “socialization” of
the Village Law in meetings all over the country to explain its content and opportunities.
However, funding for these activities gradually ran out, when international donor organizations shifted their focus from support for CSO advocacy to capacity-building and technical advice for government institutions that are crucial for the implementation of the law.80
The result is that the eventual realization of the policy goals of the policy communities
involved in the drafting of the Village Law is now almost completely dependent upon the
same bureaucracy they bypassed earlier in the drafting process.
7. CONCLUSION
What are the lessons we can learn from the making of the Village Law in Indonesia? How
does (participation in) making a new law help to change pre-existing dynamics of power to
arrive at new outcomes?
The genesis of the 2014 Village Law confirms that the law-making procedure in Indonesia
offers several opportunities for policy communities outside the government and the
Parliament to influence the process and its outcomes. To turn an idea into a Bill and a Bill into
a law requires quite distinct steps, from getting one’s item into the Prolegnas, via the
Academic Document, to the actual Bill and the debates in Parliament. Of particular interest in
this case is the split between government drafts and Parliament drafts. When the government
halted the process, policy communities together with an activist-turned-MP forced the
government into resuming it by threatening to have Parliament take over the initiative and thus
outmanoeuvred the government. Due to sustained pressure, lobbying and direct influence policy
communities succeeded in forcing the government to accept a law that was completely different
from the draft the government presented at the start of the debates in Parliament. Although the
president could have used a veto, in the end, he chose to boost his legitimacy by presenting the
new Village Law as a government product—whereas in fact it were the policy communities
involved that pushed the process through demonstrations, legal debate, political campaigns
during the elections for the national Parliament, and active lobbying, sponsored by international
donor organizations. An important explanation for their success is that the law lent itself to unite
a diversity of policy agendas and the communities pushing them. This was partly a matter of
chance. It is questionable whether the indigenous rights movement would have supported the
Bill if they had been allowed to promote their “own” Bill.
The main problem registered is that most policy communities lost interest once the Bill
had been passed. This may have been caused by the fact that, with the exception of the village
head association, not a single one of them saw the law as “its own,” but rather as a partial
realization of their agenda. This is a particular problem in the case of the framework laws that
are common in Indonesia. The Village Law is no exception in that it is unclear on
several points and requires many implementing regulations. That puts the ball back into the
government’s court and the first results indicate that the government is not overly enthusiastic about trying to realize the goals mentioned above.
This indicates once again that law-making as a strategy to accomplish sociopolitical
change does not end with the acceptance of the Bill by government and Parliament and the
80. See e.g. the Australian government-funded programme KOMPAK; see Kompak.or.id (2017).
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LAW-MAKING AS A STRATEGY FOR CHANGE
21
promulgation of the law. The policy communities acted as important intermediaries in the
initial stages of the vernacularization process that translated democratization ideals and
human rights into a national law aimed at increasing the welfare of the people living in
Indonesia’s nearly 75,000 villages. However, this process has not been completed. In addition to (1) the selection of a universal ideal or right as campaign goal, (2) legal mobilization
in policy communities, and (3) participating in the legal drafting process, at least three more
steps are required.
First, a negotiation process is needed with and within the executive branch of government
on how implementation will take place. This includes not only creating clarity about
authorities and drafting implementation, but also finding an answer to the reality of “practical
norms” in the bureaucracy. Those norms refer to the informal rules of the game that reflect
dynamics of power, at the national, district, and village levels of government. Second is
translating the content of the law to local situations, and its implementation. That includes
assistance to village citizens on how they can make use of the opportunities that this Village
Law provides for them. The enormous task is put into the hands of Village Law facilitators,
whom the Village Ministry has recruited mainly from the legion of people who had been
previously employed in the rural PNPM programme as facilitators for explaining the procedures of that programme and supervising village projects. However, they have never been
trained as intermediaries in the process of advocating villagers’ rights. Third, in order to be
able to change power relations at the village level, the new law should be complemented with
a complaint mechanism and sanctions. Currently, it seems the only sanction available is that,
when village governments fail in producing approved reports, the next disbursement of the
Village Fund will be cancelled. There is no mechanism yet for complaints or sanctions in
cases where powerful village elites benefit from the law’s opportunities at the expense of
marginalized groups.
It is too early to judge whether ultimately the Village Law will achieve the goals the policy
communities involved in its genesis aimed to realize. It is clear, however, that, if this is to
happen, it will be a long process that requires their continued involvement.
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LAW-MAKING AS A STRATEGY FOR CHANGE
25
ANNEX 1: DESCRIPTION OF ORGANIZATIONS MENTIONED
IN TABLE 1
Organization Description and website
AKD
AMAN
APDESI
Bina Desa
Epistema
FPPD
HuMa
IRE
KARSA
KPA
LAPPERA
Parade
Nusantara
Asosiasi Kepala Desa (Association of Village Heads), mostly regionally organized
Aliansi Masyarakat Adat Nusantara (Alliance of Indigenous People of the Achipelago),
founded on 17 March 1999 in Jakarta (http://www.aman.or.id)
Asosiasi Perangkat Desa di Seluruh Indonesia (National Association of Village
Government Officials in Indonesia) (https://id-id.facebook.com/ASOSIASIPERANGKAT-DESA-SELURUH-INDONESIA-APDESI–249969218014/)
Bina Desa (Village Empowerment) is an NGO for strengthening human resources in
villages/village empowerment, founded on 20 June 1975 in Jatiluhur, Purwakarta,
Jawa Barat (https://id.wikipedia.org/wiki/Bina_Desa)
Epistema Institute is a research and knowledge management centre on law, society, and
the environment established by Epistema Foundation on 1 September 2010 in Jakarta
(http://epistema.or.id/)
Forum Pengembangan Pembaruan Desa (Forum for Village Development and Reform)
(http://www.forumdesa.org/index.php?pilih=news&mod=yes&aksi=lihat&id=3)
Perkumpulan untuk Pembaharuan Hukum Berbasis Masyarakat dan Ekologis
(Community and Ecological Based Society for Law Reform). (http://huma.or.id)
Institute for Research and Empowerment. NGO with network of allied researchers in
Yogyakarta, working on democratization and citizenship (http://www.ireyogya.org)
Lingkar Pembaruan Desa dan Agraria (Circle for Village and Agrarian Reform)
Konsorsium Pembaruan Agraria (Agrarian Reform Consortium), based in all regions of
Indonesia, founded on 24 September 1994 in Jakarta (http://www.kpa.or.id/news/
profile/)
Lembaga Penelian dan Pemberdayaan Rakyat (Institute for Research and People’s
Empowerment), Yogyakarta
Persatuan Kepala Desa dan Aparat Desa Nusantara (Association of Village
Government Apparatus of the Archipelago), in 2009 changed into: Persatuan Rakyat
Desa Nusantara (Association of Villagers of the Archipelago)
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