Protecting "Bhinneka Tunggal Ika"

The nation is facing a tough test as a pluralistic nation in the framework of Bhinneka Tunggal Ika (Unity in Diversity).

Indonesia as a unified nation is at risk of being torn apart by certain groups. Its real form is the contestation of identity (religion and ethnicity), which is taking place not only in the capital city but also in other regions. In Yogyakarta, a district head of a minority religious community has been rejected by groups representing the majority religion.

Inter-identity tension continues to shake Bhinneka Tunggal Ika by questioning judicial procedure.

The Ahok case is the most prominent example of the existence of inter-party contestation in regard to non-compliance to procedure. The state\'s efforts to use the judicial system has been continuously undermined by groups that urge the state to follow their definition of judicial procedure.

The regulatory pluralism paradigm has apparently become part of the relationship between the state and society in defining compliance and non-compliance. The question is whether regulatory pluralism is useful to Indonesia or vice versa.

Plural regulator

Regulatory pluralism is a viewpoint that describes the state as no longer the sole actor in defining compliance and non-compliance (Gunningham et al, 1998).  The existence of multiple actors can be interpreted in two diametrically opposed perspectives.

The positive perspective believes that regulatory pluralism is a positive reflection of the democratic political system. Freedom of speech in democratic practice has built a critical culture within civil society in reading the management of regulations at the state level, from design to the enforcement of regulations.

At the design stage, civil society actively takes part in defining various concepts in regulations. This participation allows the birth of contextual regulations on values, norms and culture that become the regulation context.

At the level of enforcement, the community actively reports various violations of regulations. This is an ideal collaboration between the state and society in creating a likelihood of detection that increasingly becomes an important pillar in the creation of public compliance.

However, the regulatory pluralism paradigm also has a negative potential that is contradictory to the goals of  the regulations. First, anarchic contestation is the most feared impact in regulatory pluralism. Each party with an interest in  regulations imposes its perspectives in defining compliance and non-compliance, including by mobilizing the masses.

Second, regulatory pluralism can threaten democracy. If the state "agrees" with one of the perspectives after a mass movement, confidence in people power emerges in regard to the enforcement of regulations. This belief is contradictory to the essence of democracy whereby minorities need to be protected in the management of regulations.

Third, any community groups believe they have the legal right to define non-compliance and act on their belief. Inter-group contestation is not only at the level of argument to build a conceptual definition of compliance and non-compliance, but has been translated into street action. Vigilantism is the most visible reflection of the impact of uncontrolled regulatory pluralism.

Smart regulations

The phenomenon of rejecting the district head of a religious minority group in Yogyakarta and the dissolution of religious activities in Bandung are signs that regulatory pluralism urgently needs to be managed more carefully.  Experts of regulation management have suggested several ways to manage the pluralism regulatory phenomenon.

Neil Gunningham et al (1998) proposed a theory of smart regulation that was born in response to non-compliance in the context of environment regulations. The idea of this  theory can be applied in a wider context. This theory states that compliance and non-compliance to regulations is a result of dynamic interaction between the state, the regulatory targets and third parties in the governance system of regulations.

For example, if the state wants to regulate schools and their academic communities, the process of drafting and enforcement of the regulations should not only involve the state and the schools but also third parties, such as community institutions, educational figures and civil society. Third parties are involved in preparing the concept and designs of the regulations as well as in deciding roles in the enforcement of the regulations. This tripartite agreement is the main argument of smart regulation.

According to the theory of smart regulation, there are five main principles in the management of regulations in the regulatory pluralism era. First, a regulation must recognize inter-party interests or offer a win-win solution. This principle is in line with the teachings of democracy. In this principle, the interests of minority groups have to be taken into consideration in the process of formulating and enforcing a regulation.

Second, the state facilitates the empowerment of non-state actors to more deeply understand the mechanism and procedures of regulations, ranging from deliberation and implementation to enforcement. Equality of understanding is important to avoid misunderstandings related to the simplification of regulatory procedures. For example, the state\'s decision to define compliance and non-compliance to the regulations requires evidence and legitimate process, such as an open trial.

Third, the regulatory enforcement process should involve civil society. The state facilitates the involvement of civil society representatives in the process of assessing actions categorized as compliant or non-compliant. Transparency and accountability of the state (especially law enforcement agencies) are not sufficient to establish legitimate decisions. Regulatory pluralism requires participation to complement the enforcement of regulations.

Fourth, the regulation enforcement system is done in stages, for example, persuasion, warning letters, public punishment (publications) and criminal proceedings up to the revocation of licenses for legal entities. The state and civil society agree to define their respective roles in the enforcement of regulations.

Fifth, the purpose of the state as mentioned in the Constitution becomes the direction for the management of the participation of multiple actors in governing regulations with Bhinneka Tunggal Ika as its goal.

Smart regulation offers a framework of managing regulatory pluralism in line with democratic principles. Nevertheless, carrying out smart regulation principles is not easy, with state responsiveness and legitimacy being badly needed.

In the eyes of the state, majority and minority groups have the same right to express opinions. The legitimacy deals with the process of regulation management, which involves various actors behaving transparently and accountably.

BAHRUDDIN

Lecturer at PSDK Department of UGM and doctoral candidate at the University of Melbourne, Australia