Tribute

A. Harding

Over the span of Professor Jan Michiel Otto's long and fruitful career in academia, he has made many contributions that are relevant to this piece. He has an abiding interest in law and development.

This piece does not in itself convey—so I convey now—the way in which Jan Michiel Otto has been an inspiration to scholars such as myself over the years. But for his inspiration and his friendship, I for one would certainly not have embarked on veins of academic work that have led me to think about areas such as (to name but one) decentralisation in Asia. The quality of his wisdom is not strained. Jan Michiel Otto exhibits wisdom in full measure, and it is right to salute such an outstanding career that has in so many ways made the world a much better place.

Introduction

Since the early 1990s, a largely unsung drive towards decentralisation has occurred across most of the world, including Asia¹ (Turner 2000; Harding and Sidel 2014). In virtually every country, subnational autonomy (extending to local governments) has increased over the last half-century. In many cases, this development has been constitutionally sanctioned or mandated (Marks, Hoogh, and Schakel 2010). Decentralisation has conferred autonomy on regional, provincial, and local government authorities. This study focuses on the latter: local government authorities. Democratic elections have increased at the subnational level, extending the reach of democracy and constitutional government.

The benefits of decentralisation and empowerment of localities (i.e., the democratisation of local governance) are generally uncontested.

Decentralisation has largely been a topic for consideration by political scientists interested in why and how decentralisation occurs, how successful or legitimate it has been, or how it helps in managing issues of ethnic or religious identity (Toniatti and Woelk 2017). Public administration and development scholars have also looked to decentralisation to maximise administrative efficiency and effectiveness, or for fiscal balancing (Frerks, Otto, and Asmerom 1996; Nelson 2004). Legal scholarship has displayed little interest in this phenomenon, despite its constitutional importance regarding origins and consequences, and its substantial impact on administrative law (cf. Davidson 2017). There is, of course, persistent interest in the theory and practice of federalism, which has largely bypassed Asia. East of India, only Malaysia has a formally federal system (Harding and Chin 2014; Brand 2017).² More recently, the constitutional aspects of asymmetric devolution, which involves special rules for devolved entities, have merited attention (e.g., Leyland 2011). Asia has instances of this (e.g., Aceh in Indonesia, Muslim Mindanao in the Philippines, and Hong Kong and Macao in the PRC). However, this chapter's consideration of local government does not include such geo­political constitutional fixes (Ghai and Woodman 2013).

With increasing prosperity and decentralisation in Asia, local governments increasingly make more decisions and provide more services and programmes. These decisions and services are often the ones that most directly affect the lives of citizens. For example, local government deeply affects spatial and development planning, the environment, and public health. Increasingly, local governments are even taking responsibility for delivering previously centralised services such as education, healthcare, and social welfare (e.g., Harding and Leyland 2011, chap. 4). Large cities, which are drivers and consumers of all aspects of development (save perhaps agriculture), have been granted unprecedented autonomy as they have grown in practice beyond their constitutional status as well as their legal boundaries. In Asia, the population of some cities exceeds that of many sovereign states across the world. Constitutional or public law has responded by increasingly granting special status to large cities, which often have equivalent power. The law has even granted such status to provinces and extended boundaries. In 2010, Taiwan recognised five cities besides Taipei as megacities entitled to enhanced powers (Yeh 2014, 46ff.; 2016, 146ff.). Bangkok and Pattaya have special statuses in Thailand’s local government structure (Harding and Leyland 2011, 125). Gubernatorial elections in Jakarta are a matter of national importance (Burhani 2017). Phnom Penh has in effect swallowed up a neighbouring province (Biddulph 2004). Myanmar has three cities with special status (Naypyidaw, Yangon, and Mandalay), each with their own development councils and mayors. Meanwhile, the Philippines has created no less than 38 ‘independent cities’ (Ishii, Hossain, and Reeves 2007).

All this has, of course, resulted in an intensification of local politics, especially in large cities. Those local leaders have in-turn been elected to national levels: Presidents Chen Shui-bian and Ma Ying-jeou of Taiwan (both former Mayors of Taipei), President Lee Myung-bak of South Korea (a former Mayor of Seoul), President Joko Widodo of Indonesia (a former Governor of Jakarta), and Philippines President Rodrigo Duterte (a former Mayor of Davao).

Decentralisation is not confined to large countries like Myanmar, the Philippines, and Indonesia. Even the small city-states of Singapore (16 town councils) (Li-ann 2009) and Hong Kong SAR (18 district councils) (District Administration 2018) have somewhat decentralised. Another small state, Brunei (with a population of less than 500,000), is an absolute monarchy, virtually without any democratic structures. However, even it has four administrative districts in which adherence to local tribal customs is allowed. Village headmen may be elected to act as mediators with the central government, creating a base for village consultation, even if not direct democracy (Commonwealth Network 2018).

Public law relating to local government has been almost entirely neglected in Asia. A notable exception is the Philippines, where the Local Government Code 1991 has received a good deal of attention (Gatmaytan 2014; Casis 1999).³ Comparative work has hardly been undertaken at all. Law schools in Asia (or indeed for that matter in any Western countries, except perhaps Canada and the United States) generally do not teach local-government law. This is a problem, especially since many legal practitioners will spend their careers dealing with issues of local democracy and various forms of public participation. These include planning law and other spatial or land issues such as compulsory acquisition, transport, and infrastructure. They can involve licensing, educational rights, and even social issues, such as the care of children and the elderly. They may cover public health and many other important local-government issues that immediately (and sometimes drastically) impact the citizens' lives and the local economy.⁴ These issues also have constitutional dimensions. These include territorial governance, the division of powers, democracy (e.g., electoral rights and freedom of information), good governance (fiscal and policy transparency and accountability), and the role of administrative and judicial dispute- resolution.⁵

This underdeveloped legal-complex is as evident in Asia as it is elsewhere. In Asia, there is a state-centric nature of dominant-party systems and a post-war subordination ofall power sources to the overriding objective of development, characteristic of the Asian developmental state.

At the same time, it bears recognition that political power and administrative capacity were centralised in Asia from the 1950s onwards, largely in pursuit of development goals. Asian developmental states (as dubbed by Chalmers Johnson and Alice Amsden) centralised power especially during the 1960s, 1970s, and 1980s (Johnson 1995; Amsden 1989; Woo-Cummings 1999; Tan 2004). In 1993, the World Bank lauded these states for having done so (World Bank 1993; The report looked at eight high-performing Asian economies). As Kevin Tan argues, states need to acquire power before they can foster development (2004, 272). This idea fits with the traditional Asian culture of respect for, as opposed to distrust of, government. For many, the Asian developmental state is still with us. But it is nonetheless rarely recognised that these developmental states have recently, from the aspect of territorial governance, disaggregated to a surprising extent, in a trend that contradicts the prevailing narrative of centralisation (see Table 1).

We will also see that decentralisation has contributed to nation­building in Asia by giving voice, expression, and continuity to local identities, which proliferate as deep cultural elements amongst Asia's teeming and extremely diverse populations (Chua and Engel 2015, 219). One overlooked objective of local government—or at least one outcome of decentralisation in Asia—has been to provide an opportunity for local difference, whether ethnic, cultural, or religious, to be expressed through the exercise of local autonomy. A striking example of this is the nagari of West Sumatra. The revival of nagari and the accompanying local customary (adat) traditions, is an outcome (even if not specifically intended) of Indonesian decentralisation (Benda-Beckmann and Benda-Beckmann 2013; Vel and Bedner 2015; Vel, Zakaria, and Bedner 2017). Another example is Mongolia's bag, which are the state's way of recognising and administrating nomadic communities. A phenomenon further from the conventional Western concept of local government can hardly be imagined. Similarly, Thailand's decentralisation process since 1997 has emphasised the preservation of customs and ways of life of ‘traditional communities'; these are recognised as constitutional rights (and duties) in successive constitutions (see below).

Asia has suffered the downsides and upsides of development. Rapid development leads to a greater disparity between rural and urban areas. Despite the overall increase in prosperity, this disparity creates political tensions that can be seen most obviously in Thailand (Glassman 2010). But they seem to be present almost everywhere. Urban areas have also experienced a kind of powerlessness as megacities have grown without limit and corresponding governance reform. The state does not normally recognise their very existence as megacity-conurbations as they grow beyond their legal boundaries.⁷ Both deprived rural communities and urban residents are left out of decision-making, adding to a demand for more local autonomy. The common Asian phenomenon ofthe flight from rural to urban areas leaves many urbanites with an insecure economic (or even legal) status in cities. This insecure status leads to pressing social issues in both rural and urban areas. Urban authorities, in particular, have difficulties responding to this need and are often in conflict with the centre.

These factors, contributing as they do to the push for decentralisation, actually pose an analytical difficulty. Those who advance developmental states' claims to success argue that they have ruthlessly centralised power in the interests of rapid development. If this is the case, then why have these same states decentralised power over the last three decades to the extent that they have, without significant retraction, and apparently no differently than other parts of the world? It is, of course, more than just a linguistic point that centralisation is a precondition of decentralisation. Asia has generally experienced progressive centralisation of power throughout its history. Recent decentralisation appears to be somewhat of a reaction to over-centralisation in the decades following World War II. Indonesia is a striking example of this (see below). Decentralisation requires considerable political will and vertical mobilisation. It also requires a devotion of resources at the centre, spreading downwards towards the locality. Powerful central agencies also need to give up some of their power. We will see that decentralisation has generally not forced central agencies to surrender power to ambitious local players. Nor has it happened in a fit of absent-mindedness. Rather, it has been a top-down enterprise that represents a considerable and deliberate disaggregation of Asia's developmental states since the early 1990s. Table 1 shows that in most cases, decentralisation in Asia commenced during that decade. Therefore, we may see this development as part of Asia's democratisation process following the end of the Cold War.

In this article, I do not attempt to investigate all of these issues or provide final proof of the stated propositions. The latter go somewhat beyond the reach of constitutional study. My purpose is rather to try to answer three related questions about this process of decentralisation.

First, how, if at all, does Asian decentralisation reflect traditional, pre­modern forms oflocal governance? Are they simply modern, standardised agencies imposed territorially? Are local authorities ‘organic' (i.e., evolving out of traditional forms of local governance) or ‘administrative' (i.e., conforming to a centrally-conceived framework)?

Second, does constitutional law in Asia provide for decentralisation in the form of something like a right to local self-government, embodying entrenched existence and/or development of autonomous local powers and democratic processes? To be clear, I am not concerned here with central government agencies operating locally, or with local agencies implementing centrally-determined policies. Instead, I focus only on democratically elected, autonomous, local self-government. For the sake of focusing the argument and evidence, I exclude one-party socialist states (the PRC, Vietnam, Laos, and North Korea). However, one can also find a surprising amount of genuine devolution of powers in those states as well, as a result of reform processes in recent decades (Harding and Sidel 2014, chaps. 2 and 4). I am principally concerned with cities and lower, sub-provincial, or sub-regional forms of government.

Third, and following from the first two questions, how is the relationship between local government and the centre provided for constitutionally or statutorily? Are local governments subject to having their powers taken away in certain circumstances?