Central government overriding existing and clear assignment

II.3 Central government overriding existing and clear assignment

In some cases, the sectoral Ministries promote laws or regulations even when it is already clear that the functions are adequately assigned to the provincial or district levels; this assignment is simply ignored. Ministerial regulations are in this case issued to deconcentrate functions to governors as national government representatives, even if there is no evidence of murkiness in the orignal assignment. An example is the issuance of Regulation of the Minister of National Education No. 72 Year 2009 on Deconcentration of Educational Function. Many tasks deconcentrated to governors as the government’s representatives are already clearly decentralized functions, such as management of early childhood education, primary education and secondary education. Another example in the education sector is teacher training provided by LPMP Lembaga Peningkatan Mutu Pendidikan , a technical unit UPT of the Ministry of National Education. All teachers who pursue a certain certificate, including potential school principals, must receive training from LPMP. This stands in contrast to the provision in Government Regulation No. 382007, where “the supervision and development of educators and educational personnel for early childhood, primary, secondary and non- formal education” are the functions of district governments. This infringement on decentralized functions set out in Law No. 322004 and more specifically in Government Regulation No. 382007, by means of a Regulation of the Minister of National Education No. 72 Year 2998 is legally questionable. The MONE Regulation, a lower legal instrument than Government Regulation No. 382007, certainly cannot cancel the provisions Government Regulation No. 382007 and Law No. 322004. It violates the higher legal products governing both functional assignment and the hierarchy of laws and regulations of the state’s legal system. Central and provincial government incursions through programming An additional way the central government uses to infringe on decentralized functions is to develop programs and activities that relate to these functions. In this case there are no obvious regulations issued to override existing the existing decentralization framework. Rather, the Government, and increasingly also the provinces, develop programs and activities overlapping with district programs and activities in decentralized functions. At the national level this is seen in the development of parallel national programs that ignore the decentralization framework; the PNPM for instance, that funds local groups directly, bypassing provincial and district treasurybudgeting systems though efforts are now underway to integrate it within these systems. This can be seen also in the actions of some provinces. The NTT provincial government, for example, has developed a KIA Mother and Child Health program implemented by the provincial government that clearly infringes on ignores the districts’ basic health delivery functions, including the responsibility of the district to operate health facilities such as Puskesmas and District Hospitals type C. In this same province, similar infringement occurs in the implementation of a provincial program called an independent village program “Anggur Merah” literally translated as Red Wine. This program provides a grant to Villages worth Rp 250 million to implement an empowerment program for the poor. The provincial government interprets the empowerment of the poor as a “joint function” and it therefore has the right to develop empowerment programs for the poor in villages and kelurahan within NTT. As in the earlier case, the interpretation of provincial role in empowering the poor in villageskeluarahans comes from the interpretation of Government Regulation 382007 on roles of provinces and districts, formulated in the same wording and only differentiating between provincial and district “scales.” The arrangement allows each level of government to interpret the empowerment of the poor in different ways, as they wish. Because the NTT provincial government defines poverty as a provincial-scale issue it develops its own independent village program called Anggur Merah to empower the poor in its jurisdiction. The grant of Rp 250 million provided for villages is a form of co-administration tugas pembantuan to villages. The provincial incursions in district level function is described by a former regent in NTT as if “the provincial government has sown fish in our ponds”. Others liken it and central government actions of this kind to giving freedom to a creature by “letting go of its head but catching its tail,” ultimately inhibiting the ability of districts to develop programs that really meet their aspirations and needs. The overlap problem also leads to difficulties in claiming political ownership of program benefits. Both levels can claim the benefits of the above mentioned health programs, making it unclear which level made the key contributions. Consequently, some resource persons in NTT complain about difficulty of making a performance contract between the provincial government and its officials. The overlapping activities make them difficult to measure the performance of NTT Provincial office dinas heads because the benchmark of their performance overlaps with that of district office heads. Improper construction and use of deconcentration and coadministration mechanisms The legitimate, or unwarranted, dominance of central government spending is further complicated by the inappropriate regulation and use of the deconcentrationco-administration financing channels under Government Regulation 82008 on Deconcentration and Co- administration. These are merely differentied on the basis of their physical outputs, with non- physical being the focus of deconcentration, and physical those of co-administration. This differentiation is arbitrary and does not deal with the conceptual and legal constitutional provisions relating to the types of functions these mechanisms should be supporting and the different forms of implementation and accountability they require. Ministries find it difficult to assign deconcentration to governors as national representatives or vertical agencies in regions in the case of physical activities although they think that the functions will be implemented more efficiently and effectively if they are implemented in this way by the Governor through the provincial units. Moreover, the deconcentration mechansim cannot legally reach down to the district level as the regional head at this level does not have a dual role she is only linked to the region as an autonomous region. The use of co-administration is highly variable and pporly understood. It is not much used at provincial level, and in some cases it is not used by some ministries at all for instance Forestry simply uses its own units in the field or the Govenor, through deconcentration. This denies the district level of a possible role in physical project implementation . This l evel also cannot take a leading implementation role in “non- physical” activities as they must follow the deconcentration channel tht stpos at the Governorprovince level. For either the provincial or district level, when co-administration is used, the accountability that is called for in the constitution where the regional councils are also involved in the accountability process is bypassed in view of the provisions of the regulation 82008 that treats the co-administration mechansims in much the same way as that for deconcentration. The differentiation of regional governance principles by activity nature conflicts with international practices.

II.4 Understanding the current problems in functional assignment