Building A New Paradigm In State – Civil Society Relations

One of very few remaining law drafted by the New Order regime that continues to be legally valid until now is Law No. 8/1985 on Social Organization. The Law was issued in October 1985 with the purpose primarily of controlling the growing strength and number of civil society organizations. In 1980s Indonesia saw the emergence of hundred of civil society organizations that started to challenge to New Order’s grip on power.

The collapse of the New Order regime in the late 1990s brought about a dramatic change in the relationship between the State and Society. The main pillar of the New Order’s regime, the military, Golkar and state apparatus lost their legitimary to rule and pave the way for emerging role of civil society. Weakened by severe economic crisis and growing ethnic and communal conflicts in Kalimantan and Sulawesi, the post New Order State lacked legitimacy to regulate the growing numbers of civil society organisations. Emboldened by their active participation in toppling the regime, civil society demanded more role in public sphere. Majority of newly emerged civil society organizations stricly adhere to rules and regulations, but there are many who simply use civil society as their means to pursue their unlawful goals.

Demand for a change in civil society law has long been articulated. But due to the sensivity of the issue, especially among civil society leaders, the Habibie Government and its successors the Wahid and Megawati Governments simply ignored the need to revise Law No. 8/1985 on Social Organization. Even the current government has for sometimes disregarded the urgency to revise the Law. The policy of disregarding the need to revise the Law has serious implication. Majority of civil society organizations do not take the Law into consideration before committing their activities. They regard the Law a legacy of the New Order regime and therefore it is no longer valid to the current democratic set up.

People in Jakarta have for sometime complained about the government’s inability to curb the activitists of local civil society organizations that exthort money from public to run their organizations in the name of native inhabitant. In Riau Province members of Regional Representative Assembly (DPRD) established civil society organizations and inserted in local government budget (APBD) financial support for civil society organizations so that their own organizations will get financial benefit. Attacks by religious organizations against followers of Ahmadyah organizations caused serious questions as to who should be responsible for State management of civil society organizations.

State management of civil society organizations are under the responsibility of three ministries, Law and Human Rights, Social and Home Affairs, ignoring religious organizations managed by Ministry of Religious Affairs. To complicate the matter, three separate laws rule civil society organizations, No. 8/1985 on Social Organizations, Law No 16/2004 on Foundations and Law on Association drafted by the Dutch Colonial Government in 1870. Recent violent attack in National Monument committed by Islamic Defense Front against National Alliance for Freedom and Religion have revived the urgency Law No. 8/1985 on Social Organization

Difficult Task

Taken up the responsibility to revise the Law, Ministry of Home Affairs has to deal with its own image problem. As legacy of the New Order State, Ministry of Home Affairs has long been regarded as State’s main apparatus responsible for implementing repressive policy against civil society organizations. Understandably, civil society organizations have deep distrust towards the Ministry. Problem of acceptability of the draft law is another issue. Ministry of Home Affairs tackles two issues by first inviting senior leaders of civil organizations to draft the Law and engaging civil society organizations in a number of workshops and seminars about the draft Law. Engagement from international donors are also invited to provide support and input into the drafting process. Despite all these, suspicion remains amongst civil society organizations. Some civil society organizations even do not regards the need to have a new law on civil society organizations.

The draft Law team has to deal with serious and difficult questions. What will the new role for the State in the management of civil society organizations. Will the State play a direct role or will the State simply play a backseat role in dealing with the management of civil society organizations. If the State will no longer play an important role, who should act as a regulatory body for the civil society organizations, will it be a commission that has a quazy-state status or simply an association of civil society organizations that becomes an umbrealla body for all civil society organizations. Even if it is a commission, there has to be ensured that members of the commission are selected from leaders of civil society organizations themselves to ensure credibility of its role.

Both option has its own dillematic proposition. Establishing a commission will not be popular option given the fact that public has complained about the growing number commissions funded by the State Budget. But, allowing the State to have direct role in the management of civil society organizations will encounter serious challenge from civil society organizations. Relying on the possibility of having an umbrealla body for all civil society organizations will be difficult given the nature of fractionalized civil society organizations in terms of ideology, programs and activities.

Civil Society organizations have long complained that apart from enforcing registration and probition, State does not do much to help strengthening the role of civil society organizations. What should be the role of the State in the new regulatory framework. Learning from various Laws on civil society organizations in a number of countries, the drafting team agree that State has to provide tax and other benefits to the civil society organizations. Benefits from State will have to be accompanied by enforcing standards that have to be met by civil society organizations in term of legality, transparancy, accountability and adherence to rules and regulations.

Funding from foreign sources are another tricky issue. Research conducted by number of civil society organizations revealed that majority of civil society organizations heavily rely on foreign donors. What will the new Law have to say about the issue. While people tend to relate foreign funding simply in relations with western donor countries, there has been a strong beliefs funding from organizations and countries in the Middle East also flow in into the countries to financially support religious organizations. Majority of foreign funding are chanelled through international banking network, some funding enter into the country using more traditional but difficult to be traced through hawala (personal courrier) business.

Institutional interests of each ministry in maintaining their role in regulating civil society organizations is serious obstacle that will have to be deal with if the new draft Law is to be effective. Apart from Ministry of Law Human Rights, Social Welfare and Home Affairs, even State Secretary for no obvious reason recently established a new directorate in charge of civil society organizations. Trusting one ministry upon another to play a pivotal role in managing civil society organizations as part of mainstreaming regulatory framework will be tantamount to dismantling one directorate and losing the battle for more budget allocation for the ministry. Here lies the challenge. Preliminary effort by Ministry of Home Affairs to open dialog with three other ministries have led to series of discussions but somewhat in the middle it reached to nowhere.

Building A New Civil Society

Conviction that State alone will not solve all the problem and therefore civil society has the legitimate and important role to be play, especially at the time when State no longer have the capacity even the provide necessary needs of the people is proved to be justified. Even in more advanced country like the United Kingdom, the importance role played by the civil society organizations is institutionalized. In partnership with the Charity Commission for England and Wales, Ministry of Third Sector is reponsible for the State support towards the civil society organizations. In indonesia, the growing number of civil society organizations reflects that social capital owns by people of this country remain strong and therefore the State has to abandon its old role of enforcing registration and prohibition, but comes up with a new paradigm.

Now it is up to the State and the civil society organizations themselves to set up a new paradigm in State – Civil Society relations that will be more appropriate with current democratic set up. State will undoubtedly continue to play its important role, but in different way. State will have to regards itself as a guardian ensuring those who commit good deeds must be rewarded in term of subsidies, incentives and other recognitions. While those who abuse and use civil society organizations for their own benefits have to be deal with the Law. Even here, State can longer do as the New Order State did banning the civil society organizations that being perceived as challenging its authority. It is up to the court to decide whether the deed committed by civil society organizations tantamount to violating the law or not.

Civil society organizations for the time being is divided as to what should be their response to the new draft Law. But experiences from the Philippines and the United Kingdom, among others show that building a strong and viable civil society organizations need well-defined and well-designed regulatory framework that will help to delineate the boundary between responsible civil society organizations and irresponsible people who simply use civil society as a mean to pursue their own goals. Engagement of civil society organizations will be a determining factor not only in term of acceptability of the new draft Law, but as a foundation to build a strong, viable civil society organizations that this country badly need.

source: http://www.legalitas.org/?q=content/building-a-new-paradigm-in-state-%E2%80%93-civil-society-relations