Do Cities Really Want Human Rights?: A Socio-legal Inquiry of

Governance Performance in Decentralized Indonesia

R. Herlambang Perdana Wiratraman, Ekawestri Prajwalita Widiati and Dwi Rahayu Kristianti

Department of Constitutional Law, Faculty of Law Universitas Airlangga, Surabaya, Indonesia

Keywords: Good Governance, Human Rights City, Local Government, Local Regulation.

Abstract: A modern city concept is aiming to create liveable city which addressing many favours. Liveable city does

not mean exclusively as a beautiful, clean and IT based city. The city should be able to ensure access to

essential public service such as access to education, access to health services, free against all forms of

discrimination and intolerances, also protecting vulnerable people’s rights. In order to drive the local

governments to respect, protect and fulfill human rights, the central government of Indonesia through the

Regulation of the Minister of Justice and Human Rights No. 34 of 2016 established a set of criteria of

Human Rights Cities. This regulation then became the basis for the annual human rights cities award where

by the end of 2017 there were hundreds cities received the award. Interestingly, some cities that widely

reported dealt with serious human rights violation issues received an achievement as human rights cities.

This paper intends to analyse using socio-legal perspectives the parameters use to examine achievement of

local government implementing human rights using human rights based approach and consider supra factors

besides norms which affects the effectiveness of the norms. What the research have found that many cities

actually allowed political-economy oligarchs to exploit natural resources or build their business without

considering community’s rights protection. It seems that the local governments have been often hiding

behind formal administrative law in order to provide a smooth way of the owners of capital and facilitate

full of political economic interests of the authorities.

1 INTRODUCTION

Lately on 10

December 2017, The President of the

Republic of Indonesia Joko Widodo conferred 232

awards for Provinces, Cities/Districts categorized as

Human Rights Provinces/Cities including West Java,

Bali and Bangka Belitung (Tribunnews, 2017). A

year before, East Java and cities in the East Java

Provinces gained the same award (Surya, 2016). In

other words, there has been a long list of cities and

provinces in Indonesia that should be read reflecting

human rights principles in their local governmental

practices.

The idea of human rights cities, the "city of

human rights", is one of the initiatives developed

globally, with the aim of localizing human rights.

This idea is based on the recognition of the city as a

key player in the promotion and protection of human

rights and generally refers to a city whose

governments and populations are morally and

legally governed by human rights principles. The

initiative departs from the idea that, in order for

international human rights norms and standards to

be effective, all citizens must understand and

understand human rights, as a framework for

sustainable development within their communities.

Principles for Human Rights Cities initiates set of

rights to cities includes; non-discrimination and

affirmative action; social inclusion and cultural

diversity; participatory democracy and accountable

government; social justice, solidarity and

sustainability; leadership and political

institutionalization; mainstreaming of human rights;

effective coordination of institutions and policies;

human rights education and training, and the right to

compensation (Zainal Abidin, 2018).

According to the Article 28 I Paragraph (4) of

the 1945 Constitution of the Republic of Indonesia,

it is stated that: The protection, promotion,

enforcement, and fulfillment of human rights are the

responsibility of the state, especially the

Government. As part of the executive power that is

distributed vertically, local government carries the

same mandate of the constitution in Article 28 I

676

Wiratraman, R., Widiati, E. and Kristianti, D.

Do Cities Really Want Human Rights? A Socio-legal Inquiry of Governance Performance in Decentralized Indonesia.

DOI: 10.5220/0007549406760679

In Proceedings of the 2nd International Conference Postgraduate School (ICPS 2018), pages 676-679

ISBN: 978-989-758-348-3

Paragraph (4) to take further the aim of human rights

protection, promotion and fulfilment. Furthermore,

the Law Number 23 Year 2014 concerning Local

Government remarks that local government as the

development spearhead is expected to realize at least

two main ideas: firstly, local welfare which in turn

will contributes to national welfare and secondly, the

acceleration of democratization through public

engagement in the policy-making.

In the local government where the actual

interaction between government and society takes

place in daily basis, human rights perspective is

undeniably necessary due to the fact that the

government decision mas directly affects society

without due. Public services delivered by the local

government ranging from waste management, local

market, cemetery, education and health service, to

the issue of natural resources. Even though in the

context of Indonesian unitary system, local

government is inferior to central government. The

local government in fact exercises key power related

to locality because vertical distribution of power in

Indonesia believes that local knows better about

their need and value. As a results, local government

is in full authority to issue permits mostly for

businesses on many subjects/area for instance

mining permits, advertisement license etc. Similarly,

the authority to enact local regulation based on

locality is used to express majority group.

Under those circumstances, it is obvious that

local problems does not go far from those two.

National commission on violation against women

noted there were hundreds and counting local

regulations contain discriminative rules against

women and minority groups (Komnas Perempuan,

2010). There is tendency to express majority values

into the regulation.

Moreover, the Human Rights Cities award is not

free from criticism. Again National Commission on

Violence against Women for example, gave the

spotlight on the award given to the Governor of

Central Java as an unworthy award (Komnas

Perempuan, 2017). The commission argues that

what happened in Central Java with the destruction

and severe nature damage caused by limestone

mining that occurred in Kendeng, and the cracking

of social cohesion and even familial relationship due

to differences in pro and contra cement alignment

should be counted as a failure to realize the

promotion of human rights in Central Java. It is an

irony where in an area that clearly has human rights

issues factually granted with the human rights

award.

This article departs from that social-political

context, which using case studies for exploring the

fundamental problems of ‘human rights cities’

award and its debates. For deepening facts and its

analysis, this paper uses a socio-legal approach to

dissecting such problems.

2 THE ABSENT OF HUMAN

RIGHTS BASED APPROACH

Human Rights-Based Approach (HRBA) is a human

development process framework which based on

international human rights standards for the purpose

to promote and to protect human rights. It is argued

that HRBA has three characteristics, namely: its

objective is human rights’ fulfilment; it strengthen

the capacity of right-holders to claim their

entitlements and of duty-bearers to meet their

obligations; and principles and standards from

international human rights treaties should be a guide

to all development programs.

As a conceptual framework, HRBA must be

applied to all development’s plans, policies, process

and outcomes. It is expected that the application of

HRBA can fulfil two rationales, stating that a HRBA

is legally and morally right (intrinsic rationale) and

admitting a HRBA leads to improved and more

sustainable human development outcomes

(instrumental rationale) (The United Nation High

Commissioner of Human Rights, 2006).

HRBA begins on 1997 when the United Nations

(UN) launched the United Nations Programme for

Reform which also urged all entities within the UN

system to integrate human rights mainstreaming into

various activities and programs. Since then, HRBA

became a paradigm in the development cooperation

program. In its development each agency in the UN

gets their respective experience in the

implementation of HRBA. Hence, the UN

constructed the Statement of Common

Understanding. This Statement consists of three

aspects: (1) all programs of development

cooperation should realize human rights as stated in

the Universal Declaration of Human Rights and

other international human rights instruments, (2) all

principles and standards in the Universal Declaration

of Human Rights and other international human

rights instruments should guide all development

programs in all sectors and in all phases, (3)

development cooperation develops the capacities of

the duty-bearers fulfil the obligations and the rights-

Do Cities Really Want Human Rights? A Socio-legal Inquiry of Governance Performance in Decentralized Indonesia

677

holders entitle the rights (The United Nation High

Commissioner of Human Rights, 2006).

In the context of Human Rights Cities Award in

Indonesia, the assessment of the awardee must

complies principles and standards from at least two

main ratified international human rights treaties, the

ICCPR and the ICESCR. However, it is presumed

that a HRBA as a paradigm is not applied in the

assessment of the human rights cities awarding.

2.1 The Government Self Proclaim

13 of 18 articles in the Ministry Instrument Number

34 Year 2016 concerning Human Rights Cities

Criteria regulates the procedure of assessment

followed with appendix consist off set of questions

and forms. The assessment process begins with a

submission by the municipal government by

completing forms provided, accompanying with

supporting data. The proposed document must be

validated by the respective head of department,

government secretariat in the municipal and

provincial level. The entire document is then

submitted to the head of the regional representative

office of the Department of Law and Human Rights.

At the next step, the head of the regional office shall

examine the documents covering: arithmetic

correction; the validity of the supporting documents;

relevance between data assessment form with the

supporting documents.

In case of incompleteness or non-conformity, the

head office shall coordinate with the validator.

Whereas if the examination of documents is declared

complete then the head of the regional office send

the document to the Directorate General of Human

Rights of the Department of Law and Human

Rights. In the next process, the Directorate General

then set up an assessment team consisting of

ministry officials, non-governmental organizations

and academics. If at this stage there is a discrepancy

between the supporting data and the contents in the

form, once again the assessment team can coordinate

with the validator. Furthermore, if all documents are

in accordance with the results of the assessment, it is

then shall be reported to the General Director to be

subsequently reported to the Minister. The whole

process since the examination until reported to the

minister takes about 2 months starting on 15

September to 10 November every year.

It can be seen from this process, the city

government to be assessed apply for their own

without any participative mechanism from the grass

root. In addition, the whole sequence is mostly

document-based assessment and reflects a more

coordinative rather than evaluative mechanism.

2.2 Quantitative Question to Answer

According to Article 3 of the ministry instrument,

assessment of the fulfillment of human rights criteria

is measured within three sections: structure, process

and outcome. At the structural section, it is

questioned whether or not local government has

initiated policy through local regulation on each

matters and how much percentage of funds are

allocated for the activity in the regional budgetary

program. Assessment of the process section is

carried out on the availability of facilities,

infrastructure and human resources. Similarly, an

assessment of outcome section is also measured

trough figures.

On the measurement of the right to education, for

example, it is asked about the ratio of availability of

primary schools and the ratio of teacher availability.

Then the outcomes are measured by participation at

schools rates and literacy figures. Furthermore, on

the measurement of the rights of women and

children for example, it is asked about the existence

of counseling and rehabilitation program for women

and children victims of violence with the result

indicator is the ratio of domestic violence and the

percentage of underage workers

This assessment tool of course is obvious, but it

certainly cannot reveal what kind of effort has been

taken to ensure, for instance, the affirmative action

has been taken to ensure the poor go to school? The

use of quantitative-based assessments is actually

vulnerable to manipulation although it is indeed

easier to follow. While the qualitative assessment

does require mechanism that is not simple. However,

in the context of measuring the fulfillment of human

rights, both aspects of the assessment should be

pursued to capture the actual conditions in the cities.

Both quantitative and qualitative indicators should

be set to monitor the achievement of human rights

through development programs (The United Nation

High Commissioner of Human Rights, 2006).

3 MERE POLITICAL

TRANSACTION

Cases of mine exploitation, land grabbing and

expansion of oil palm plantations indicate the

working of that power. The law, especially the

administrative law and the judicial mechanism of

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TUN, legitimizes it effectively is used to benefit the

power of the oligarchy. The case of Kendeng

(against cement mining industry), Kulon Progo case

(for international air port project infrastructure),

Tumpang Pitu case (Banyuwangi gold mine), are

series of case illustrations. The law, in the end, is

merely devoted to the economic power of large

capital politics, and directly removes eco-social

justice.

From these cases, actually the City of Human

Rights Care is rather either administrative or

procedural model of human rights programs, instead

of the progressive realization of human rights in the

city. The question of implementation has been

always a big gap with human rights standard under

international human rights normative framework.

Similar observation has been stated by a Jakarta

based non-governmental organization, ELSAM (the

Institute for the Study and Advocacy of the Society).

The Deputy Director of the Institute for the Study

and Advocacy of the Society, Wahyudi Djafar, said

there are 227 districts in Indonesia who received the

predicate on the City of Human Rights Care at the

end of 2016. This was issued by the government and

announced by Minister Yasonna Laoly in the year

then in Surabaya, East Java, when commemorating

World Human Rights Day.

According their research, especially based on six

areas to study, such as Padang, Surakarta, Kayong

Utara, Gorantalo, East Manggarai, and Jayapura,

ELSAM measures the performance of structural

aspects, processes, and results of human rights

concerns, which show different data. “There are

areas that diligently make human rights regulations

but low on implementation results,” said Wahyudi

(Tempo, 2017).

ELSAM observed that East Manggarai was

included as human rights, the result is 33.3 percent

of the three aspects of the study, but the results were

low. Surakarta region actually gets a high rating, but

the most serious problem with such city is related to

religious intolerance.

4 CONCLUSIONS

We argued that ceremonials of the City of Human

Rights Care has actually reflected a mere political

transaction rather than a serious commitment to

improve human rights condition at field. Such

political transaction has been also showing the work

of oligarchic forces underpinned by state law policy

with the subjection of campus intellectuals who

became lubricants, gave birth to the destruction of

natural resources by corporations and the exclusion

of indigenous communities and peasants widely.

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Komnas Perempuan, 2010. Atas Nama Otonomi Daerah:

Pelembagaan Diskriminasi dalam Tatanan Negara-

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