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STUDY ON THE LEGAL ARRANGEMENTS FOR IMPLEMENTING REGIONAL AUTONOMY IN EDUCATION AND HEALTH The Perform Project, Indonesia RTI International TABLE OF CONTENTS A. Executive Summary 1. Research goals 2. The conceptual approach 2.1 Focus on assignment of functions 2.2 Reduce functions to generic categories 2.3 Limit the scope of the study within each sector 2.4 Distinguish between governance and management functions 2.5 Identify sector-specific sub-functions 2.6 Create a comparative matrix of functional assignments 2.7 Interpret the assignment of the function 3. Summary of Findings 4. Recommendations B. Difficulties with statutory analysis in Indonesia 1. Difficulty in interpreting Act No. 22 of 1999 on Regional Administration 2. Difficulty in interpreting Government Regulation No. 25 of 2000 on Regional Autonomy 3. Difficulty caused by legislative drafting in sectoral law C. Change to the legal hierarchy under regional autonomy D. Discussion of findings in the education sector 1. Policy maker 2. Employer 3. Human resources developer 4. Provider of Services 5. Provider of Facilities 6. Standard setter – governance 7. Monitoring – management 8. Regulator – governance 9. Funder E. Discussion of findings in the health sector 1. Policy maker 2. Employer 3. Human resources developer 4. Provider of Services 5. Provider of Facilities 6. Standard setter – governance 7. Monitoring – management 8. Regulator – governance 9. Research and development 10. Funder
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Appendixes 1. 2. 3. 4.
Comparative matrix: education Comparative matrix: health Compilation of education law Compilation of health law
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3 A. EXECUTIVE SUMMARY 1. RESEARCH GOALS This legal research project is designed to assist the Government of Indonesia in the implementation of its decentralization program through providing policy-level advice on the statutory and regulatory framework for decentralization. The law governing the sectors of education and health has been selected because of its relevance for the provision of government services to meet basic human needs. It was thought that analysis of legal developments in these important sectors could also be useful in identifying problems that are likely to exist in law related to other sectors of government more broadly. It is hoped that the research will contribute to ongoing efforts by the Government to ensure that sectoral legal and regulatory frameworks are consistent with Law 22 of 1999 on Regional Government (UU22/1999), Government Regulation No. 25 of 2000 regarding the Authority of the Government and the Authority of a Province as an Autonomous Region (PP25/2000) and with other relevant decentralization laws and regulations. More specifically, the research aims to:
Identify and prioritize situations where laws, regulations and other instruments governing the health and education sectors are inconsistent with or contain gaps with those which underlie decentralization;
Prepare recommendations for specific actions such as revision of key instruments, creation of new instruments, or institutional or procedural remedies to resolve these conflicts or gaps;
Assist in efforts to ensure that new sectoral instruments (such as new enabling laws for both sectors which presently exist in draft form) reflect the spirit and intent of decentralization.
2. THE CONCEPTUAL APPROACH 2.1 FOCUS ON ASSIGNMENT OF FUNCTIONS It was envisaged that a conceptual approach would be found to assist understanding legal developments in other sectors. Initial discussions with those working in each sector and a brief literature review revealed that the failure to clearly define roles and functions is a central difficulty in implementing regional autonomy in the education and health sectors.1 For this reason, the decision was made to focus on statements in legislation assigning function to a level of government or institution. The conceptual approach presented in the study is primarily a response to difficulties encountered in comparing the assignment of functions under regional autonomy law and sectoral law.
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The need to clarify of roles and authorities at each administrative level is identified in Ministerial Decree No. 4 of 2003 on the Health Policy and Decentralisation Strategy (Keputusan Menteri Kesehatan No.004/MENKES/SK/I/2003 tentang Kebijakan dan Strategi Desentralisasi Bidang). In addition, it has been recognized that government regulations need to be given ‘operational clarity’ so that they ‘are comprehensible for those who have to implement them at each level’. A key step has been said to be the making of an inventory and the conduct of review of all the legal instruments, policies, guidelines, commitments and activities at the various levels of government (Key Step No. 9).
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4 2.2 REDUCE FUNCTIONS TO GENERIC CATEGORIES It was quickly discovered that in Government Regulation No. 25 of 2000 regarding the Authority of the Government and the Authority of a Province as an Autonomous Region (PP25/2000), the assignment of functions between the various levels of government is far from clear. It is simply not possible to assess the functions in each sector against the assignments made in PP25/2000. It was also discovered that legal drafting in sectoral law lacks specificity, which means that it is difficult to discern in concrete terms the tasks to be carried out within each sector. To find definite points of reference, it was decided to consider generic functions that arise in the delivery of a national education system and the provision of public health. The functions were reduced to the following:2 Policy maker Employer Human resources developer Provider of services Provider of facilities and infrastructure Standard setter Monitor Regulator Funder. An additional function in the health sector was identified as research and development. A focus on these generic functions does not involve a judgment about which level of government within the arrangements for regional autonomy should carry out the function. It merely tries to identify certain core activities of government that must be carried out for the provision of a national education system or the delivery of public health services. 2.3 LIMIT THE SCOPE OF THE STUDY WITHIN EACH SECTOR In each sector, the scope of the study was limited. In education, it was limited to the following levels of education:
Preschool Basic education Middle level education Non formal education
These classifications follow streams of education mentioned in the new National Education Act. Higher education was left out of the study as many of the issues relevant to higher education are concerned with greater institutional autonomy in addition to decentralization. In the health sector, the study was limited to public health. Health law can be divided up theoretically and practically into a number of legal areas such as public health law, health care law, forensic medicine, environmental law and bioethics. It was decided to focus on public health law as it concerns government authority and duty to provide a health system to ensure adequate levels of health for the general public. 2
Other functions may be added to this list such as provider of information or facilitator of public participation.
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A range of services that can be expected in a public health system were identified by reference to existing legislation and studies done elsewhere on basic public health services.3 Those services were identified as follows:
Pre natal and post natal care Child health Family planning School health Vector control Chronic disease prevention Child and adult immunization Acute and episodic care Dental care Nutrition advice Health education Mental health
2.4 DISTINGUISH BETWEEN GOVERNANCE AND MANAGEMENT FUNCTIONS A distinction has been made between the assignment of a governance function and the assignment of a management function. The distinction is rarely made in Indonesia, which is likely to be due to the merging of these functions under the previous centralized system of government. In the past, Ministers have held both governance authority (through authority to issue ministerial decrees) and management authority (through the network of de-concentrated offices of central government). Under regional autonomy, the distinction between governance and management functions has become of far greater significance. These functions are no longer combined within central government but have been separated both horizontally and vertically. Central government’s role in management has been minimalised and largely devolved to the regions. Regional government now has a more prominent role in governance as it is authorized to pass legal instruments - regional regulations (Peraturan Daerah (Perda)). In addition, the regions now have the primary role in management. The increased complexity in interrelationships between governance and management functions means that these conceptually distinct functions should be able to be distinguished in the legal framework. An assignment of a governance function in Indonesia will be an assignment of: 1. Legislative authority to pass legal instruments (as set out in the legal hierarchy) 2. Judicial authority 3. Administrative authority to pass non-binding instruments such as policy and guidelines or to carry out quasi-judicial functions.4 For present purposes, the relevant governance functions are legislative and administrative. 3
Gostin LO and Hodge JG State Public Law Assessment Report, Turning Point: Public Health State Modernization National Excellence Collaborative, April 2002. 4 Administrative authority is a hybrid of legislative and judicial authority. It will be legislative in nature in relation to the drafting of policy and guidelines (non-binding by definition). It will be quasi-judicial in nature where it involves the assessment of people’s rights and obligations such as in licensing, grants of approval, imposition of administrative sanctions or resolution of disputes (outside the court system).
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The distinctive feature of an assignment of a governance function is that it will grant power to an entity to establish or adjudicate upon rights, duties, obligations and liabilities. It can be seen in a provision that grants authority to a level of government to pass laws. An example is the provision that frequently appears in statutes identifying subject matter as an area that will be covered by a government regulation. Such a provision is an assignment of a governance function to central government. Alternatively, subject matter may be identified in a national law as an area that will be covered by a regional regulation, which will be an assignment of a governance function to regional government. An assignment of a governance function will be implied in the appearance of a legislative provision that authorizes or affect rights, obligations and liabilities: the entity that created the provision must have been assigned with a governance function by a higher instrument. In comparison, an assignment of a management function will not grant authority to affect rights, duties, obligations and liabilities but will concern the completion of tasks such as the payment of staff, the construction of buildings and facilities, teaching a syllabus and providing health care services. 2.5
IDENTIFY SECTOR-SPECIFIC SUB-FUNCTIONS
In relation to each generic function, sub-functions were identified. These sub-functions may not be comprehensive and may need to be refined. However, it is suggested that they could become points of reference to consider a more specific and concrete approach to law-making. In education, the sub-functions were identified by reference to Act No. 20 of 2003 on National Education, the existing arrangements for the provision of national education and a consideration of the practical steps that need to be carried out in fulfilling functions. In health, the sub functions were identified by reference to existing sectoral law, discussion with those working in the sector and comparison with state public health laws USA.5 Examples of sub-functions are as follows: Employer Governance Determining conditions of service – recruitment, appointment, transfer, promotion, resignation, termination Determining salary levels Formulation of responsibilities of employees Determining arrangements for supervision and performance assessment Management (government institutions) Recruitment, appointment, transfer, promotion, resignation, termination Supervision and performance assessment Provider of infrastructure and facilities Governance Setting criteria for the provision of buildings and facilities, renovation and maintenance Management Provider of buildings and facilities in government institutions, renovation and maintenance 5
Note 3.
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Funder Governance Determining criteria for provision of capital funds Determining criteria for provision of recurrent funds Determination of criteria for the setting of fees Management Payment of capital expenditure Payment of recurrent expenses - salaries, maintenance of buildings and facilities Collector of fees Provider of services - education Governance Determining services to be provided – the educational program Determining the curriculum (framework and structure) Setting textbooks and syllabus Determining educational calendar and teaching hours Determining requirements for acceptance and transfer of students Scholarships and other assistance to needy students – determination of criteria for award, benefits and tenure of scholarship Setting exam content, administration and awards Management Teaching the syllabus Supply of textbooks Arrangement of scholarships and other assistance to needy students – assessment of applications, making awards and paying benefits Administration of examinations, marking and giving awards Standard setter - health Population-based standards Determination of standards to assess public health status Determination of standards to identify, diagnose and investigate diseases & public health problems Determination of standards to detect and track a public health emergency Determination of standards to monitor population-based services Quality standards Determination of standards for medicine Determination of standards for food and food additives Determination of standards for nutrition Determination of standards for traditional medicine Certification of health technology Determination of qualifications for medical personnel Management standards Determination of standards for systems of management Determination of standards for accreditation of health facilities and infrastructure Determination of indicators and quantifiable performance standards for quality control
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8 Determining criteria for managing disease prevention and control Determination of self-reporting requirements Determination of requirements for information sharing and responsibility and tasks in coordination
2.6 CREATE A COMPARATIVE MATRIX OF FUNCTIONAL ASSIGNMENTS A matrix has been prepared to include a list of sub-functions within each generic function and to distinguish between the assignment of those sub-functions under regional autonomy law (PP 25/2000), pre-regional autonomy sectoral law and post-regional autonomy sectoral law. Each function, for example policy maker, employer, provider of facilities and infrastructure, has a separate list of legislative provisions that assign functions. Each article in legislation that assigns a sub-function has been given a number and that number is entered in the matrix in the row next to the sub-function. The matrix format enables the identification of inconsistencies in the assignment of functions under PP25/2000 and sectoral law. An inconsistency will be apparent wherever an assignment of a sub-function is not made to the same level of government or institution. The matrix can also be used to identify gaps in the coverage of the legal system as a gap can be detected when a sub-function has not been assigned, or clearly assigned, to a level of government or institution. Because of the limited time available for the study, only assignments made in legal instruments (statutes, government regulations, presidential decrees and ministerial decrees passed before TAPMPR/III/2000) in each sector have been entered in the matrix. Furthermore, because of the large number of ministerial decrees, only those thought to be of particular relevance have been included. However, in the accompanying text (Parts D and E), ministerial decrees and other lower level instruments passed since regional autonomy are mentioned. 2.7 INTERPRET THE ASSIGNMENT OF A FUNCTION Assignments generally It is not always possible to discern with confidence whether an assignment of a sub-function listed in the matrix has actually been made. This is usually caused by the level of generality in Indonesia legislation, which does not descend to the same level of detail as the sub-functions in the matrix. Where there is doubt about an assignment, the number that refers to the article in the legislation appears in square brackets [ ]. Assignments in regional autonomy law Where an assignment to central or provincial government does not seem to have been made in PP25/2000 then, in accordance with Act No. 22 of 1999 regarding Regional Administration (art 11(1)) the assignment falls within the authority of district level government. Thus, in considering an assignment under regional autonomy law, consideration must be given to the implication of an omission of an assignment under PP25/2000. To indicate that a grant of authority to district government can be interpreted by the absence of an assignment in 25/2000, an asterix (*) appears in the column for district government. Interpretation is also needed regarding the effect of a grant of governance authority to central government to pass guidelines or policy, as compared to authority to pass a legally binding instrument. Where an assignment has been made under regional autonomy law to pass a guideline or policy (by definition non-binding) the number indicating the assignment has been placed in round brackets ( ). Before the content of a guideline or policy becomes legally binding, it needs to be supported by a legal instrument. This may imply a law-making function at a lower level of government. It is often difficult to
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9 draw conclusions about how it is intended the arrangement will work in practice. In any event, to indicate that there may be a need for law-making at the regional level, two asterixes (**) will appear. 3. SUMMARY OF FINDINGS The law relating to each sector covered in the report presents an enormous field for research. Given the time available, this report can only aim to provide an overview. In doing so, the report has tried to identify patterns in law-making practices as well as in the assignment of functions. The main findings of the report are as follows: Regional autonomy law is an inadequate guide for the assignment of functions within the sectors of education and health 1. UU 22/99 and PP25/2000 do not provide an adequate guide for assignment of roles and responsibilities for each level of government in each sector. An obvious reason for this inadequacy is that they do not address the assignment of functions at the district level; those functions are implied by omission, through a process of elimination. It requires a level of certainty in the assignment of functions to the central and provincial level. That level of certainty is lacking. 2. The assignment of functions in PP 25/2000 does not readily relate to actual tasks carried out within each sector. This is because the drafting in PP25/2000 is sketchy - it lacks detail and, in addition, it does not always adopt sectoral terminology. Both sectors Central government has authority for fostering national laws and legislation; however, the extent of this authority is not clear. In relation to each sector, there is a list of more specific authority and it is open to interpretation as to whether the general power is to be limited by the more specific authorities. Education Assignments that resemble management functions allocated to central government are evaluation, development and fostering. However, the meaning of these words is vague. In relation to regulatory powers, there is no explanation what those powers entail. For example, the word regulate/arrange (mengatur) when used in relation to central government authority for the national curriculum does not convey a clear meaning. Provincial government has authority for ‘extraordinary schools and training centers and/or teacher upgrading courses’ but these terms do not coincide with terminology used in education law. In addition, it is not clear whether PP25/2000 refers to training at all levels of education. Health An assignment of authority to central government to issue a guideline on the ‘efficient use’ of health personnel does not have a clear meaning in terms of personnel management. The reference to ‘community health’ does not have a readily understood meaning in terms of particular health services to be provided.
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10 The allocation to central government of authority to regulate/arrange (mengatur) the eradication and management of plagues, communicable diseases and extraordinary phenomena does not have a clear meaning. Central government’s authority for the supply of ‘certain essential medicines’ and ‘medicines for essential basic health services’ does not have a readily accessible meaning. It is not clear whether central government authority to formulate standards is limited to those aspects of health care mentioned in PP25/2000 or can be expanded with reference to the general law-making authority of central government. Provincial government has authority for the ‘placement of strategic medical personnel, transfer of particular medical personnel among districts’, the activities involved in ‘placement’ are open to interpretation and there is no definition of ‘strategic’ or ‘particular’. Provincial government has authority for ‘special medical facilities’ and infrastructure such as mental hospitals, leprosy hospitals and cancer clinics. It is not clear if this is to be a definition of ‘special medical facilities’ or a list of examples. 3. PP25/2000 is not sufficiently comprehensive. The range of sectoral activities mentioned in PP25/2000 does not sufficiently cover the activities of the sector. Education PP25/2000 does not specify the kind of standards that are relevant for the education sector such as standards on quantity input (maximum and minimum numbers of students in institutions and classes), quantity output (numbers of graduates), quality input (maximum and minimum student teacher ratios, basic facilities), quality output (student skill development - literacy and numeracy skills and advanced skill development) or standards for systems of management and institutional governance. Health There is no assignment of a function for the establishment and management of information systems, merely an assignment of authority to formulate national policy on this area. It is not clear whether provincial government’s authority for the ‘establishment of education and training for medical personnel’ applies to all aspects of the health system and all kinds of medical personnel. 4. Regional autonomy law does not distinguish between governance and management functions. Decentralization means that these functions are now separated horizontally and vertically within, and between, each level of government. The legal situation has become far more complex after decentralization. In PP25/2000, the assignment of functions to central government in the education and health sectors list governance and management functions in an unsystematic way. The use of the word mengatur in particular does not separated the governance function which can be seen in the meaning ‘to regulate’ and the management function which can be seen in the meaning ‘to arrange’.
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11 There is a lack of specificity in describing functions in sectoral law, which makes it difficult to understand the nature of the task to be carried out. 5. Sectoral law that was passed before regional autonomy has a style of legal drafting that avoids the description of functions with sufficient particularity to enable a clear, practical understanding of basic activities carried out within each sector. Education Reference to the ‘procurement, efficient use and development of education staff, curriculum, textbooks and educational materials’ (art 9(1) Government Regulation No 28 of 1990 on Basic Education) does not indicate the nature of the tasks involved. Supervision is discussed in terms of the ‘technical aspects of education and administration’. Administration is not defined and the distinction between assessment and supervision is not clear. Health The functions involved in ‘coordination of policy’ are difficult to discern (Government Regulation No. 21 of 1994 regarding Family Welfare art 1(8)) - does it refer to the coordination of policy formulation or implementation? If implementation, how is this to be coordinated? The use of the word fostering (membina) in relation to health personnel could refer to human resources development, but this is not clear. The exact nature of the activities involved in fostering are not clear. 6. Sectoral law passed after regional autonomy continues to describe functions with a lack of particularity. Education UU 20/2003 states that in basic education and middle level education management functions are within the authority of district government and the education institution (art 50(5)) without elaborating what is intended as being involved in management. Health In Presidential Decree No. 40 of 2001 regarding Guidelines for Institutions and Management of Regional Hospitals, the functions of regional hospitals are not in terms of services to be provided such as pre- and post-natal care, acute and episodic care, mental health etc but in aspirational language (art 3a). 7. When regional autonomy law and sectoral law are viewed in combination, it can be seen that there are gaps in the coverage of the legal system. Education The preparation of information, analysis and advice on teacher training and skills development. The formulation of management standards for educational institutions. Health Provision for public health information systems at the national and regional level. The formulation of population-based standards and management standards.
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8. In sectoral law passed since decentralization, the distinction between governance and management is not clearly drawn. Education: UU 20/2003 has avoided setting out the governance roles of district government, education institutions, education boards and school committees. UU 20/2003 does not allocate a governance function in human resource development to indicate which level of government has responsibility to set requirements for teacher training and skills upgrading. UU 20/2003 has avoided assigning a governance function that would state the level of government with authority to set criteria to be applied in making financial decisions. Health According to Keppres No.40 of 2001 on Institutional Guidelines for Regional Hospitals, regional hospitals are able to ‘exploit market opportunities in accordance with their capacity and implementation of their social function’ (art 5(2)). Whilst it is stated that management and responsibility is to be set out in regional regulations, there is no direct reference to regional regulations being passed on the question of how hospitals are to set their fees or the criteria to be applied. Conflicts in the assignment of functions arise between still operative sectoral law passed before decentralization and regional autonomy law 9. In legal instruments passed before regional autonomy, sub-functions are commonly not assigned to a level of government other than central government. If regional autonomy law has not expressly assigned a function to central government, sectoral law will conflict with regional autonomy law. Examples of this source of conflict exist throughout the legal framework in each sector. Examples in both sectors Employer functions such as: Management of employees – recruitment, appointment, transfer, promotion, termination Supervision and performance assessment of employees Human resources development, training and skills upgrading Provision of facilities and infrastructure is no longer a concern of central government such as: Deciding upon the provision and location of buildings and infrastructure Deciding upon the provision of facilities libraries (education) and equipment Management of costs associated with construction of buildings and infrastructure and maintenance, renovation. Examples in education Aspects of provision of educational services such as: Scholarships and other assistance to needy students-determination of criteria for award, determination of benefit and tenure of scholarship and management of scholarships Supply of textbooks Administration of examination, marking and awards Examples in health Managing the provision of health services such as:
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Determining the services to be provided Establishing the administration and carrying out the supply of drug procurement and supply for ‘non-essential’ drugs, contraceptive devices Management of the provision of health services (except those related to epidemics and extraordinary events)
The potential for conflict between sectoral law passed after decentralization and regional autonomy law is created by an avoidance of legislating on the new arrangements under regional autonomy 10. Legally binding national instruments (statutes, government regulations and presidential decrees) passed since regional autonomy generally fail to distinguish between the authority and obligation of each level of government under regional autonomy as set out in PP25/2000. Examples in education: UU 20/2003 imposes an obligation on both central and regional government to ‘foster and expand’ education personnel in government institutions without distinguishing their respective roles. UU20/2003 stated that evaluation (evaluasi) is to take place on a national basis. It states that both central and regional government carry out evaluation but it does not differentiate between each level of government. UU20/2003 does not detail roles and functions of government in managing the provision of facilities and infrastructure, it merely states that facilities and infrastructure are to be provided by the educational institution. It therefore neglects to deal with relations between government and educational institutions in this regard. The respective roles of provincial and district government in licensing educational institutions are not provided for in UU20/2003. UU20/2003 allocates an oversight function to each level involved in education: central and regional government alongside the Education Board and School Committee. Example in health: Keppres No.40 of 2001 on Institutional Guidelines for Regional Hospitals, which includes definitions for regional government, regional institutions and the Departments of Health, does not distinguish between provincial and district government within regional government. 11. Guidelines issued since regional autonomy (ministerial decrees and lower level instrument) often fail to distinguish between the authority of each level of government under regional autonomy. Examples in education: Ministerial Decree No. 012/U/2002 on a System for Assessment of Basic Education, Special Schools and Madrasah Schools provides national guidelines for the assessment of educational quality. It provides for a number of types of evaluation (arts 4&5). In relation to basic skills test, both central and provincial government have authority. In relation to educational quality assessment, both provincial and district government have authority. Ministerial Decree No. 123/U/2001 regarding Guidelines on the Appointment of Teachers which sets out the qualifications for teachers and the subject matter for tests, states that both
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14 governors and mayors are to report to central government on the implementation of the guideline. There is no differentiation of their respective roles. The Ministerial Decree No. 056/U/2001 on Financing School Education which applies to preschool, basic education, middle education and special schools does not differentiate between district and provincial government, it merely states that regional government is to pay for education from Regional Income and Expenditure (art 2). Example in health In Ministerial Decree No. 1540/MENKES/SK/XII/2002 regarding the Placement of Medical Personnel through the Period of Duty and Other Means there is a distinction between personnel that are attached to the central level and others attached to the provincial and district level (art 6-8). The distinction between those attached to the provincial and district level is not made clear. Conflicts exist between sectoral law passed after decentralization and regional autonomy law from a failure to endorse the arrangement of authority set out under PP25/2000 12. Education law passed since the introduction of regional autonomy does not follow the allocation of functions to the provinces set out in PP25/2000. Provincial policy making authority is not provided for under UU20/2003 UU 20/2003 does not acknowledge provincial government authority in relation to ‘extraordinary schools and training centers and/or teacher upgrading courses’ Whilst PP 25/2000 gives a role to the province in the supply of textbooks for preschool, basic level and middle level education as well as informal education, this role is not mentioned in UU20/2003. 13. Some national guidelines passed in education since the introduction of regional autonomy do not follow the allocation of functions set out in PP25/2000. The system for accreditation of various types of educational institutions as set out in Ministerial Decree No. 087/U/2002 on School Accreditation makes the province responsible for accreditation of special schools, middle level schools and vocational schools. This role for provinces is not supported by PP25/2000. The allocation of roles in oversight as between central, provincial and district government set out in Ministerial Decree No. 097/U/2002 regarding Guideline on the Oversight of Education, Fostering of Youth and Sport is not supported by PP25/2000. Resort to ‘law-making’ through issuing ministerial decrees leads to confusion in the assignment of law-making functions under regional autonomy 14. Since regional autonomy, most legal instruments have been passed as ministerial decrees. On a literal interpretation of the legal hierarchy set out in Decision of the MPR No. 3 of 2000 on the Sources of Law and the Order of Legislation, ministerial decrees are no longer legal instruments. A major negative impact of the proliferation of ministerial decrees and lower level instruments is that the assignment of the governance (law-making) function remains unsettled. If the content of a ministerial
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15 decree is to become binding law, it will require law-making at the regional level but this is not made explicit. The content of ministerial decrees also adds to the confusion of law-making functions under regional autonomy 15. Much of the subject matter of ministerial decrees is only appropriate for national laws as it concerns the establishment of a nationally coherent system. Many of these instruments are drafted in the same style as binding law. Furthermore, they cover content that could be expected to be in binding law such as procedures and considerations to be taken into account in decision-making. This is likely to add to the general confusion about what is expected of the regions in terms of law-making after the passing of a ministerial decree. Ministerial Decrees that apply across sectors Joint Ministerial Decree between Minister for State Apparatus and Minister of Home Affairs No. 01/SKB/M/PAN/4/2003 No. 17 of 2003 regarding Directives for Implementing Government Regulation No. 8 of 2003 regarding Guidelines for the Organisation of the Regions and Government Regulation No. 9 of 2003 regarding Authority for Appointment, Transfer and Termination of Civil Servants.6 Ministerial decrees in education Ministerial Decree No. 56 of 2001 on Guidelines for the Financing of School Education Ministerial Decree No. 123/U/2001 regarding Guidelines on the Appointment of Teachers Ministerial Decree No.044/U/2002 regarding Education Boards and School Committees Ministerial Decree No. 084/U/2002 regarding Change from the Four-month System to a Semester System Ministerial decrees in health: Ministerial Decree No. 1540/MENKES/SK/XII/2002 regarding the Placement of Medical Personnel through the Period of Duty and Other Means Ministerial Decree No. 951/MENKES/SK/VI/2000 regarding Basic Health Services in Community Health Centers Ministerial Decree No. 220/MENKES/SK/III/2002 regarding General Guidelines on the Fostering Team, Management Team and Implementation Team in Mental Health. Ministerial Circular of Minister for Health No. 1107 of 2000 Ministerial Decree No. 442/MENKES-KESOS/SK/V/2001 regarding General Guidelines on the Procurement of Medicine and Medical Services in 2001. 16. Some subject matter of ministerial decrees concerns basic rights and obligations that should be set out in law rather than non-binding guidelines.
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This instrument defies understanding in terms of its legal status - it is a joint ministerial decree (ie guideline) which acts as a directive on the implementation of a government regulation which states in its title that it is a guideline: Keputusan Bersama Menteri Pendayagunaan Aparatur Negara dan Menteri Dalam Negeri No.01/SKB/M/PAN/4/2003 No. 17 Tahun 2003 tentang Petunjuk Pelaksanaan Peraturan Pemerintah No.8 Tahun 2003 tentang Pedoman Organisasi Perangkat Daerah dan tentang Peraturan Pemerintah No. 9 tahun 2003 tentang Wewenangan Pengangkatan, Pemindahan dan Pemberhentian Pegawai Negeri Sipil.
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16 Health Ministerial Decree No. 1333/MENKES/SK/X/2002 regarding Approval for Health Research regarding Humans Circular of the Director General of Medical Services No. YM. 02.04.3.5.2504 regarding Guidelines on Rights and Obligations of Patients, Doctors and Hospitals. 4. RECOMMENDATIONS Revision of regional autonomy law Regional autonomy law must provide an adequate guide for the assignment of functions. It needs to set out the assignment of functions at each level of government (central, provincial and district). It also needs to be clearer and more precise. The assignment must be easily understood in terms of actual functions carried out within each sector and should use appropriate sectoral terminology. The assignment of functions in regional autonomy law needs to be reviewed in conjunction with the sectors in a comprehensive appraisal of the suitable level of government and institution for the basic sectoral functions. There needs to be an agreed understanding that the assignment of functions will be reflected in both regional autonomy law and sectoral law. The distinction between governance and management should be clearly drawn in regional autonomy law. An assignment of a governance function will be made by indicating the level at which laws can be made and the form of legal instrument. The assignment of a management function will be made by describing the function and allocating it to a level of government and/or institution. Revision of sectoral law There is a pressing need for new national law in the form of statutes and government regulations to address the new arrangements of authority under regional autonomy with a focus on actively assigning functions to a level of government and/or institution. Sectoral law needs to be more specific in describing functions in a concrete practical manner so that it is easy to understand the nature of the task being referred to. This is likely to require a conscious and deliberate change in approach to legal drafting that moves away from the general and abstract towards the particular and concrete. There should be a clear distinction between the assignment of a governance function and a management function in sectoral law. Resolution of conflicts in the assignment of functions Conflicts in the assignment of functions that arise between regional autonomy law and still operative sectoral law passed before decentralization need to be resolved through drafting new legal instruments. Legal instruments passed before regional autonomy need to be reviewed to identify where sub-functions are assigned to central government in a manner that is not supported by regional autonomy law. In this regard, the matrixes presented in this report could be a useful starting point. The potential for conflict between regional autonomy law and sectoral law passed after decentralization, which may arise from a failure to address the new arrangements under regional autonomy, must also be assessed. Legally binding national instruments (statutes, government regulations and presidential decrees) should provide a sufficient level of detail to exhibit the implementation of the new arrangements under regional autonomy. Instruments that do not distinguish between the authority and obligation of each level of
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17 government under regional autonomy should be amended or at least supplemented by government regulations. Change in approach to choice of law-making instruments Resort to ‘law-making’ through issuing non-binding ministerial decrees should be reconsidered. Where subject matter is appropriate for national laws, it should be drafted as national law. This requires a consideration of the generic legal subject matter that is suitable for each form of legal instrument. There needs to be a clear distinction between content suitable for guidelines as compared to laws. Guidelines should be drafted in a style that distinguishes them from binding legal instruments. The legal consequence a national guideline for the regions needs to be more closely considered. Guidelines should be drafted in a style that assists the law-making effort at the regional level. In drafting new national law, the content of existing national guidelines will need to be considered and a decision made about whether it should continue to be contained in a non-binding instrument or be included binding law. Consideration needs to be given to the location of an assignment of a function within the legal hierarchy. The advantages of having it in an instrument high up the legal hierarchy such as in an Act or Government Regulation is that it will help to ensure that information about the assignment is accessible in the regions. B. DIFFICULTIES WITH STATUTORY ANALYSIS IN INDONESIA The conceptual approach used in this study was necessitated by the level of generality and vagueness that is inherent within both regional autonomy law and sectoral law. It is often not possible to gain a clear understanding of an intended assignment under regional autonomy law in order to make a direct comparison with sectoral law. Some problems encountered in interpreting regional autonomy law, as well as sectoral law in education and health, are discussed below. 1. DIFFICULTY IN ADMINISTRATION
INTERPRETING
ACT
NO.
22
OF
1999
ON
REGIONAL
1.1 Central government authority Pursuant to Act No. 22 of 1999 regarding Regional Administration (Undang-undang No. 22 tahun 1999 tentang Pemerintahan Daerah) (UU22/1999)), all authority for central government has been given to the regions except in certain specified areas listed as foreign affairs, defence, national security, justice, finance, religion and authority in ‘other areas’ (art 7(1)). The other areas are stated to include policy regarding national planning and development in a macro sense, financial affairs, national administration, the national economy, human resources, exploitation of natural resources, higher technology, conservation and national standardisation (art 7(2)). The other areas are set out in more detail in Government Regulation No. 25 of 2000 regarding the Authority of Central and Provincial Government in Regional Autonomy (Peraturan Pemerintah Republik Indonesia No. 25 Tahun 2000 tentang Kewenangan Pemerintah Dan Kewenangan Propinsi Sebagai Daerah Otonomi) (PP 25/2000)) discussed below. 1.2 Regional government authority The assignment to regional government of authority for all government functions outside those specifically allocated to central government means that in relation to both education and health, unless an aspect of education or health has been reserved for central government, regional government has authority.
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18 Provincial government According to UU22/1999, provincial government has authority where a field of government crosses the boundary of district government in certain other areas of government (art 9(1)). Provincial authority includes authority that has not or is not yet able to be implemented by district level government (art 9(2)). It also includes authority in the field of governance that is referred to the governor as a representative of central government (art 9(3)). In relation to education and health, this provision also requires interpretation and the making of assessments at a number of stages. District government District government has the balance of government authority not allocated to central or provincial government (UU 22/99 art 11(1)). To the extent that the conferral of power to the central and provincial government suffers from vagueness, there will be uncertainty about the extent of authority at the district level. Certain fields of government, identified only by reference to the name of the sector, must be carried out (wajib dilaksanakan) at the district level (UU 22/99 art 11(2)). Those fields include education and health; however, there is no detail regarding the aspects of education and health that are the responsibility of district government. This absence of any detail becomes of particular concern as the obligation of district government differs to the mere grant of authority to provincial and central government. The effect of this rule appears to be that district government must exercise authority for education and health apart from aspects of these sectors that have been specifically allocated to central government and provincial government. Discerning the content of the obligation imposed on the district level in relation to education and health often requires a complex process of reasoning. In addition, the exact extent of the obligation is also not clear as the elucidation of article 11(2) states that the districts must implement their authority ‘in accordance with the condition of each region’. 2. DIFFICULTY IN INTERPRETING GOVERNMENT REGULATION NO. 25 OF 2000 ON REGIONAL AUTONOMY 2.1 Central government authority for education and health Education and health are not mentioned in the UU 22/99 as areas for which central government has specific authority but aspects of education and health could fall within central government’s authority in ‘other fields’. Those other fields are stated in PP 25/2000 to encompass a number of activities, some of which could conceivably relate to education and health such as ‘national planning and control over national development on a macro basis’, ‘fostering and empowerment of human resources’ and ‘national standardisation’ (PP25/2000 art 2(2)). However, the extent to which education and health are included in these activities is a question for interpretation. Education The ‘other fields’ for which central government has express authority in education are elaborated in article 2(3)11 as follows: . Type of instrument/activity a. Standard Regulation Evaluation Guidelines b. Standard
[Type here] [Type here]
Subject matter The competence of students and learners National curriculum Learning results on a national basis For the implementation of the above Basic learning materials
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19 c. Requirements d Guideline e Requirements h
Stipulation
i
Regulation and development Regulation Fostering and development
j
Obtaining and use of academic degrees Financing of educational operations Acceptance, transfer and certification of pupils, learners and university students Educational calendar, number of effective learning hours every year for primary, middle and non-formal education. Higher education, distance learning International schools The Indonesian language and literature
This list is difficult to apply for a number of reasons including: o
It is not clear whether the instruments that relate to governance (standards, guidelines, requirements and stipulations) are to be legally binding.
o
The aspects that resemble management are evaluation, development and fostering which are only convey a vague meaning.
o
Some aspects could be either governance or management such as regulation (pengaturan).
o
In relation to the regulatory powers, there is no explanation what those powers entail. The word regulation when used in relation to the national curriculum does not convey a clear meaning.
There are a number of additional areas for central government authority mentioned in PP 25/2000 as ‘various other areas’ (art 2(4)), which conceivably are relevant to education. They include:
Type of instrument/activity b. Guideline d. Macro-wise national plans e Stipulation of requirements
f
j n
Forstering and supervision Guidelines, guidance, training, directives and supervision Stipulation of standards Policies
Subject matter Determination of minimum services in fields that must be implemented by district government Accreditation of educational institutions Certification of professional staff and conditions of their position Implementation of regional autonomy
Granting of licences by regional government National information systems
It can be observed that most of the subject matter is not explicit and needs interpretation.
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20 Health The ‘other fields’ for which central government has authority in the health sector are elaborated in PP25/2000 article 2(3)10 as follows: . Type of instrument/activity a. Standard Guideline b Guideline c Standards d Guideline e Guideline f
Guideline
g
Licensing
h
Stipulation of requirement Guideline Policies Surveillance Regulation
i j
k
Supply
Subject matter Nutrition Certification of health technologies and nutrition Financing of health services Accreditation of health facilities and infrastructure Standard of education and efficient use of health personnel Use, conservation and development of and supervision over medicinal herbs Sorting out, development and application of health technologies and the ethical standard for health services Licensing for and control over the distribution of medicines and control over pharmaceutical industries The use of certain additives for foods Control over the distribution of foods System to guarantee the health of the community Epidemiological issues The eradication and management of plagues, communicable diseases and extraordinary phenomena Certain essential medicines and medicine for essential basic health (a national buffer stock)
In addition, there are areas in relation to population that are relevant to health (art 2(3)22), namely: . b
Type of instrument/activity Policy
d
Guideline
Subject matter Control over birth rates and the decline in the rates of mortality of mothers, babies and children Family quality
Preliminary comments that can be made in relation to this list are as follows: o o
o o
Functions are combined in a confusing way. For example, nutrition standards are included in the same sentence as a reference to a ‘guideline for certification of health technology. It is not clear what is entailed in ‘efficient use of health personnel’. Does it refer to conditions of service such as appointment, remuneration, promotion, resignation and termination, or does it refer to systems of management of institutions? Furthermore, in relation to health technologies the content of a guideline on ‘sorting out, development and application’ is not readily apparent. The reference to epidemiological surveillance does not indicate what is required. The reference to the supply of essential medicines suffers from a lack of a definition of ‘essential basic health services’ and ‘essential medicine’.
There are a number of other additional areas for central government authority mentioned as ‘various other areas (art 2(4))’. They include the following: . Type of instrument/activity b. Guideline
[Type here] [Type here]
Subject matter Determination of minimum services in fields that must be implemented by district government
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21 d. Macro-wise national plans f Fostering and supervision, guidelines, guidance, training, directives and supervision i Regulation j Stipulation of standards l Management m Stipulation of directives and priorities n o
Policies Stipulation
Implementation of regional autonomy
Application of international agreements or treaties ratified by the state For the grant of licences by regional government Plagues and disasters on a national scale Research activities and technologies including the research and development of strategic and high-risk technologies National information systems Requirements for the qualification of service businesses
It can be observed that most of the subject matter is not specific and needs interpretation. 2.2 Provincial Government authority for education and health PP25/2000 repeats the idea from UU22/1999 that the authority of the province encompasses government authority that crosses over districts (art 3(1)). The Elucidation states that ‘indicators’ to determine provincial authority are: (a) the guarantee of balanced development in the province (b) the even spread of services throughout the population of the province and (c) efficiency in the delivery of government services. It leaves open the question, how to determine the meaning of ‘balanced development’, ‘even spread’ and ‘efficiency’, which are value-based assessments. PP25/2000 lists areas for provincial government authority, which cross over district boundaries some of which conceivably relate to education and health (art 3 (2)), namely: Planning and macro-wise development control Training in certain fields Allocation of potential human resources, Research encompassing the province Handling communicable diseases and plant pests This drafting is unclear, vague and opaque. For example, what does it mean to plan and control development in a ‘macro’ sense? What are the ‘certain’ fields in which provinces have authority for training? What is a ‘potential human resource’? What is research ‘encompassing’ a province? Education The areas of activity for provincial government are listed as follows (art 3(5)10): . a
Type of instrument/activity Policies
b
Extension of support
[Type here] [Type here]
Subject matter Acceptance of secondary and university students from a minority, backward or financially handicapped communities Supplies of main textbooks/educational modules for kindergarten, basic education, secondary
Sarah Waddell, 2003
22
c
Supporting/assistance
d e
Consideration Establishment
education and informal education Establishment of higher education other than regulation of curricula, accreditation and appointment of academic personnel. Opening and closing of universities Extraordinary schools and training centers and/or teachers’ upgrading courses
In relation to the formulation of policy, provincial powers are limited to policy on the acceptance of secondary and university students from a minority, backward or financially handicapped communities. All the other roles relate to management functions; however, the exact nature of the management role is difficult to interpret, for example, what is ‘extension of support’ and what is the difference between ‘consideration’ and ‘establishment’? Health There is a list of areas of activity for provincial government as follows (art 3(5)9): . a b
Type of instrument/activity Guideline Management and licensing
c d
Certification Surveillance Management Placement Transfer Establishment
e
Subject matter Medical counseling and campaigns Special medical facilities and infrastructure such as psychiatric hospitals, leprosy hospitals and cancer hospitals Medical and nutritional technologies Epidemiology Communicable diseases and extraordinary phenomenon. Strategic medical personnel at district level Particular medical personnel at district level Education and training of medical personnel
It can be seen that the terminology is not clear, for example, ‘medical counseling’, ‘campaigns’ ‘strategic’ personnel, ‘particular’ medical personnel and ‘special’ medical facilities. The assignment of epidemiological surveillance to the provinces overlaps with central government. The distinction between the respective roles of central and provincial government regarding ‘plagues, communicable diseases and extraordinary phenomenon’ is not clear. 3. DIFFICULTY CAUSED BY LEGISLATIVE DRAFTING IN SECTORAL LAW 3.1 Legal drafting style The style of legal drafting in Indonesia poses major obstacles for analysis of assignment of functions. All statutes in Indonesia are drafted as general and vague framework laws. Abstract words and phrases abound with an avoidance of the concrete and specific. This makes it very difficult to apply statutes to particular situations with any certainty. Reference has to be made to lower level regulations; however, such regulations are often similarly vague in the assignment of a function. To obtain any level of specificity, it is often necessary to descend down the legal hierarchy to guidelines, ministerial circulars and documentation issued by heads of departments. These instruments are difficult to physically locate. In addition, in reading legislative provisions, it is often difficult to identify the particular task to be carried out and the actor who is assigned with the task. This is often caused by: o o
lack of clarity in describing tasks and functions and use of the passive voice, which avoids naming the actor.
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23 3.2 Education law Lack of specificity Problems determining the assignment of functions arise from the high level of abstraction. It is notable that in statutes and regulations, simple words such as textbooks (buku pelajaran), libraries (perpustakaan), school students (murid) or buildings (gedung) rarely appear. Abstract and general words and phrases In addition, generalizing words are often used, for example, penyelenggaraan. This word, which can be translated as ‘running, taking care of, operating and organising’ does not have a meaning distinct from management (pengelolaan). Furthermore, in the chapter on education management, the following words are used:
pengadaan – procurement, pendayagunaan – efficient use pengembangan – expansion pembinaan tenaga pendidikan – fostering education staff
A range of words concerning monitoring are not used to convey distinct meanings, namely: pemantauan – monitoring evaluasi – evaluation pengawasan – oversight penilaian - assessment/monitoring/evaluation Other words and phrases that do not have a specific meaning without further elaboration are: Melakukan koordinasi – carrying out coordination Dukungan - support Melaksanaan curriculum – implementation of curriculum Memberikan pelayanan pendidikan – giving educational services Memfasilitasi satuan pendidikan – facilitating of an educational unit Pelayanan teknis – technical services Pengembangan tenaga kependidikan – developing educational staff Reliance on simply naming a principle or concept Further problems are caused by frequent references to principles or concepts such as keadilan, efisiensi, transparansi, akuntabilitas publik, otonomi, jaminan mutu, evaluasi yang transparent, bekerja secara lintas daerah which are not defined or backed up with detail regarding how such principles or concepts are to be implemented. Unclear grammatical structures Difficulties in discerning clear meaning in the assignment of roles and functions are also caused by the failure to deal with different functions separately as distinct tasks within separate articles in legislation. Frequently subject matter that is distinct in nature is run together in one section or even one sentence. This leads to conflicting possible interpretations.7
7
For example, article 9 in Government Regulation No. 28 of 1990 on Basic Education and articles 13 and 14 in Government Regulation No. 29 of 1990 on Middle Level Education, which deal with the management of education. Many important and logically separate aspects of management have been joined together in a very confusing grammatical structure.
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24 3.3 Health law Poor description of operational functions The actual services to be provided as part of health care are frequently not effectively set out in health law. For example in Presidential Decree No. 40 of 2001 regarding Guidelines for Institutions and Management of Regional Hospitals, the first task of regional hospitals are stated to be (art 3a): To implement the health effort efficiently and effectively with priority being given to recovery that is carried out harmoniously, integratedly with an effort to increase and prevent as well as carry out reconciliation. This statement is aspirational; it does not indicate what regional hospitals do in terms of health care services. Abstract and general words and phrases Abstract and general words are favoured over concrete and specific meaning. An example of a phrase that does not have a specific legal meaning is ‘implement policy’ (menyelenggarakan kebijakan). The implementation of policy requires the drafting of laws and guidelines; there needs to be an assignment of a role in law-making. Examples of other words and phrases that do not convey a specific meaning in terms of a function are: arrange the elimination (pengaturan pemberantasan) tackling (penanggulangan) fostering (pembinaan) organize fostering (menyelenggarakan pembinaan) Further problems are caused by references to principles or concepts that require evaluation and as such may be subject to conflicting interpretation. For example, quality of staff and service (kualitas tenaga dan pelayaan), family quality (kwalitas keluarga) and activities that are ‘carried out effectively’ (kegiatan yang dilakukan secara berdaya guna dan berhasil guna) and optimal level of health for the community (derajat kesehatan yang optimal bagi masyarakat).
Generic words and phrases Functions are often assigned generically, which causes problems in interpretation. An example is Presidential Decree No. 40 regarding Regional Hospitals, which states that regional hospitals have the following functions (art 3 and 4): a. b. c. d. e. f. g.
Medical services (pelayanan medis) Support services (pelayanan penunjang) Nursing services (pelayanan dan asuhan keperawatan) Reconciliation services (pelayanan rujukan) Education and training (pendidikan dan pelatihan) Research and development (penelitian dan pengembangan) General and administrative services (pelayanan administrasi dan umum)
These classifications are generic and do not mention the exact nature of the services to be provided such as emergency care, pre- and post-natal care, facilities to handle public emergencies, laboratory services etc.
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25 C.
CHANGE TO THE LEGAL HIERARCHY UNDER REGIONAL AUTONOMY
Law-making in Indonesia follows a legal hierarchy under which legal instruments receive validity from a higher legal instrument. A legal instrument that does not follow the hierarchy will not be a valid instrument. This hierarchy is the fundamental structure for law-making in Indonesia. After regional autonomy, it was changed to reduce the law-making authority of central government and to provide for new law-making authority at the regional level. These changes have led to a significant level of uncertainty concerning the content of legal instruments and, in particular, the effect of a ministerial decree. 1. The first legal hierarchy The first official legal hierarchy was contained in Decision of the MPR No. 20 of 1966 regarding Sources of Law and the Order of Legislation (Ketetapan Majelis Permusyawaratan Rakyat Nomor XX/MPR/1966 tentang Sumber Hukum dan Urutan Peraturan Perundangan), as follows (Part II (A) para 1). It consisted of the following legal instruments: The Constitution (Undang-Undang Dasar 1945) (UUD 1945) Resolutions of the MPR (Ketetapan MPR) (TapMPR) Statutes (Undang-undang) (UU) Government regulations amending Statutes (Peraturan Pemerintah PenggantiUndang-undang) (Perpu) Government regulation (Peraturan Pemerintah) (PP) Presidential Decrees (Keputusan President) (Keppres) Other implementing regulations such as Ministerial Regulations (Keputusan Menteri) (Kepmen) Ministerial Instructions (Instruksi Menteri) and others. 2. Change to the legal hierarchy In 2000, the MPR established a new legal hierarchy. It is contained in Decision of the MPR No. 3 of 2000 regarding Sources of Law and the Order of Legislation (Ketetapan Majelis Permusyawaratan Rakyat Nomor III/MPR/2000 tentang Sumber Hukum dan Tata Urutan Peraturan Perundangundangan)(TapMPR/III/2000). The hierarchy sets out the law-making authority of each level of government. It also briefly describes each legal instrument. The legal hierarchy is set out as (art 2)): The Constitution (Undang-Undang Dasar 1945) (UUD 1945) Resolutions of the MPR (Ketetapan MPR) (TapMPR) Statutes (Undang-undang) (UU) Government regulations amending statutes (Peraturan Pemerintah Pengganti Undang-undang) (Perpu) Government regulation (Peraturan Pemerintah) (PP) Presidential Decrees (Keputusan President) (Keppres) Regional Regulations (Peraturan Daerah) (Perda) Regional regulations are stated to include regulations made at the following levels (art 3 (7)): a. provincial level (Peraturan Daerah Propinsi) b. local level (Peraturan Daerah Kabupaten/Kota)and c. village level (Peraturan Desa).
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26 It can be seen that Ministerial Decrees are no longer listed as a legal instruments. At the same time, new law-making authority has been granted to the regions. On a literal interpretation, it would appear that Ministerial Decrees no longer have legal status. If Ministerial Decrees are no longer legal instruments, it opens up questions concerning where the kind of provisions that formerly were located in Ministerial Decrees should now be placed: in Ministerial Decrees or higher up the legal hierarchy? If a provision is in a Ministerial Decree, it will operate only as a guideline and will not be binding at the regional level. It will also impose a law-making burden on the regions who are required to interpret it and translate it into a legal instrument. In Indonesia, there are no statements of principle or rules concerning the generic content for laws and guidelines. There are no rules concerning the appropriate legal form or vehicle for the implementation of different legal measures. In particular, there are only a small number of rules that govern the content of a statute.8 Choices need to be made at the national and regional level between issuing laws and guidelines. The general practice has been to merely state in a higher law that a certain aspect is ‘to be regulated further by …’ (diatur lebih lanjut dalam …) a certain legal instrument such as a government regulation, presidential decree, national guideline or regional regulation. There does not appear to be a clear rational for locating a legal measure in a particular legal instrument. In addition, there is no instrument to set out the hierarchy between all the forms of possible instruments.
D. DISCUSSION OF THE FINDINGS IN EDUCATION 1. POLICY MAKER Before regional autonomy, central government had clear authority for education policy making. Under regional autonomy, it can be interpreted that central government has a role in national policy making. PP25/2000 gives authority to central government for policies on national planning and control over national development on a macro basis, which could be interpreted as including education policy. Central government has authority for establishing policy on national information systems, which could be interpreted as including information systems on education. Authority has also been given to the provinces in policy making under regional autonomy. A grant of authority has been made to provincial government for the planning of and control over ‘macro-wise’ regional development where an area is cross-district in nature. Where applied to education, it requires an assessment of whether a particular aspect is ‘cross-district’ in nature. This requires interpretation and is a source of uncertainty. The only specific reference to education policy making is in regard to the acceptance of secondary and university students from minority, disadvantaged or financially handicapped communities, in regard to which authority has been given to provincial government. The sectoral law passed after regional autonomy, namely UU 20/2003 states that central government determines national education policy. It does not refer to regional policy and, accordingly, does not address the role for provincial policy making referred to in PP25/2000.
8
The only example of such rules that the author was able to find is in the Constitution where it states that certain aspects are regulated by statute such as finances (art 23), conditions for becoming a judge (art 25), structure and power of the courts (24(2), conditions for citizenship (art 26(2)), freedom of association and assembly (art 28), defence (art 30(2)).
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27 Comments for law-making New sectoral law should provide sufficient detail to cover policy making by the provinces. It should resolve the uncertainty in PP25/2000 by clarifying policy making by the provinces. It should also address the establishment of information systems. 2. EMPLOYER Governance In sectoral law passed before regional autonomy, the governance aspects of employment of personnel in education fell within the authority of central government. As most employees in education (in government institutions) are public servants, they are covered by law on public servants. According to Undang-undang No.8 Tahun 1974 and Undang-undang No. 42 tahun 1999 tentang Pokok-pokok Kepegawaian, the appointment, transfer and cessation of employment of public servants was under the authority of the President, who was able to delegate such functions to regional government. In PP25/2000, the governance authority of central government for public servants has not changed significantly. It has governance authority to stipulate a standard and procedure for planning, appointment, transfer, discharge, pension, allowances, welfare, rights and obligations and the legal position of civil servants in the regions. In 2003, central government passed Peraturan Pemerintah No. 9 Tahun 2003 tentang Wewenang Pengangkatan, Pemindahan dan Pemberhentian Pegawai Negeri Sipil. This government regulation can be assumed to apply to all education institutions. Governance over salary levels appears to be still the responsibility of central government. Under regional autonomy, teacher salaries are paid out of National Income and Expenditure (Anggaran Pendapatan dan Belanja Nasional) (APBN)). In the annexure to Ministerial Decree No. 56 of 2001 on Guidelines for the Financing of School Education (Keputusan Menteri Pendidikan Nasional No. 056/U/2001 tentang Pedoman Pembiayaan Penyelenggaraan Pendidikan di Sekolah) it is stated that salaries are to be based on the salaries of civil servants (pegawai negeri sipil (PNS)). In PP25/2000, it is also stated that central government has authority for stipulating a guideline on public service management. In this regard, a joint ministerial decree has been passed: Keputusan Bersama Menteri Pendayagunaan Aparatur Negara dan Menteri Dalam Negeri No. 01/SKB/M/PAN/4/2003 No. 17 Tahun 2003 tentang Petunjuk Pelaksanaan Peraturan Pemerintah No.8 Tahun 2003 tentang Pedoman Organisasi Perangkat Daerah. Whilst only a guideline, it reads like a law and includes provisions covering the basis for making new appointments, which conceivably affects education staff. This confuses the role of central government in the governance of employment. Since PP25/2000, Ministerial Decree No. 123/U/2001 regarding Guidelines on the Appointment of Teachers (Keputusan Menteri Pendidikan Nasional No. 123/U/2001 Tentang Pedoman pengangkatan Guru) was passed. It sets out the necessary qualifications for teachers and the subject matter for tests. Preparation of the admission test is stated to be the responsibility of central government. Both governors and mayors are to report to central government on the implementation of the guideline. The respective roles of the governor and mayor are not clarified. According to UU 20/2003, the promotion, appointment/placement and transfer of staff is arranged/regulated (diatur) by the educational institution (art 41(2)). The extent to which this provision allows for a governance function is not clear as the word diatur can have governance (regulate) or management (arrange) implications. This provision needs to be reconciled with PP 25/2000 to understand how it is to work in practice in relation to the ongoing authority of central and regional government. Management
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28 In sectoral law passed before regional autonomy, many management aspects of employment in government institutions fell within central government authority, for example, payment of salaries was organized centrally. However, before PP 25/2000, central government’s role in management was reduced. For example, Ministerial Decree No. 011 of 2000 on the Appointment of Teacher9 sets out who is to appoint teachers as divided between the provincial and district government (art 1(3) & 3(3)). The arrangements in regional autonomy do not grant a management function to central government regarding education staff. The respective authority of each level of government, according to the arrangement of the employment hierarchy across the national public service, is set out in Keputusan Bersama Menteri Pendayagunaan Aparatur Negara dan Menteri Dalam Negeri No. 01/SKB/M/PAN/4/2003 No. 17 Tahun 2003 tentang Peraturan Pemerintah No. 9 tahun 2003 tentang Wewenangan Pengangkatan, Pemindahan dan Pemberhentian Pegawai Negeri Sipil. A reconciliation between this guideline and education law is beyond the scope of this report but would be a useful exercise to understand the management functions of each level of government. As mentioned above, according to UU 20/2003, the promotion, appointment/placement and transfer of staff is arranged/regulated (diatur) by the educational institution (art 41(2)). This seems to indicate that management decisions are to be made by the institution. It also states that in basic education and middle level education management functions are within the authority of district government and the education institution (art 50(5)). In this regard, UU20/2003 implements regional autonomy law. However, it does not cover all types of educational institution such a pre-schools and non-formal education. It also lacks detail on the management aspects of education staff and the relations between government and institutions in this regard. Comments for law-making Further law-making is required by central government to elaborate the governance aspects of employment in accordance with PP25/2000. UU 20/2003 does not refer specifically to governance, which presents a gap in the legislative framework.
Sectoral law on managing employment passed before decentralization needs to be revised to ensure that central government no longer holds management functions and to clarify the roles of provincial and district government as well as the educational institutions.
3. HUMAN RESOURCES DEVELOPMENT Governance Sectoral law passed before PP25/2000 does not refer to human resources development as such, although terminology such as fostering education staff (pembinaan tenaga pendidikan) and expansion of education staff (pengembangan tenaga pendidikan) could be interpreted as encompassing human resources development activities such as the provision of technical advice, teacher training and skills upgrading. This function is allocated to central government, which would appear to have both a governance and management role. Under PP25/2000, provincial government has authority for the ‘extraordinary schools and training centers and/or teacher upgrading courses’.10 Presumably, this role requires a governance function of determining the requirements for teacher training and skills upgrading, but this is not made explicit. Sectoral law 9
Keputusan Menteri Pendidikan Nasional tentang Pedoman Pengangkatan Guru Kelas, Guru Mata Pelajaran Pendidikan Jasmani dan Kesehatan, dan Penjaga Sekolah Dasar Negeri Tahun Anggaran 1999/2000. 10 Notably these terms do not seem to coincide standard terminology within the education sector.
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29 passed since PP25/2000 does not allocate a governance function in human resource development, to indicate which level of government has responsibility for setting the requirements for teacher training and skills upgrading Management Regional autonomy law does not refer to management aspects of human resources development apart from the allocation of provincial government authority mentioned above. UU 20/2003 does not refer specifically to components of human resources development such as the provision of technical advice, teacher training and skills upgrading; however it does impose an obligation on both central and regional government to ‘foster and expand’ education personnel in government institutions. This allocation fails to distinguish between the different levels of government and does not acknowledge provincial government authority. Comments for law-making Sectoral law needs revision to remove conflicts with PP 25/2000 and to address the province’s role in training.
Greater attention needs to be given to governance aspects to address issues such as who determines requirements for information collection and who determines actual requirements for human resources development. Detail is also needed on management such as who collects information and who carries it out.
Human resources development in the different forms of education need to be addressed in more detail regarding the respective roles of central, provincial and district government as well as the institution.
4. PROVIDER OF SERVICES Governance Under sectoral law passed before regional autonomy, central government is the only level of government with authority for governance over the delivery of education services. However, in certain areas of the provision of education, institutions have had governance authority. For example, in basic education and middle level education, institutions have had authority to add subjects to the syllabus. In practice, central government had a wide scope of authority, even to the extent of choosing school textbooks (Keputusan Menteri Pendidikan Dan KeBudayaan No. 0425/U/1992 tentang Pedoman Penyusunan Buku Pelajaran (art 2(2)). Scholarships and other assistance to needy students have been governed centrally. For example, central government decided on the release of students from paying fees in middle level education: Keputusan Menteri No. 0151/K/1994 tentang Pembebasan Siswa Sekolah Lanjutan Tingkat Pertama Negeri Dari Kewajiban Ikut Menanggung Biaya Peneyelenggaraan Pendidikan. Non-government schools have had wider scope for self-governance. Under PP25/2000, central government has ongoing authority in a number of aspects of governance over the provision of services as follows: (a) It has authority for the ‘regulation’ of the national curriculum and authority for the ‘implementation of a guideline’. However, the word ‘regulation’ in relation to the national curriculum does not convey a clear meaning and neither does the reference to the ‘implementation of a guideline’. (a) It is authorized to stipulate a ‘standard’ for basic learning materials. This is a vague expression as it is not clear whether central government authority extends to detail such as determining which textbooks can be used and the teaching syllabus.
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30 (b) It has authority to stipulate the educational calendar and the number of teaching hours for primary, middle and non-formal education. (c) It has authority for determining requirements for acceptance and transfer of ‘pupils, learners and university students’, which would appear to include all types of students. (d) It can also stipulate the requirements for ‘certification’ of pupils, learners and university students, which could be interpreted as encompassing determination of content of exams and marking techniques and basis for award. (e) It has authority for stipulating conditions for the accreditation of education institutions and certification of educational professionals. Provincial government only has limited authority in governance. It has responsibility for the stipulation of ‘policies’ on acceptance of secondary and university students from minority, backward or financially disadvantaged communities. UU 20/2003 conforms with the ongoing centralized approach to governance that is set out in PP25/2000. Under the Act, central government has authority to determine requirements of educational services to be provided through the system of accreditation of educational programs and institutions. It also has authority to determine the framework and structure of the curriculum for basic and middle level education is determined by central government. However, UU 20/2003 also grants a level of institutional autonomy. There is a provision which states that the framework and curriculum structure for basic and middle level education is to be expanded by ‘each group, education unit and school/madrasah committee under the coordination and supervision of the local dinas pendidikan or local office of religion’. In relation to middle level education, it is to be done under the ‘coordination and supervision’ of the provincial dinas pendidikan or office of religion. This gives a role to both district and provincial government in curriculum development although the respective roles of all parties are not elaborated upon in UU 20/2003. UU 20/2003 does not assign functions for aspects of governance such as determining the educational calendar and teaching hours, setting requirements for acceptance and transfer of students or setting conditions for scholarships and other assistance to needy students (the criteria for award, determination of benefits and tenure). Some of these areas have been covered by Ministerial Decrees passed after regional autonomy. In 2002, central government passed a guideline on the educational calender: Ministerial Decree No. 084/U/2002 regarding Change to the System of Caturwulan to a Semester System (Keputusan Menteri No. 084/U/2002 tentang Perubahan Sistem Catruwulan Menjadi Sistem Semester). It also passed Ministerial Decree No. 125/U/2002 regarding the Education Calendar and Teaching Hours (Keputusan Menteri Pendidikan Nasional No. 125/U/2002 tentang Kalender Pendidikan dan Jumlah Jam Belajar Efektif di Sekolah). There is also a guideline on the requirements for acceptance of students: Ministerial Decree No.051/U/2002 regarding the Receipt of Students at Preschool and School (Keputusan Menteri Pendidikan Nasional No. 051/U2002 tentang Penerimaan Siswa Pada Taman Kanak-kanak dan Sekolah). As these guidelines are non-binding, they do not implement the full authority of central government provided under PP25/2000. UU 20/2003 also does not cover governance of student assessment in detail. A system of institutional accreditation is the basis of the administration of exams and the certification of students. The certification process is to be carried out by central government or an authorized agency. Exams have been made the subject of a ministerial decree. The final school exam is a national-based exam and the content is established by central government: Ministerial Decree No. 17 of 2003 on the Final National Exam 2002/2003 (Keputusan Menteri Pendidikan Nasional No. 017/U/2003 tentang Ujian Akhir Nasional
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31 Tahun Pelajaran 2002/2003). The previous final exam for completion of primary school has been abolished in line with a more school-based management approach: Ministerial Decree No. 011/U/2002 regarding the Abolition of the National Examination for Primary School (Keputusan Menteria Pendidikan Nasional No. 011/U/2002 Tentang Penghapusan Evaluasi Belajar Tahap Akhir Nasional Sekolah Dasar, Sekolah Dasar Luar Biasa, Sekolah Luar Biasa Tingkat Dasar dan Madrasah Ibtidaiyah). It has been replaced by an alternative system of evaluation. The governance functions of new institutions established under UU20/2003, namely, the Education Board and the School Committee have not been covered by the Act. Before the Act was passed, Ministerial Decree No.044/U/2002 regarding Education Boards and School Committees (Keputusan Menteria Pendidikan No. 044/U/2002 tentang Kewan Pendidikan Dan Komite Sekolah) set out a reference for the formation of these bodies. The district level of government is stated as establishing the Education Board and educational institutions establish School Committees. The Education Board has some governance functions, in particularly its function as a ‘controlling agency’ and as a mediator between central government, the DPRD and the community (Annexure I (IV)). Functions given to the Education Board that are governance functions include involvement in policy-making, the formulation of criteria and its oversight role. The School Committee also has some governance functions, in particularly its function as a ‘controlling agency’ and as a mediator between the school and the community (Annexure II (IV)). Functions given to the School Committee that are governance functions include is involvement in policymaking, the formulation of criteria and its oversight role. Management Before regional autonomy, management authority was shared between central government and institutions; however under PP25/2000, there is no authority for central government to be involved in managing the delivery of services. Provincial government’s authority for the ‘extension of support’ for the supply of ‘main’ textbooks/educational modules for kindergarten, basic education, secondary education and informal education draws it into management activities. However, what is meant by ‘extension of support’ is not clear and the meaning of ‘main’ textbooks/educational modules needs definition. Apart from this, the district level of government has an obligation to attend to most of the management aspects of the provision of education. Sectoral law passed since regional autonomy fails to address management of education in any detail. This is despite the ongoing authority within central government for governance aspects of the provision of education. The Ministerial Decree regarding Education Boards and School Committees (mentioned above) merely states that these institutions have a management role as advisory and supporting agencies in addition to their function as a vehicle for public participation. In UU20/2003, it is stated that management is the joint responsibility of the district government and institutions. This arrangement is not clearly set out under the Act and there is a lack of detail regarding the management functions of Education Boards and School Committees. Comments for law-making In most areas of governance over the provision of education, there are no direct conflict between PP 25/2000 and sectoral law due to the ongoing centralized approach. The more important problem is the need to clarify the respective roles institutions under UU20/2003. Provisions on Education Boards and School Committees should clearly distinguish between the governance and management roles of these bodies. The role of the province under PP25/2000 needs to be more closely considered. Whilst PP 25/2000 gives a role to the province in the supply of textbooks for preschool, basic level and middle level education as well as informal education, textbooks are not mentioned in UU20/2003. Allocation of functions for the management of scholarships and other forms of assistance for needy students also needs to be clarified.
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32 5. PROVIDER OF FACILITIES AND INFRASTRUCTURE Governance Sectoral law passed before regional autonomy does not mention governance aspects of the provision of facilities and infrastructure, which would concern setting criteria for the provision and location of buildings, infrastructure and facilities such as libraries and equipment. This reflects the previous merging between the governance and management functions within central government. PP 25/2000 does not allocate roles and functions for governance and, therefore, it would seem that this function falls to district government. UU20/2003 does not mention governance on the provision and location of buildings and infrastructure or the provision of facilities although it does state that the provision of facilities and infrastructure is to be the subject of a government regulation. This could be interpreted as giving central government a governance function in relation to facilities and infrastructure.
Management In still operative laws passed before regional autonomy on primary schools, regional government had responsibility for the supply, maintenance and renovation of buildings and land. In relation to costs associated with building as well as renovation and maintenance, the arrangement (as set out in government regulations) has been as follows: Primary school (govt) Primary school (non govt) Junior high school (govt) Junior high school (non govt) Senior high school (govt) Senior high school (non govt)
Regional government Institution Central government Institution Central government Institution
It seems that in relation to the provision of facilities, libraries and equipment for primary schools, the province has played a role. In relation to middle level education, central government shared responsibility with the institution (at least in relation to government schools). These arrangements conflict with regional autonomy law. As no assignment of authority for management of buildings and infrastructure has been made in PP25/2000, it is implied that district government is responsible for managing the establishment of new buildings and facilities as well as their repair and maintenance. UU20/2003 does not give detail on roles in managing the provision of facilities and infrastructure, it merely states that facilities and infrastructure are to be provided by the educational institution. It therefore neglects to deal with the government’s responsibility in this regard or relations between government and educational institutions. Comments for law-making The allocation of a governance function concerning the provision of infrastructure and facilities needs to be clarified. Criteria are needed for use in decision-making concerning the establishment of new buildings and infrastructure, repair and maintenance of existing buildings and for the provision of libraries and other facilities. Concerning management, government regulations passed before regional autonomy conflict with decentralization and need revision. The nature of the responsibility now held by district
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33 government needs to be clarified as well as the relations between district government and educational institutions. 6. STANDARD SETTER – GOVERNANCE Standards on quantity input and output Emphasis in the past, at least as evidenced by the content of government regulations, has been on standards concerning quantity inputs, which have been established by central government. The situation regarding standard setting under regional autonomy is unclear. PP 25/2000 does not indicate which level of government has responsibility for standard setting for quantity input such as standards on the number of enrolments and attendance, maximum and minimum student teacher ratios and numbers of teachers. Neither does PP 25/2000 cover standard setting for quantity output such as standards on numbers of graduates. However, there is general authority for central government in national standardization, which could be interpreted as applying to education standards on quantity input and output. Under UU20/2003, standard setting is to be carried out by a National Education Standard Quality Board, which indicates an ongoing centralized approach to standard setting. The range of types of standards that can be set centrally by the National Education Standard Quality Board conceivably includes standards on education quantity in terms of input and output. However, these standards are only to be used as a reference (art 35 (2)), which undermines the meaning of a standard. Standards on quality input and output As with quantity standards, the emphasis in the past, at least as evidenced by the content of government regulations, has been on standards concerning quality inputs. Under PP 25/2000, central government has authority for stipulating conditions for the accreditation of educational professionals, which could be regarded as a standard on quality input. Central government also has authority to set standards for assessing the competence of students and learners, which could be regarded as a standard on quality output. Although not specified, this would appear to cover setting standards for student skills development, numeracy and literacy skills as well as advanced skills development. UU20/2003 states that central government determines national education standards to guarantee education quality; however, the meaning of educational quality is not expanded upon. It states that the development of standards, monitoring and reporting on their achievement is to be done nationally by a National Education Quality Standardisation Board. The standards envisaged are listed as educational content, processes, competency, education staff, facilities and infrastructure, management, finances and assessment of education (art 35(2)). Hence, it can be seen that, in a general way, quality standards (input and output) are under the authority of central government. Ministerial Decree No. 012/U/2002 regarding a System for Assessment of Basic Education, Special Schools and Madrasah Schools (Keputusan Menteri Pendidikan Nasional No. 012/U/2002 tentang Sistem Penilaian di Sekolah Dasar, Sekolah Dasar Luar Biasa, Sekolah Luar Biasa Tingkat Dasar, dan Madrasah Ibtidaiyah) provides national guidelines for the assessment of educational quality in terms of output. However, the level of government that is to establish the indicators is not mentioned. It refers to a national standard of competency (art 7(3)) in relation to a school exam but this is not related to the skills test. It does not state which level of government is to set the criteria or indicators to be measured in the skills test.
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34 Management standards Under PP25/2000, central government has authority for determining the conditions for accreditation of educational institutions, which could be interpreted as a management standard. The precise meaning of the guideline on minimal service standards (standar pelayanan minimal) (SPM)) in relation to activities that must be carried out by district government is not clear when applied to education. Service standards would normally be regarded as standards that apply to the quality of service delivery rather than the quality of the goods produced (that is the quality of education provided – skills results etc). The status of SPMs contained in national guidelines also needs clarification. As a guideline is non-binding, its content will be need to be converted into a legal instrument. A decision is required on whether this is to be done at the national or regional level. As mentioned above, before regional autonomy, little emphasis was given to the formulation of management standards. Under UU 20/2003, management standards are included in the national education standards under central government authority through the National Education Standard Quality Board. The Minimal Service Standards are stated only to apply to preschool, basic level education and middle level education. Ministerial Decree No. 053/U/2001 has set out a Guideline for Minimal Service Standards for Basic and Middle Level Education (Keputusan Menteri Pendidikan Nasional 053/U/2001 tentang Pedoman Penyusunan Standar Pelayanan Minimal Penyelenggaraan Persekolahan Bidang Pendidikan Dasar dan Menengah).11 UU20/2003 refers to SPMs being passed for pre-school, basic level and middle level education (art 51(1)). SPMs cover such aspects as: Curriculum: subject matter, teaching material, teaching strategy (time assignment, teaching methods) language of instruction, assessment, leadership Student involvement Staff Facilities and infrastructure Organisation Finances School management Indicators of success Thus, it can be seen that the content of the SPMs covers many areas that could be included in legislation. However, SPMs merely serve to guide the activities of regional government. To be binding, the content needs to be contained in laws passed either at central or regional level. An assignment to a particular level of government for law-making on this subject matter has not been made. Comments for law-making Further attention needs to be given to the various kinds of standards that apply to a system of national education. Attention also needs to be given to the effect of the formulation of a standard. In most legal systems, a standard is considered as a binding requirement, not a mere reference tool. The question that needs to be resolved is who has authority to pass binding standards: central, provincial or district government?
11
Another ministerial decree has been passed for education outside school: Ministerial Decree 055/U/2001 on a Guideline for Minimal Service Standards for Education outside School, Youth and Sport (Keputusan Menteri Pendidikan Nasional 055/U/2001 tentang Pedoman Penyusunan Standar Pelayanan Minimal Penyelenggaraan Pendidikan Luar Sekolah, Pemuda, dan Olahraga
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UU 20/2003 seems to give this function to central government as part of the authority to pass national education standards; however, there is a question about whether these standards are intended to be binding. SPMs are contained in non-binding instruments. Their content will need to be encapsulated in legal form. The level of government authorized to pass such laws needs to be clarified.
7. MONITORING - MANAGEMENT Monitoring standards on quantity input and output Under sectoral law passed before regional autonomy, monitoring education was a centralized function. Government regulations passed before decentralization to do not clearly allocate of the respective roles of each level, particularly the role of schools, de-concentrated offices of central government and central government. In addition, the terminology describing the features to be monitored is vague. PP25/2000 does not assign functions regarding monitoring. Since PP25/2000, Ministerial Decree No. 114/U/2001 regarding National Assessment of Learning Results (Keputusan Menteri Pendidikan Nasional No. 114/U/2001 tentang Penilaian Hasil Belajar Secara Nasional) was passed. It only covers the activities of Examination Centre (Pusat Pengujian) within the Department of Research and Development within the Ministry of Education. It does not cover monitoring activities carried out at the regional level. UU20/2003 does not distinguish between monitoring educational quantity and quality standards. It states that monitoring (pemantauan) and reporting (pelaporan) on the upholding of standards nationally is to be carried out by the National Education Quality Standardisation Board. It is also stated that evaluation (evaluasi) is to take place on a national basis. At the same time, UU20/2003 states that both central and regional government carry out evaluation; it does not differentiate between each level of government. As monitoring is part of management, it falls to district level government but the assignment in UU20/2003 to the districts has only been expressly given in relation to basic level and middle level education. Monitoring standards on quality input and output It can be assumed that monitoring education quality input and output was also centralized prior to regional autonomy. PP25/2000 states that central government has authority for ‘evaluating learning results’, which may refer to monitoring standards on quality output. However, a more correct interpretation of this provision may be that central government merely evaluates data supplied to it, after monitoring activity carried out by others. Under UU20/2003, the monitoring and reporting role carried out by the National Education Quality Standardisation Board also seems to apply to educational quality. Ministerial Decree No. 012/U/2002 on a System for Assessment of Basic Education, Special Schools and Madrasah Schools provides national guidelines for the assessment of educational quality. As it is a mere guideline, its contents need to be converted into legal form to be binding at the regional level. It provides for a number of types of evaluation of educational quality as follows: (arts 4&5). (a) (b) (c) (d)
class evaluation: school responsibility final examinations: school responsibility basic skills test: central and provincial government12 educational quality assessment: provincial and district government13
12
Pemerintah, Dinas Propinsi dan Kanwil (Kantor Wilayah Departemen Agama). Dinas Propinsi, Kanwil, Dinas Kabupaten/Kota dan Kandep (Kantor Departemen Agama di Kabupaten/Kota). 13
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Thus, it can be seen that the guideline does not make a definitive assignment between each level of government. It also does not state how coordination is to be achieved between levels of government. Monitoring management standards PP 25/2000 does not mention the monitoring of management standards and therefore district government has the primary role in monitoring management standards. UU20/2003 includes management standards in its definition of national education standards that are monitored by the National Education Quality Standardisation Board which gives an ongoing role for central government in monitoring the management of educational institutions. Ministerial Decree No. 87 of 2002 on School Accreditation (Keputusan Menteri Pendidikan Nasional No. 087/U/2002 tentang Akreditasi Sekolah) allocates a role for central government in monitoring and evaluation of the implementation of accreditation and reporting the results of accreditation on a national basis. In the context of accreditation, the role for central government does not conflict with PP25/2000. These arrangements do not elaborate upon the role of district government or the School Committee and Education Board in monitoring the management of educational institutions. Although provided for to some extent in Ministerial Decree No.044/U/2002 regarding Education Boards and School Committees (Keputusan Menteria Pendidikan No. 044/U/2002 tentang Kewan Pendidikan Dan Komite Sekolah), this instrument is only a guideline. Comments for law-making The terminology concerning monitoring needs to be clarified. The different functions involved in monitoring (pemantauan) and evaluation (evaluasi/penilaian) needs to be defined and set out to enable a clearer assignment of functions in sectoral law. A link needs to be made between monitoring activity and national education standards. The role for central government in monitoring national education standards appears to be ongoing but the exact nature of the role needs to be clarified. Further detail is needed on the role and function of the National Education Quality Standardisation Board. The respective roles of central, provincial and district regional government as well as the role of the School Committee and Education Board need to be clarified. In relation to management standards, special attention needs to be given to the role of district government, the School Committee and Education Boards. 8. REGULATOR - GOVERNANCE Establishment of basic rights, obligations and prohibitions The role of central government in the establishment of basic rights, prohibitions and obligations has not changed. Under PP 25/2000, the imposition of basic prohibitions and obligations in education falls within central government authority for law-making. UU20/2003 contains basic obligations such as the obligation on children aged 6 years of age to attend school and the obligation on both central and regional government to ensure that basic education is provided without fees. Licensing Under PP 25/2000, central government has been given authority to set standards for the granting of licenses by the regions. This appears to grant authority on licence conditions and licensing procedure; however, it does not extend to authority for licensing itself, which by implication has been given to district government. UU20/2003 seems to contradict this arrangement as it states that every educational
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37 institution must obtain a licence from central or regional government. Thus, central government is given a role in licensing that does not seem to be supported by PP25/2000. Central government has authority under PP25/2000 for accreditation. Accreditation under UU20/2003 appears to be separate from licensing but the distinction is not made entirely clear. UU20/2003 states that accreditation of a program or educational institution is to be carried out by central government and/or an independent body (art 60(2)). However, before the Act was passed, Ministerial Decree No. 87 of 2002 on School Accreditation (Keputusan Menteri Pendidikan Nasional No. 087/U/2002 tentang Akreditasi Sekolah) established a system for accreditation of various types of educational institutions. Under the guideline, central government is concerned with activities such as setting policy, monitoring and evaluation of the implementation of accreditation and reporting the results of accreditation on a national basis. According to the guideline, the district is responsible for the accreditation of preschools, basic level schools and junior secondary School (Sekolah Lanjutan Tingkat Pertama)(SLTP) and the province is responsible for accreditation of special schools, middle level schools and vocational schools. This allocation does not seem to correspond with assignment of functions under PP25/2000, particularly regarding provincial authority. Law enforcement PP 25/2000 is silent in relation to law enforcement. It would appear that activities involved in enforcement falls within district government authority. Responsibility for law enforcement is also not clearly assigned in UU20/2003. UU20/2003 allocates oversight (pengawasan) to each level involved in education, namely, central and regional government, Education Boards and School Committees. This provision appears to indicate that oversight is related to law enforcement rather than the monitoring of the achievement of education standards. However, there is some uncertainty about this conclusion as Ministerial Decree No. 097/U/2002 regarding Guideline on the Oversight of Education, Fostering of Youth and Sport (Keputusan Menteri No. 097/U/2002 tentang Pedoman Pengawasan Pendidikan, Pembinaan Pemuda dan Pembinaan Olahraga) seems to have a far broader conception of oversight (art 1(4)). It allocates roles in oversight as between central, provincial and district government (art 10-12) and methods of oversight (art 15). UU 20/2003 states that central or regional government is able to revoke a licence. This is a form of administrative sanction. No further details on administrative sanctions are provided. It can be noted that the assignment does not distinguish between the roles of each level of government. Furthermore, there is no mention of the level of government with responsibility for other aspects of law enforcement. Comments for law-making Further law-making is required to allocate respective roles of each level of government in both the licensing of educational institutions and accreditation of courses and institutions. This should include provisions on the licensing process and more detail on the type of conditions that may be included in a licence. The role of district and provincial government in accreditation needs to be reviewed. The concept of oversight needs to be clarified in relation to monitoring education standards and law enforcement. The respective roles of central, provincial and district government as well as the Education Board and School Committee need to be set out in a legal instrument rather than merely in a guideline. The law on enforcement is undeveloped and needs further attention, in particular the role of district government, sanctions and procedures.
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38 9. FUNDER Governance In sectoral law, a governance role in funding is not specified. The only direct reference in PP25/2000 to governance of funding is a statement that central government has authority to determine a guideline on financing educational operations, which may mean that there is a limited role for central government in governance. In 2001, a guideline was passed on Financing School Education (Keputusan Menteri Pendidikan Nasional No. 056/U/2001 tentang Pedoman Pembiayaan Pengyelenggaraan Pendidikan Di Sekolah). The guideline applies to preschool, basic education, middle education and special schools. It does not differentiate between district and provincial government, it merely states that regional government is to pay for education from Regional Income and Expenditure (Anggaran Pendapatan dan Belanja Daerah (APBD) (art 2). It refers to subsidies by regional government to non-government schools but does not mention the basis for their calculation (art 5). All education costs are to be financed from the APBD, including capital and recurrent expenditure and the costs of regional education departments. Payment is to be made directly to schools (art 7(1)) based on a calculation made by regional government. The decree details the costs that can be allowed for each type of activity undertaken at an institution (art 7(2) & (3)). In contrast, UU20/2003 makes provision for the passing of government regulations on a number aspects of funding. This opens the way to central government to play a stronger role in governance of funding by setting criteria to be applied in decision-making. Such a role could be authorized under the general lawmaking role of central government. Management In sectoral law passed before regional autonomy, funding was a joint responsibility of central government and the institution. In the funding of primary schools, the Ministers for Education and Finance arranged a subsidy, the size of which would be set by the Minister for Home Affairs, Minister for Finance and Minister for Education. The subsidy was paid by central government to the Governor who would issue an order to the head of the regional education office who would release the funds to school principals. This arrangement can be seen in Joint Ministerial Decree of the Ministers for Education and Culture and Finance No. 576a/KMK.03/1989 tentang Subsidi/Bantuan Pembiayaan Penyelenggaraan Sekolah Dasar Negeri. PP25/2000 does not grant authority to central or provincial government for funding and therefore, the assumption is that it is managed by district government. Laws on regional finance indicate that the regions are responsible for funding education - Peraturan Pemerintah No. 105 tahun 2000 tentang Pengelolaan dan Pertanggungjawaban Keuangan Daerah.. They are responsible for paying salaries of public servants (art 29(1)). Regional government is also responsible for the management of regional property (art 31-32). This indicates that regional government is to meet the costs maintaining existing facilities. It does not cover the payment for new educational facilities. UU 20/2003 does not indicate the respective roles of central and regional government and the community in financing education. Financial management is stated to be a shared responsibility of central government, regional government and the community. Funds are to be provided to educational institutions in the form of grants (dana hibah) ‘in accordance with existing legislation’. This ‘existing legislation’ is not referred to by name. The same arrangement applies to funds provided by central government to regional government. This means that there is still a degree of discretion available to both regional governments and institutions concerning how to use the funds granted to them. Notably, no distinction is made between the roles of provincial and district government in the reference to regional government.
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39 Funder: comments for law-making Governance aspects of funding allocations need to be given a legal basis. As central government has general authority to pass law, it would be able to pass government regulations setting out binding criteria for the provision of capital funds, recurrent funds and setting fees payable by the public.
The assignment of management functions needs to be clarified. UU 20/2003 does not distinguish between the roles of the province, district, institution or community in managing the funding of education. There needs to be harmonization between ‘existing legislation’ on regional finances, including explicit references to financial legislation that is relevant to funding education.
E. DISCUSSION OF FINDINGS IN THE HEALTH SECTOR 1. POLICY MAKER Under sectoral law, the formulation of health policy is a responsibility of central government. This arrangement is continued under PP 25/2000, which states that central government has authority for policies on guaranteeing community health (art 2(3)10i). There is a grant of authority to central government to develop policy on birth control and the control of mortality rates of mothers, babies and children (art 2(3)22b). In addition, there is a grant of authority to central government to pass policy on national information systems (art 2(4) n). However, under regional autonomy, authority is also granted to provincial government for planning and control over ‘macro-wise’ regional development where an area is cross-district in nature (art 3(2)). If applied to public health, it requires an assessment of whether a particular aspect of health is ‘crossdistrict’ in nature. This requires interpretation and is a source of uncertainty. Since regional autonomy, a circular issued by the Minister for Health No. 1107 of 2000 (Surat Edaran No. 1107/MENKES/E/VII/2000) states that the province is responsible for ‘fostering and oversight of the stipulation of health policy’. The circular confirms provincial authority for policy but a circular is not a legal instrument. In addition, it does not indicate the aspects of health for which provinces have authority in the formulation of policy. Comments for law-making 1. Regional autonomy law needs to assign policy making functions in more detail. 2. Pre-regional autonomy sectoral law, which does not provide for regional health policy, requires amendment. 2. EMPLOYER Governance Under pre-regional autonomy law, many employees in the health sector are covered by the law on the public service. Detailed provisions regarding classification of health personnel have been made nationally (for example, Keputusan Menteri No. 01/MENKES/SK/1/2000 tentang Petunjuk Pelaksanaan Pengisian Daftar Penilaian Pelaksanaan Pekerjaan Pegawai Pada Rumah Sakit di Lingkungan Departemen Kesehatan. Other ministerial decrees set salary levels such as salaries of doctors (Keputusan Bersama Menteri Kesehatan dan Kesehahteraan Sosial dan Menteri Keuangan No. 1537/MenkesKesos/KB/X/2000 410/KMK.O3.2000 tentang pelaksanaan Penggajian Dokter dan Bidan Sebagai Pegawai Tidak Tetap Selama Masa Bakti). However, not all health personnel are civil servants as some are temporary staff (pegawai tidak tetap)(PTT)).
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40 In PP25/2000, central government has ongoing governance authority in employment. It is authorized to stipulate a standard and procedure for planning, appointment, transfer, discharge, pension, allowances, welfare, rights and obligations and the legal position of civil servants in the regions. This authority would appear to grant authority to central government to issue binding laws on these matters. Since PP25/2000, Peraturan Pemerintah No. 9 Tahun 2003 tentang Wewenang Pengangkatan, Pemindahan dan Pemberhentian Pegawai Negeri Sipil has been passed, which is binding on all medical personnel who are public servants. It has also been stated that the hospital has authority for personnel in accordance with existing laws (Presidential Decree No. 40 of 2001 regarding Guidelines for Institutions and Management of Regional Hospitals (art 6)); those laws are not mentioned by name. However, it seems to endorse an ongoing role for central government in governance issues relating to employment of health personnel. Under PP25/2000, central government has authority to stipulate a guideline on public service management (PP 25/2000 2(3)19c). In this regard, a joint ministerial decree has been passed: Keputusan Bersama Menteri Pendayagunaan Aparatur Negara dan Menteri Dalam Negeri No. 01/SKB/M/PAN/4/2003 No. 17 Tahun 2003 tentang Petunjuk Pelaksanaan Peraturan Pemerintah No.8 Tahun 2003 tentang Pedoman Organisasi Perangkat Daerah dan 2003 tentang Peraturan Pemerintah No. 9 tahun 2003 tentang Wewenangan Pengangkatan, Pemindahan dan Pemberhentian Pegawai Negeri Sipil. Whilst only a guideline, it is drafted in the same manner as a binding legal instrument. Central government also has authority for stipulating a guideline on the ‘efficient use’ of health personnel (art 2(3)10d). In sectoral law, medical staffing has been made the subject of ministerial decrees. One example is Ministerial Decree No. 1540/MENKES/SK/XII/2002 regarding the Placement of Medical Personnel through the Period of Duty and Other Means (Keputusan Menteri No. 1540/MENKES/SK/XII/2002 tentang Penempatan Tenaga Medis Melalui Masa Bakti dan Cara Lain). Another example is Ministerial Decree on the Extension of the Compulsory Medical Service for Doctors (Keputusan Menteri No. 1446.A/MENKES/KESOS/SK/IX/2000 tentang Petunjuk Teknis Pelaksanaan Perpanjangan Masa Bakti Bidan PTT dan Pengembangan Karier Pebidan Pasca PTT). Management PP25/2000 does not assign functions for the management aspects of being an employer such as the recruitment, appointment, transfer, supervision, promotion, dismissal and actual payment of salaries. This appears to assign management functions to district government. Under PP25/2000, there is an allocation to provincial government for the ‘placement of strategic medical personnel, transfer of particular medical personnel among districts’ (art 3(5)9e). However, activities involved in ‘placement’ are open to interpretation and there is no definition of ‘strategic’ or ‘particular’. Presidential Decree No. 40 of 2001, mentioned above, states that in regional hospitals, ‘authority for personnel is handled by the institution. This instrument does not address ‘authority for personnel’ in other kinds of hospital or government clinics. For example, ‘vertical hospitals’ are still run by central government, which continues to have management authority. Community Health Centers (Puskesmas) are run by district government. A more comprehensive review is required to establish the assignment of functions in managing employment in each aspect of services provided in the health sector. Ministerial Decree No. 1540 distinguishes between personnel attached to central government and others attached to a province or district (art 6-8). The distinction depends on the locality of the placement (art 12) and affects the level of government authorized to make the placement and the selection procedure. For example, personnel attached to the central level are appointed centrally (art 12(1)) but may be transferred by district government (art 16). The distinction between those attached to a province and district is not made clear in the Ministerial Decree.
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41
In the Ministerial Circular No. 1107 of 2000, the province is not expressly assigned with a function to manage employment but it is implied in ‘running’ the following: provincial level health facilities the system for provincial food and nutrition awareness the provincial health information system. The district level is obliged to carry out the following activities, which would involve managing the employment of health personnel: implementation of district health effort/facility implementation of public health effort and promotion prevention and eradication of diseases in the district epidemiological surveillance and settlement of epidemic/unusual outbreak in the district implementation of environmental health effort and monitoring developmental impacts on health in the district health maintenance and development in the district arrangement of food and nutrition surveillance system in the district control activities o f traditional medicine control of health effort/facility in the district control of environmental health in the district Comments for law-making 1. Under regional autonomy, central government has a governance function concerning the employment of public servants generally; however, the situation is less clear regarding medical personnel who are not public servants. Regional autonomy law and sectoral law needs to more clearly assign the governance function concerning employment in the health sector overall. 2. Under regional autonomy, the management function of being an employer is clearly no longer within the authority of central government, except where there is a direct employment relationship with central government. Sectoral law needs to clarify employment relations regarding the roles and functions of particular institutions, district government and provincial government. 3. HUMAN RESOURCES DEVELOPER Governance In sectoral law passed before regional autonomy, the role of human resources developer could be interpreted as being covered by fostering (membina). Responsibility for fostering has been allocated to central government, which could be interpreted as covering both the governance of human resources development activities and the management of these activities. Under PP25/2000, central government no longer has a governance role in human resources development. It only has authority for passing a guideline on the standard of education of health personnel (art 2(3)10d). Authority has been granted to the provinces for ‘establishment of education and training for medical personnel’ (art 3(5)9e). It is not clear whether this implies the assignment of a governance function to the provinces. Sectoral law passed since regional autonomy has not addressed the governance aspects of human resources development. Management Central government no longer has authority for managing human resources development in the health sector. Thus, the management function falls to the provinces and districts. The extent of provincial
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42 authority is not clear. In Presidential Decree No. 40 of 2001 regarding Guidelines for Institutions and Management of Regional Hospitals (Keputusan Presiden No. 40 Tahun 2001 tentang Pedoman Kelembagaan Pengelolaan Rumah Sakit Daerah) it is stated that regional hospitals have an education and training function (art 4). This appears to partially implement the new arrangements under regional autonomy; however, it only covers regional hospitals and, in addition, regional hospitals can be run by the district. Comment for law-making 1. It would seem that the provinces may have governance and management functions in human resources development, but this needs to be clarified under regional autonomy law. 2. Sectoral law should elaborate on regional functions in the human resources development. 4. PROVIDER OF SERVICES Provision of health services Governance Before regional autonomy, the centralization of governance functions meant that decision-making relating to services to be provided in various areas of health care was within the authority of central government. For example, a decision to set up an infectious diseases hospital has been a decision made by central government. Central government has also instigated activities such as the setting up of working groups to combat dengue fever. In 2000, a government regulation was passed on the management of government hospitals, which shows the degree of central government involved in government hospitals: Government Regulation No. 6 of 2000 regarding State Owned Service Companies (PP No. 6 Tahun 2000 tentang Perusahaan Jawatan (PERJAN). The regulation sets out the roles and responsibilities of the institution and central government in government hospitals, which are wholly owned by the government and are established to provide services for the general public. The Minister of Finance has responsibility for the finances of PERJAN; they are established by a government regulation and their finances are part of state finances. Fees are set by the Minister and management is responsible to the Minister. One interpretation of PP25/2000 could be that central government has a limited governance function in the provision of health services. However, central government’s policy making authority on community health (art 2(3)10i) could be argued to imply a governance function. ‘Community health’ is not a defined term; however, arguably it could include policy on the provision of public health services. However, formulating policy is different from law-making: policies require translation into law through the process of legal drafting. Under PP 25/2000, central government has authority for arranging/regulating the eradication and handling/management (pengaturan pemberantasan dan penanggulangan) of the eradication and management of plagues, communicable diseases and extraordinary phenomena (art 2(3)10j). Regulation could be interpreted as including a governance function; however, the word pengaturan does not distinguish between regulation and management. In any event, this authority would seem to be limited to plagues, communicable diseases and extraordinary phenomena. Management The level of central government involvement in the management of health services before regional autonomy varied according to the type of health service being provided. The range of institutions includes the following:
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43 Community health service (Pusat Kesehatan Masyarat) District General Hospital (Rumah Sakit Umum Daerah Kabupaten/Kota) Provincial General Hospital (Ruman Sakit Umum Daerah Propinsi) Specialist Hospitals (Rumah Sakit Khusus) Some government institutions had a degree of managerial independence before regional autonomy. In addition, programs set up to deal with particular problems, such as vector control, also had managerial independence within national guidelines on their operation. In relation to community health services, the de-concentrated offices of the national ministry were responsible for management. Under PP25/2000 there does not appear to be a role for central government in the management of health services. Provincial government is given authority for managing (penanggulangan) communicable diseases and extraordinary phenomenon (art 3(5)9d). This authority overlaps with similar authority granted to central government and there is no indication how this is to be resolved. It also has authority for management of special medical facilities and infrastructure such as mental hospitals, leprosy hospitals and cancer clinics (art 3(5)9b). The balance of management functions in the provision of health services can be considered as falling within the obligatory functions of district government. Since regional autonomy, a ministerial decree has been passed on Community Health Centers (Pusat Kesehatan Masyarakat) (Puskesmas): (Keputusan Menteri Kesehatan No. 951/MENKES/SK/VI/2000 tentang Upaya Kesehatan Dasar di Puskesmas). The decree sets out their services as consisting of: Health care for mothers and children Family planning Nutrition Environmental Health Prevention and overcoming communicable diseases Medicinal treatment including emergency services because of accidents Community health School health Sports medicine Community health nursing Occupational health Dental care Mental health Eye health Simple laboratory services Health information Elderly care Traditional medicine. However, as the ministerial decree is only a guideline, there is no obligation on district government to adhere to its terms. Since regional autonomy, Presidential Decree No. 40 of 2001 regarding Guidelines for Institutions and Management of Regional Hospitals (Keputusan Presiden No. 40 Tahun 2001 tentang Pedoman Kelembagaan Pengelolaan Rumah Sakit Daerah) has stated that in relation to government hospitals they are able take the form of technical offices (Kembaga Teknis Daerah) or Regionally Owned Enterprises (Badan Usaha Milik Daerah (BUMD)). This is to be regulated by regional regulations (art 2(3)) as is the management and responsibility of regional hospitals (art 5). Wide scope is given to regional government
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44 in deciding the services provided by regional hospitals. Notably, no distinction is made between provincial and district government. In relation to mental health, central government has issued a ministerial decree: Keputusan Menteri Kesehatan No. 220/MENKES/SK/III/2002 tentang Pedoman Umum Tim Pembina, Tim Pengarah, Tim Pelaksana Kesehatan Jiwa Masyarakat. This instrument serves as a guideline for regional government in providing services in mental health through the establishment of various teams to address aspects of mental health at each level of government, a general strategy to address mental health and an outline of principles. Again, no distinction is made between provincial and district government. The only instrument that makes a clear distinction between provincial and district government is the Circular of the Minister for Health No. 1107 of 2000. It states that the province is responsible for the services: Running certain provincial level health facilities that are not able to be run by the districts Running the provincial food and nutrition awareness system Running environmental health including health in domestic harbours The district level is obliged to provide the following services: Implementation of district health effort/facility Implementation of public health effort and promotion Prevention and eradication of diseases in the district Epidemiological surveillance and settlement of epidemic/unusual outbreak in the district Implementation of environmental health effort and monitoring developmental impacts on health in the district As a mere circular, this instrument has minimal legal weight. Drug procurement and supply Governance Before regional autonomy, central government had authority to govern the supply of drugs. This can be seen in relation to contraceptive devices and drugs where central government was to ‘regulate’ the supply and/or distribution of contraceptive devices and drugs (Act No. 10 of 1992 on Population Development and the Development of Happy and Prosperous Families art 22(1)). This included the establishment of the program and implementation of drug procurement and supply. Under PP25/2000, the authority of central government is more limited. In relation to drug procurement and supply, it is stated that central government has authority for the supply of ‘certain essential medicines’ and ‘medicines for essential basic health services’ (art 2(3)10k). This implies governance authority for establishing the system as well as management authority in ensuring supply. It also implies that governance in relation to all other medicines falls to district government, as there is no mention of a role for provincial government. However, as PP25/2000 does not define essential medicine, the breadth of central government authority is unclear. Before regional autonomy, a Ministerial Decree provided a list of essential medicine: Keputusan Menteri Kesehatan No. 122.A/MENKES/SK/II/1999 tentang Daftar Obat Esensial Nasional 1998. After regional autonomy another Ministerial Decree was passed: Keputusan Menteri Kesehatan dan Kesejahteraan Sosial No. 442/MENKES-KESOS/SK/V/2001 tentang Pedoman Umum Pengadaan Obat Pelayanan Kesehatan Dasar Tahun 2001. This Ministerial Decree sets out a conception of medicine as being ‘very,
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45 very essential’, ‘very essential’, or ‘essential’. ‘Very, very essential’ medicine is medicine the supply of which must be guaranteed for health services provided by the districts to minimalise risk in the provision of health care at the district level. ‘Very essential’ medicine is medicine for which supply poses a risk at the regional level. ‘Essential medicine’ is medicine that is needed, and often used, but for which supply does not involve any risk to the regions. As all these definitions involve ‘essential’ medicine, it is arguable that central government still has governance authority. Management Under sectoral law passed before regional autonomy, central government authority includes the management of drug procurement and supply. Under PP25/2000, central government also appears to have authority for actually ensuring the procurement and supply of ‘certain essential drugs’ throughout Indonesia. Depending on how this provision is interpreted, central government authority for the management of the drug procurement is still quite broad. However, this interpretation is contradicted by Circular of the Minister for Health No. 1107 of 2000, which states that the province is responsible for the planning and supply of drugs that are ‘very essential’ and the district is responsible for planning and procurement of medicines for ‘essential’ basic health services. Notably, the Circular does not give clear guidance as to who has what function to ensure the availability of drugs on a national basis. Provision of a health insurance scheme Governance To date, the conception of health insurance has been developed nationally through the passing of a number of government regulations and ministerial decrees. It is likely that under PP 25/2000, central government authority for policy extends to the making of policy on the provision of a system of health insurance. However, the formulation of policy is only the first stage in determining the arrangements to provide a health insurance scheme. Central government also has authority for fostering the legal system more generally and this would include the establishment of a health insurance system to cover both government and non-government employees as well as people who are self-employed or unemployed. A draft statute on health insurance is in the process of being prepared. It is envisaged that the management of health insurance will be carried out by a health insurance board (Badan Penyelenggaraan), which operates under legislative authority. Central government will play a governance role in the arrangements for licensing and assessment. Management Given the limited role for central government under PP25/2000, it would seem that under regional autonomy, apart from health insurance provided to public servants, district government or private organsiations have responsibility for managing health insurance. Comment on law-making Provision of health services 2. PP25/2000 is unclear regarding the extent of central government’s involvement in governance over the provision of health services and needs further elaboration 3. Sectoral law needs to be amended to conform to the reduced role of central government in the governance of the provision of public health services under regional autonomy law. The exception may be governance regarding the control of plagues and communicable diseases.
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46 3. PP25/2000 will conflict with sectoral law that assigns a function to central government for the management of the provision of health services (with the exception of central government’s role in the management of plagues and communicable diseases and extraordinary events). Sectoral law should be amended to remove such conflicts. 4. There is a need for that details the respective roles of each level of government in the management of the provision of the different kinds health services provided as part of public health. Drug procurement and supply 1. The authority of central government over drug procurement and supply as set out in PP25/2000 needs to be clarified: is it only for those essential medicines that are classified as ‘very very essential’ or does it involve essential medicines more generally. 2. The governance aspects of this role need clarification. It is not clear whether central government is authorized to establish a binding regime for the supply of all drugs or only for the ‘certain’ essential drugs, that is, ‘very, very essential drugs’. 3. If central government has both governance and management functions regarding ‘very very essential’ drugs, this needs to be elaborated in sectoral law. 4. The new roles of provincial and district government for the supply of ‘very essential’ and ‘essential’ medicine, which is likely to conflict with existing sectoral law, also need to be clarified. Health insurance The limited management role provided to central government under regional autonomy will require an assignment of management functions to district level government in the new arrangements for health insurance. This assignment will need to be clearly set out in the new statute.
5. PROVIDER OF INFRASTRUCTURE AND FACILITIES Governance Sectoral law which pre-dates regional autonomy assumes that central government is responsible for providing health infrastructure and facilities and, by implication, central government has had governance authority for the criteria to be applied in decision-making concerning infrastructure and facilities. Examples can be seen in family planning where it is stated that the government carries out activities to improve the provision of facilities and infrastructure for birth control services (Act No. 10 of 1992 on Population Development and the Development of Happy and Prosperous Families (art 23(1) b)). Another example is the ministerial decree that establishes warehouses for pharmaceutical products (Keputusan Menteri No. 633/MENKES/SK/IV/2000 tentang Pembentukan Gudang Perbekalan Kesehatan di Bidang Farmasi di Kabupaten Kota Tertentu) and the ministerial decree that establishes community eye health centers (Keputusan Menteri No. 823/MENKES/SK/V/2000 tentang Pembentukan Balai Kesehatan Mata Masyarakat Di Provinsi Nusa Tenggara Barat). PP 25/2000 does not mention the provision of infrastructure and facilities for health services. By implication, governance over the provision of facilities and infrastructure is a responsibility of district government with the exception of special medical facilities, which are under the authority of provincial
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47 government. However, sectoral law issued since regional autonomy does not distinguish between the functions of provincial and district government in relation to each type of medical service to be provided. Management PP 25/2000 states that the province has authority for managing special medical facilities and infrastructure such as mental hospitals, leprosy hospitals and cancer clinics (art 3(5)9b). As there is no mention of central government authority, it leads to the implication that the management of all other aspects of the provision of infrastructure and facilities fall within the authority of district government. This means that all sectoral law that grants a management function to central government conflicts with regional autonomy. Notably, sectoral law still provides for hospitals known as ‘vertical’ hospitals, which are still managed by central government. Comment for law-making There is a need for more law to cover both the governance and management of the provision of facilities and infrastructure. The respective roles of the province, district and institution need to be clarified. STANDARD SETTER Standard setting in general In pre-regional autonomy health law, central government has overall authority for the health system including standard setting as indicated in the use of the word mengatur, which means both to regulate and to arrange. However, standards for public health are not easily accessible and in conducting the research it was not possible to discern what kind of standards actually exist. In contrast to past practices, PP25/2000 sets out certain aspects of health care that can be the subject of standard setting by central government and provincial government. Whether or not this limits the extent of central government authority in standard setting is a matter for interpretation. It needs to be balanced against the general law-making authority of central government referred to in article 2(3)24 of PP25/2000. Since the introduction of regional autonomy, Circular of the Minister for Health No. 1107 of 2000, states that the province is responsible for the ‘fostering and oversight’ of the stipulation of standards. A question arises as to whether this means that the provincial government actually sets standards and, if so, which ones? What role does this leave central government in the stipulation of standards? Population-based standards In pre-regional autonomy health law, central government’s general responsibility for the health system could be interpreted as including authority for setting population-based standards. To the extent that central government’s authority for surveillance requires standard setting, it could be argued that central government has authority for setting population-based standards. However, this authority overlaps with similar authority granted to the provinces under PP25/2000. Quality standards Before regional autonomy, some quality standards were set nationally, for example, standards for medical practices (Keputusan Menteri No. 08/MENKES/SK/1/2000 tentang Pelayanan Medis Kontrasepsi Metode Operatif), medicine (Peraturan Menteri Kesehatan No. 949/MENKES/PER/VI/2000 tentang Registrasi Obat Jadi) and medical staff (Keputusan Menteri No. 647/MENKES/SK/IV/2000 tentang Registrasi dan Praktik Perawat). PP 25/2000 allocates central government authority for setting standards on certain aspects of health care. The list set out in PP25/2000 does not conform to the kind of standards that arise in health quality and
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48 require some interpretation. Central government has authority for standards on nutrition (art 2(3)10a) and authority to issue a guideline for the certification of ‘health technology’ (art 2(3)10a) and on the standard of education of health personnel (art 2(3)10d). Central government also has authority to issue a guideline on the use of traditional medicine (art 2(3)10e) and the development and application of health technology and ethical standards for health researchers (art 2(3)10f). In relation to food additives, it is stated that central government has authority to stipulate the requirements for the use of certain food additives (art 2(3)10h). The provinces have authority for the certification of medical and nutritional technology (art 3(5)9c). Management standards Under PP25/2000, central government’s authority for the accreditation of health facilities and infrastructure (2(3)10c) may include the setting of a range of management standards but this is not expressly stated. Since PP25/2000, central government has issued a ministerial decree covering the registration of health personnel such as dentists, nurses and physiotherapists (for example Keputusan Menteri Kesehatan No. 1239/MENKES/SK/XI/2001 tentang Registrasi dan Praktik Perawat). Management standards could also arguably be included in service standards as envisaged in article 2(4) b of PP25/2000. The process of formulating service standards has been set out in a ministerial decree containing minimum service standards: ministerial decree No. 1747 of 2000 has set out a Guideline for Minimal Service Standards for Health (Keputusan Menteri Kesehatan dan Kesejahteraan Sosial RI No. 1747/MENKES-KESOS/SK/XII/2000 tentang Pedoman Penetapan Standar Pelayanan Minimal Dalam Bidang Kesehatan di Kabupaten/Kota). A minimal service standard (Standar Pelayanan Minimal)(SPM)) is a measurement that shows whether goals are being achieved: it is an indicator of success that is given a numerical dimension so as to become a standard. Comment on law-making Standard-setting in general 1. The role of central government in setting standards as envisaged in PP25/2000 needs clarificiation in relation to the wider law-making authority of central government. Population-based standards 2. In relation to population-based standards, the assignment of functions in PP25/2000 to central and provincial government needs clarification. Quality standards 3. Central government authority under regional autonomy law for passing national standards that affect health quality needs to be confirmed. Management standards 4. District government authority for management standards, which appears to fall within the responsibility of district government, needs to be clarified. 8. MONITOR The assignment of the oversight (pengawas) function to central government before regional autonomy indicates that in sectoral law, central government has authority for monitoring the provision of health services and outcomes. PP 25/2000 does not mention monitoring. It refers to policy on information systems, which conceivably could include systems to monitor health status. However, it is less clear that this could involve central
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49 government authority to monitor health status at the regional level. PP25/2000 allocates authority to both central and provincial government for surveillance of epidemiology. However, it is not clear whether this assignment refers to monitoring health status or to disease control. Furthermore, is surveillance the same as monitoring population-based standards? In any event, it does not cover the monitoring of quality standards or management standards, which by implication falls within the responsibility of district government. However, such a conclusion is contradicted by Circular No. 1107 of 2000, which states that the province is responsible for oversight of standards and the health information system. Comment for law-making 1. Regional autonomy law needs clarification regarding the respective roles of central and provincial government in epidemiological surveillance. 2. Regional autonomy law also needs to be elaborated regarding monitoring obligations at each level of government. 3. Sectoral law needs to be amended to reflect these changes and clarify the roles of district government and provincial government. 9. REGULATOR - GOVERNANCE Establishment of basic rights, obligations and prohibitions Rights, obligations and prohibitions are usually contained in statutes and government regulations. This indicates that central government has authority for the establishment of basic rights, prohibitions and obligations. The authority of central government arises from its authority to enact laws (art 2(3)24a). As the provinces also have authority to pass laws through regional regulations (art 3(5)20), under PP 25/2000 this authority is shared between at least two levels of government. How this authority is to be exercised under regional autonomy is not yet clear. In Government Regulation No. 19 of 2003 regarding Smoking (PP No. 13 Tahun 2003 tentang Pengamanan Rokok Bagi Kesehatan), basic prohibitions and obligations are established nationally. However, it allocates law-making functions on more detailed aspects to regional government without differentiating between provincial and district level government (arts 15 & 25). Furthermore, it seems that since regional autonomy, certain basic rights and obligations are not being passed in laws but in guidelines. An example is Keputusan Menteri Kesehatan No. 1333/MENKES/SK/X/2002 tentang Persetujuan Penelitian Kesehatan Terhadap Manusia, which sets out obligations to obtain consent where people are used as objects for research (art 2). Another example is the circular on rights and obligations of patients, doctors and hospitals (Surat Edaran Direktur Jenderal Pelayanan Medik No. YM. 02.04.3.5.2504 tentang Pedoman Hak dan Kewajiban Pasien, Dokter dan Rumah Sakit). Licensor Before regional autonomy, licensing provisions were found in government regulations and ministerial regulations. Examples are Government Regulation No. 72 of 1998 regarding Pharamaceutical and Medical Technology Security (PP No. 72 tahun 1998 tentang Pengamanan Sediaan Farmasi dan Alat Kesehatan), Ministerial Regulation No. 73/MENKES/PER/II/1999 on Reproductive Technology (Peraturan Menteri Kesehatan No. 73/MENKES/PER/II/1999 tentang Penyelenggaraan Pelayanan Teknologi Reproduksi Buatan) and Ministerial Regulation No. 922/MENKES/PER/X/1993 regarding the Licensing of Pharmacies (Peraturan Menteri Kesehatan No. 922/MENKES/PER/X/1993 tentang Ketentuan dan Tata Cara Pemberian Izin Apotik). Under such regulations, which set out licensing procedure, the Minister or Director General of the Ministry for Health was the licensor.
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50 Under PP25/2000, it is not clear whether central or provincial government have authority for licence obligations and procedure. In relation to licence approval, renewal and revocation, it seems that under PP25/2000, this function falls to district government. The only reference to ‘regulation’ in health allocates an unclear regulatory function to central government for the eradication and management of plagues, communicable diseases and extraordinary phenomenon (art 2(3)10j). In addition, there is a reference to the granting of licenses for the distribution of medicines and control over the pharmaceutical industry but without any further elaboration (art 2(3)10g). As a result, it would seem that central government’s authority in licensing has been reduced. Provincial government has authority to grant licences for special medical facilities (art 3(5)9b). It would seem that all other licensing functions fall to the responsibility of district government. In relation to licensing chemists, the Minister still holds licensing authority: Keputusan Menteri Kesehatan No.1332/MENKES/SK/X/2002 tentang Perubahan Atas Peraturan Menteri Kesehatan No. 922/MENKES/PER/X/1993 tentang Ketentuan dan Tata Cara Pemberian Izin Apotik. A pharmacy licence is given by the Minister and the Minister delegates authority to the head of the district Dinas Kesehatan (art 4). This arrangement conforms with the authority provided to central government under PP25/2000. Circular No. 1107 of 2000 seems to contradict PP25/2000 some respects and, furthermore, it creates overlapping authority. Pursuant to the Circular, the province is responsible for regulatory activities in the delivery of health services, namely: Licensing and accreditation health facilities Registration and examinations in certification of health professionals District government is stated to be obliged to carry out the following regulatory activities: Licensing health facilities Licensing the distribution of medicine delivery in the district (pharmacies and dispensaries) Control of traditional medicine The implementation of district government responsibility can be seen in Ministerial Decree No. 1076/MENKES/SK/VII/2003 regarding the Control of Traditional Medicine (Keputusan Menteri No. 1076/MENKES/SK/VII/2003 regarding Penyelenggaraan Pengobatan Traditional) where the licensing function has been assigned to the District government but the procedure for licensing is set out in the Ministerial Decree. Law enforcement Before regional autonomy, central government was responsible for law enforcement. There is no mention of law enforcement in PP25/2000, which leads to the implication that it is a district government responsibility. However, it seems that the new arrangements have not been adopted in post-regional autonomy sectoral law, at least in relation to smoking. In the national regulations on smoking, it is stated that the Minister together with regional government fosters and implements safety in smoking (art 32 (a)) without specifying how this is to be achieved. Oversight is to be carried out by the Minister (art 35(1)). Oversight would appear to be limited to administrative enforcement (art 35(2)&(3)). The sanctions provisions do not mention which level of government is responsible for criminal enforcement and neither is there any mention of civil enforcement.
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Sarah Waddell, 2003
51 Comment for law-making Establishment of basic rights, obligations and prohibitions 1. The law-making role of central government in setting out basic rights, obligations and prohibitions needs to be clarified so that provisions on such matters are not relegated to nonbinding national instruments. Licensing 2. The level of government responsible for setting out the activities that require a licence and licensing procedure needs to be clarified in regional autonomy law. 3. Sectoral law needs to clarify the role of district and provincial government in licensing related to public health. Law enforcement 4. The law enforcement authority of central, provincial and district government needs to be clarified in regional autonomy law. 5. The role of each level of government in the enforcement of obligations and prohibitions in public health needs to be clarified in sectoral law. 10. RESEARCH AND DEVELOPMENT Governance Under sectoral law passed before regional autonomy, the Minister has authority for governance and management in relation to research and development. For example, research and development in family planning in relation to contraceptive devices, drugs and methods, is stated to be carried out by the government and or society based on prevailing legislation (Act No. 10 of 1992 on Population Development and the Development of Happy and Prosperous Families - art 22(2)). Thus, it would appear that central government establishes the criteria for research and development and carries it out together with non-government or private organizations. The same arrangements apply to research and development in population control. PP 25/2000 grants authority to central government to stipulate directives and priorities for research activities (art 2(4) m). There is also a reference to central government having authority for ethical standards for researchers (art 2(3)10f). Since regional autonomy, a Ministerial Decree has established a National Commission for Ethics in Health Research (Keputusan Menteri Kesehatan No. 1334/MENKES/SK/2002 tentang Komisi Nasional Etik Penelitian Kesehatan). Management In PP25/2000, it is stated that provincial government has authority to carry out research in areas that span districts (art 3(1) & (2)). This expression is vague in relation to health issues, which are rarely confined within district boundaries. In post-regional autonomy sectoral law contained in Presidential Decree No. 40 of 2001 regarding Guidelines for Institutions and Management of Regional Hospitals (Keputusan Presiden No. 40 Tahun 2001 tentang Pedoman Kelembagaan Pengelolaan Rumah Sakit Daerah), it is stated that regional hospitals have a research and development function (art 4). However, in circular No. 1107 of 2000 (Surat Edaran No. 1107/MENKES/E/VII/2000), the only reference to research and development allocates this function to district government.
[Type here] [Type here]
Sarah Waddell, 2003
52 Comment for law-making 1.
2.
A clearer assignment of governance functions in research and development is required in regional autonomy law. Whilst central government still has authority to set national priorities, the role of provincial government in setting regional priorities needs to be clarified. The conflict between sectoral law and regional autonomy law concerning the role of the province needs to be resolved.
11. FUNDER Governance Before regional autonomy, central government was responsible for financing all aspects of government health care services. By implication, this included a governance function in determining criteria for the provision of capital and recurrent funds and in setting the level of fees able to be charged for health services. For example, in family planning it is stated that the government carries out activities to improve the provision of facilities and infrastructure for birth control services. This would appear to include setting funding priorities and actually providing the funds for birth control services. Under PP 25/2000, the governance function of central government has been reduced; it only has authority for determining a guideline for financing health services (art 2(3)10b). The exception to this arrangement is where central government still exercises deconcentrated authority at the regional level: Peraturan Pemerintah No. 106 tahun 2000 tentang Pengelolaan dan Pertanggunjawaban Keunangan Dalam Pelaksanaan Dekonsentrasi dan Tugas Pembantuan (art 2(3)). This government regulation applies to ‘vertical hospitals’ that are set up by regional government. In sectoral law passed since regional autonomy, a level of financial independence has been given to regional hospitals. Keputusan Presiden No. 40 Tahun 2001 tentang Pedoman Kelembagaan Pengelolaan Rumah Sakit Daerah states that ‘regional hospitals have authority to exploit market opportunities in accordance with their capacity whilst implementing their social function’ (art 5(2)). It is necessary that regulations be passed to control the level of fees being charged and the use of income by the institution. It is not stated whether these regulations are to be issued by provincial or district government and for this reason the governance function is not clear. The Presidential Decree does not mention anything further on funding of capital or recurrent expenses by regional hospitals. It states that regional government allocates funds for hospital management through the APBD without a distinction between capital expenditure or recurrent expenses or any mention as to the criteria to be applied in decision-making (art 7). Management PP25/2000 does not mention who has responsibility for managing health finances. With the exception of vertical hospitals, it can be assumed that this responsibility falls to district government for services under district responsibility and to provincial government for services under provincial responsibility. Regional autonomy finance laws indicate that the regions are primarily responsible for financing the system of public health. Public servant salaries are to be paid from regional income and expenditure (APBD): Peraturan Pemerintah No. 105 tahun 2000 tentang Pengelolaan dan Pertanggungjawaban Keuangan Daerah (art 29(1)). Regional government is responsible for the management of regional property (art 31-32). This indicates that regional government is to meet the costs of recurrent expenditure involved in the maintenance of existing facilities. This government regulation does not cover responsibility for building new facilities and so creates doubt over responsibility for new capital expenditure.
[Type here] [Type here]
Sarah Waddell, 2003
53 Comment for law-making 1. In order to clarify the roles of central, provincial and district government, further detail is needed in regional autonomy law on the assignment of governance functions in funding public health. 2. There are conflicts between sectoral law and regional autonomy law in the assignment of governance functions in health finance, which need to be resolved. 3. The assignment of the financial management functions to ‘regional’ government needs to be clarified in sectoral law. This clarification should cover all types of expenditure, namely, capital expenditure for new developments, maintenance expenditure and other forms of recurrent expenditure for public health services.
[Type here] [Type here]
Sarah Waddell, 2003
