The State Retreats and Never Returns: Consequences of Neoliberal Reforms on Administrative Law Protection in Indonesia

Abstract

In the northern hemisphere, the state is not in retreat, it merely reconfigured itself. The advent of new public management is accompanied by a rise of the regulatory state, whose function is not in delivering goods and services, but acts, among other, as a referee, standard-setter, rule-maker and enforcer to those who does. Oftentimes, some of the functions are done through “independent” commission or regulatory bodies with parliamentary oversight. In this regard, the regulatory state are supposed to be as transparent, as inclusive and as accountable – and even more so, than the positive state.

This paper argues by way of legal analysis that such reconfiguration does not occur in Indonesia. The state thus retreats and does not redefine its role. When services are privatised, corporatised or contracted out, regulation has either been extremely minimal or even absent. I am not suggesting that the state is attempting to reconfigure itself but is lacking in regulatory capacity, rather, I am suggesting that the state avoids in reconfiguring itself as a regulatory state.

Administrative protections granted to citizen which were available under status quo are no longer available after neoliberal reforms take place. As a consequence, citizen are left without avenues to obtain redress and are left-out from the decision making processes in public service functions which are transferred to non-state actors.

I offer two explanation for this phenomenon. First, there are political contestation taking place between the judiciary and the government, in which, at the constitutional level, the transformation of state functions from provider to regulator is rejected while at the same time, privatization, outsourcing, contracting out and other forms of neoliberal reforms are occurring “in disguise” through government policy and actions. Secondly, governance reforms – supported by various civil society actors -- which demands more accountability from the government, occurs in conjuction with such neoliberal reforms. But since the emphasis of such governance reform is on the state instead of non-state actors delivering public service functions, less efforts are taken in holding non state actors accountable and in affording citizen with same level of protection granted under the status quo.