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Wed, April 11 2012 23:27
OUR RIGHT TO WATER
AN EXPOSE ON FOREIGN PRESSURE TO DERAIL THE HUMAN RIGHT TO WATER IN INDONESIA

Indonesia voted in favor of the UN resolution for the right to water and sanitation. However policies implemented by the government have been dominated by market mechanisms that violate people’s right to water.

Even though Indonesia is one of the richest countries in the world in terms of water supply, it faces huge problems when it comes to water distribution, which remains inequitable.

Under the pressure of the World Bank, Indonesia has developed a regulatory framework that promotes the commercialization of water services. During conflicts between local communities and corporations around access to water resources or water services, the government of Indonesia often supports the interests of corporations, arguing that it is securing foreign investments.

This report will show how the practices surrounding access and distribution of water services in Indonesia are in conflict with the constitution and the UN resolution on the human right to water and sanitation. Secondly, this report will examine how water policy in Indonesia has been dominated by international financial institutions like the World Bank and Asian Development Bank, and explain how KRuHA has learned from communities’ advocacy for their right to water in various regions in Indonesia.

The struggles against the commodification of water in Banten where the community is fighting to stop a DANONE bottling plant, and Jakarta, where a private water company has cut millions of people from their drinking water services, provides evidence of the contradictions between Indonesia’s Constitution, the UN resolution and Indonesia’s water policy.

This report is organized into five sections: (1) Water in the Constitution of Indonesia (2) the condition of water resources in Indonesia, including the status of community access to the water (3) the dominant policy in compliance with right to water in Indonesia (4) communities’ fights to fulfill the right to water (and advocacy experience in some areas), (5) conclusions and recommendations.



Water in the Constitution of Indonesia
Water is a human right and Constitutional right

The 1945 Constitution of Indonesia departs radically from traditional constitutions by giving explicit recognition to a range of socio-economic rights in addition to civil and political rights. Prior to the 1948 Universal Declaration on Human Rights, Indonesia’s 1945 Constitution introduced the rights of citizens, although it was not the same as the human rights that were recognized later on.

Article 33, paragraph 2 of Indonesia’s 1945 Constitution stated that “all vital sources of production those essential for the lives of the people must be controlled by the state.” Paragraph 3 stated that “the land and the water as well as the natural riches therein are to be controlled by the state to be used to the greatest benefit of the people.”

Right to Water in the Indonesian 1945 Constitution

Article 27, Para (2)

Every citizen has the right to work and to live in human dignity.

Article 28A

Every person shall have the right to live and to defend his/her life and existence.

Article 28C   

(1)Every person shall have the right to develop him/herself through the fulfillment of his/her basic needs (…) for the purpose of improving the quality of his/her life and for the welfare of the human race.

(2) Every person shall have the right to improve him/herself through collective struggle for his/her rights to develop his/her society, nation and state.


Article 28H 

(1) Every person shall have the right to live in physical and spiritual prosperity, to have a home and to enjoy a good and healthy environment, and shall have the right to obtain medical care.

(2) Every person shall have the right to receive facilitation and special treatment to have the same opportunity and benefit in order to achieve equality and fairness.

(3) Every person shall have the right to social security in order to develop oneself fully as a dignified human being.

Article 33

(2) Sectors of production which are important for the country and affect the life of the people shall be under the powers of the State.
(3) The land, the waters and the natural resources within shall be under the powers of the State and shall be used to the greatest benefit of the people.

 
The human rights regime was only recently incorporated into law. In 1999 the Indonesian government issued the Human Rights Law no 39/1999.Most of the rights acknowledged in the 1948 Universal Declaration of Human Rights were also included in Indonesia’s Human Rights Law.

In the fifth chapter of the Human Rights Law, article 71 on government duties and obligations states: “as laid down in this act, other legislation, and international law concerning human rights ratified by the Republic of Indonesia. The duties and responsibilities of the government referred to in Article 71 include measures for effective implementation in law, politics, economics, social and cultural aspects, state security and other areas (article 72).

Thus, the fulfillment of the right to water is the responsibility of the State. The State is obligated to respect, to protect, and to fulfill the rights of its population to meet the needs of present need and future generations. Thus, the State must also be actively involved in the planning of water resources management.

The Human Right Law was followed by the Human Rights Court Law no.26/2000, which granted Indonesians the right to file complaints against the State for human rights abuses or violation of the law that prohibits serious and massive crimes against humanity. The approval of Parliament is needed to determine whether human rights violations fall within the scope of serious and massive crimes against humanity. The basic requirements for this evaluation are (1) it is done purposely; (2) there is a pattern to the method of violation; and (3) there are many victims of the violation.

Not all human rights violations occurring in Indonesia can be put before the Human Rights Court. Consequently, other human rights violations that are not considered as serious and massive crimes against humanity should be examined through other judicial mechanisms such as regular court, or if the violations are related to the enactment of a new Law, they might be submitted to the Constitutional Court. Regardless, this new human rights regime will provide a sphere for civil society to build a path for promoting and pursuing the realization of the rights. (Benny D Setianto, the Right to Water in Indonesia: A Promising Failure).

Some UN Covenant, Conventions ratified by Indonesia

United Nations

Indonesia

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 

1980, signed the convention
1984 ratified by Law no.7
2004, Law no.23


Convention Against Torture (CAT) 

1998, Law no.5
2006, Law no.13

Convention on the Rights of the Child (CROC)

1999, Presidential Decree no 36
1979, Law no.4
2002, Law no.23

Convention on the Elimination of All Forms of Racial Discrimination (CERD)

1999, Law no.29
2008, Law no.40

International Covenant on Civil and Political Rights (ICCPR)

2005, Law no.12

International Covenant on Economic, Social and Cultural Rights (ICESCR)

2005, Law no.11

Other Relevant Law:
Law no.39/1999 on Human Rights
Law no.26/2000 on the Establishment of Human Rights Court
Law no.27/2004 on the Truth and Reconciliation Commissio


Water Resources Law No.7 of 2004 as a landmark of water commodification
In 2004, the Government of Indonesia passed Law No.7 on Water Resources, which was more market friendly than Law No.11 of 1974.The new law was imposed at the request of the World Bank through the Sector Adjustment Loan for Water Resources of 1999, amounting to $300 million USD. One of the requirements of the third loan disbursement was the replacement of water resources law with a water resources policy and implementation plan in accordance with the World Bank, and based on the principle of Dublin (World Bank, 1993), which states that water has an economic value in all its competing uses and should be recognized as an economic good (World Bank, 1999).A more detailed explanation about the World Bank’s policy can be found in the Matrix of Policy Reform Program Implementation Plan for Water Resources and Irrigation (see letter from Boediono as Minister of Development Planning / Chairman of the National Planning Board, dated April, 23, 1999 2565/MK4/1999 to James D.Wolfensohn as President of the World Bank). (Hadipuro, W.2010. Indonesia’s water supply regulatory framework: Between commercialization and public service? Water Alternatives 3(3): 475-491).

 This new World Bank-imposed water law is inconsistent with Indonesia’s historic stand on water. Article 5 of the Indonesia Water Law No.7/2004 stated that: “Every Indonesian has the right to water” and it is protected by the rule of Indonesia, but there is no other article on how the right should be respected, protected and fulfilled. On the contrary, the law regulated many aspects on corporations’ (which, in this case, means water), outlining how these rights can be obtained, or even transferred by corporations.
The launch of the new Law on Water Resources also gave rise to the civil society movement in the water sector, which became possible after the fall of former Indonesian President Suharto. Since 2000, discussions, seminars, demonstrations, and public debate on the law echoed in public spaces. In 2004 and 2005 three NGOs: the Indonesian Forum for the Environment (WALHI), the People’s Coalition for the Right to Water (KRuHA), and the Jakarta Water Consumers Community led the call for a judicial review of the Law No.7 of 2004 in the Constitutional Court of Indonesia.

Civil society organizations and thousands of individuals argued the Water Law contradicted the 1945 Constitution; would turn water into a profit-oriented business, and possibly threaten people’s access to water. On July 19, 2005, the Indonesia Constitutional Court upheld the constitutionality of the new water law, which provides for the decentralization of control over Indonesia’s water resources to regional entities and water-user associations, and contains provisions allowing for private sectors involvement.

Water as “res commune”
The results of the judicial review of Law No.7/2004 were also considered phenomenal because this is the first time the Constitutional Court gave an article-by-article interpretation of the Law. The decisions of the Constitutional Court are conditionally constitutional, meaning that the implementing regulations of the law should be based on the court’s interpretation and if the implementing regulations of the law are against the Constitutional Court interpretation, people can demand another judicial review.

On the conflicting interpretation regarding the status of water as an economic good or a public good, the court affirmed that water is a public good with social and economic functions.

“Considering whereas water is res commune, and therefore that has to be subject to the provision of Article 33 Paragraph 3 of the 1945 Constitution, so that the management of water has to be included in the public legal system which cannot be made as the object of ownership in the concept of civil law.” (The Constitutional Court interpretation on Water Law No.7).

Indonesia’s Water Resources and People’s Access
According to Indonesia’s Millennium Development Goals report issued by , the National Planning Agency (Bappenas) (2010), 47.71 per cent of households had access to adequate water and 51.19 per cent had access to sanitation. The country is looking to a target of 68.87 per cent of the population to have access to clean water and 62.41 per cent of the population to have access to sanitation. The table below shows Indonesia’s achievements with access to water.

MDGs Report 2010 (Bappenas)

   Progress on Drinking Water and Sanitation 2008 (UNICEF, WHO)

Progress on Drinking Water and Sanitation 2010 (UNICEF, WHO)

       Achieving the MDGs in an Era of Global Uncertainty 2010 (UNESCAP, ADB, UNDP)

Urban (%)  

 Rural (%)


   Piped Water (%) 

Protected Water Resources (%)

Piped Water (%) 

Protected Water Resources (%)

Water Total   

Sanitation Total

49.82 

45.72

  20

60

23

57

Slow 

Slo

                                                                                                 Various sources

Mismanaged water
One of the main constraints in managing the water and sanitation sector in Indonesia is the availability of raw water. Generally, Indonesia is one of the few countries in the world to have abundant water resources. Various reports on the condition of Indonesia’s water balance shows that Indonesia is still experiencing a surplus of water. Nevertheless, there are several islands in Indonesia that have experienced water deficit, as seen in table 1 below.

Based on table 1, the islands of Java and Bali have experienced water deficit since 2000.While the islands of Sulawesi and East Nusa Tenggara (NTT) will experience a water deficit in the year 2015.It is necessary also to emphasize that the availability of water on each island has been in decline, with the assumption that the rate of deforestation in Indonesia in 2000-2005 is an average of 1,089,560 ha / year (table 2).This condition is further worsened by the fact there is an increase in the amount of damaged watersheds – from 62 at the end of the 1990s to 64 in 2009.

Today, Indonesia’s population is estimated at 234.2 million, in comparison to 205.1 million in 2000.Indonesia has become the fourth largest population in the world, after China (1.33 billion), India (1.16 billion), and the United States (309.2 million).

In 2010, 60.1 per cent of the population, or about 121 million people, were living in Java. This makes Java the densest island with 103 people per km2.Massive development, extensive land use changes during the era of and the continuous expansion of extractive industries have had put huge pressure on the island’s water balance to the point that Java Island is now experiencing a water deficit.

These facts illustrate that the water crisis in Indonesia is not due to water scarcity, but rather it is due to the inability of countries to manage water resources.

Table 1

Water balance on each Island in Indonesia


Island

Water Availability (million/m3/year) 

Water Demand (million/m3/year)

Water Surplus (million/m3/year)




2000

2015

2000

2015


Sumatra

11.077,7

25.297,5

49.583,2

85.780,2

61.494,5


Java

30.569,2

83.378,2

164.672,0

-52.809,0

-134.102,8


Kalimantan

140.005,6

8.203,6

23.093,3 

131.802,0  

116.912,3


Sulawesi

34.787,6

25.555,5

77.305,3

9.232,1

-42.517,7


Bali

1.067,3 

8.598,5

28.719,0

-7.531,2  

-27.651,7


NTB

3.508,6

1.832,2

  2.519,3

1.676,4

989,3


NTT

4.251,2

 2.908,1

8,797,1

  1.343,1

-4.545,9


Maluku

15.457,7

  305,2

575,4

15.152,5 

14.882,3


Papua

350.569,7

283,4

1.310,6

350.306,3

349.279,1


INDONESIA

691.314,6 

156.362,2

356.575,2

534.952,4

334.739,4


Sources: DR.Sutopo Purwo Nugroho, 2010 (Ministry of Environment, 2005)

In watershed management, there are a variety of challenges ranging from the complexity of governance, weak enforcement of environmental laws, lack of community participation, and so on. All of these problems stem from one issue: that water resource development has not become central to the political agenda.

The Dominant Policy Approach on The Right to Water
Currently, there is a growing tendency toward water commodification through the privatization of water services.

In an attempt to stave off public criticism, corporations like Suez, however attempt to dissociate the privatization of water services from the commodification of water. “Water is a common good, one of the basic public goods. At Suez, we are opposed to the private ownership of water resources precisely because, in our eyes, water is not a commodity. We do not trade in water. We do not sell a product. We provide a service, the service of making clean water continuously available to all, and returning water to the natural habitat once it has been treated. It is the price of that service that is billed, not the price of water as raw material”. In reality, however, people have to pay for obtaining water. They have to pay based on the volume of water they use.

Globally, the prospect of water privatization is increasing. It is predicted that over the next decade, more than 1 billion people will use and consume “private” water. The most important markets for “private” water are in developing countries in Asia, Africa and South America.

Water resource management will always be affected directly or indirectly by governments, business entities, and civil society, and even by international development agencies such as the World Bank, the Asian Development Bank and others. Whether water governance prioritizes common needs, or is an effort to generate profit, will greatly depend on the policies that govern the management of water resources.

In Indonesia, water resource management has been through many changes as a result of macro-economic changes and other interests in the utilization of water resources.

Despite open resistance from many people, since the 1980s the Government of Indonesia has followed World Bank policy. The World Bank can exert its influence on the Indonesian water sector through conditions attached to its loans. The involvement of the private sector in urban water provision and water commoditization are two World Bank principles that have been adopted in the new Indonesian water law, which acted as a starting point for ideological change in managing water supply in the country. What makes Law No.7/2004 on Water Resources different from the superseded Law No.11/1974, is that the new law gives more room to the private sector through Article 9 on commercial water rights and Article 40, clause 3 on participation in water supply delivery. According to the old law, water supply should be in public hands, or at least managed by an institution in a cooperative spirit.

Administration of water rights has the potential to marginalize the traditional users and create administrative problems. Adopting the concept of full cost recovery has made water resource managers prefer to allocate water to the industrial sector and to water companies that cover transaction costs in their operations. The agricultural community and the citizens who utilize the watershed for drinking water will be neglected.

The Fights for the Right to Water
The central claim that KRuHA makes is that water is indispensible for human life and should, therefore, be stewarded by government in the best interests of its citizens. The commercialization of water, according to KRuHA, is morally unjust; it represents the ongoing accumulation of public goods for private (and often foreign) profit, and violates a fundamental human right.

Banten: Local people’s movement versus DANONE’s lobby
“It’s sure that the state takes the side of the industry! In fact, up to this moment, Taufik (the Regent of Serang) is still determined to defend Aqua by refusing to revoke the document that gave permission to build the plant in Padarincang. The government has never bothered to listen to us, despite the fact that we have repeatedly demanded that they close down the Aqua drilling site.” - Azis (a local leader) who spoke during the mobilization, December 5, 2010

Padarincang is a sub-district in Serang District, Banten Province. Villagers are mostly small-scale farmers who work in paddy fields and peasants who work on their neighbors’ land. The beauty of this environment is the blessing of its location, which is above the underground water basin and not far from the swampy lake of Rawadano.

PT Tirta Investama, the largest Indonesian bottled water company has the majority of its shares (99.79 per cent) owned by PT Aqua Golden Mississippi Tbk (AQUA), 74 per cent of which are held by PT.Danone Asia Pte Ltd, which just delisted from the Indonesia Stock Exchange and became a private company (Kontan, 23/12/2010).

Aqua Golden Mississippi was established in 1973 with its first water bottling plant in the Bekasi region of West Java. The company expanded significantly over the next few decades. On September 4, 1998, Aqua Golden Mississippi sold its shares to French company DANONE, a company best known for producing processed dairy foods. With all the confidence that a majority (74 per cent) ownership a stable European company brought to Aqua, it soon released a new product called Aqua DANONE and promptly began surveying for suitable springs to expand its activities. In 2007, Aqua DANONE set its sights on the Ground Water Basin of Rawadano and in 2008, the company began exploration. After getting permission from the Banten provincial government, the company has taken steps to ensure its interests in the area were secured (See also .Eve Warburton).

In Curug-Gong, where the company chose to build the new plant, people use the spring water from the waterfall for their daily needs. The water also supplies hundreds of hectares of paddy fields and other plantations.

Communities living in the villages surrounding the water fought construction plans for years, and the plan was postponed. However, the company continued to approach the local government until the plans were approved, and operations began in 2010.One of the ways the company promoted their plan was by taking the regent of Serang (the capital of Padarincang) and the governor of Banten Province on a tour to Paris, France where DANONE’s central office located.

DANONE also has a very strong lobby within The Investment Coordinating Board (BKPM – Badan Koordinasi Penanaman Modal) and Coordinating Ministry of Economic Affairs. One complaint from DANONE is enough for these two government ministries to act on behalf of the “investors,” even if it goes against Indonesia’s doctrine on water as “res commune.” (See Hatta and Wirawan’s statements in http://bataviase.co.id/node/582493)

Locals’ fears of drought over the exploitation of this water are not without merit. They have seen the experiences of other regions such as Sukabumi and Klaten, where the water wells dried up, and the volume of water in the watershed reduced drastically.

In the village of Kuta, Sukabumi, residents now have to dig wells to a depth of 18 meters, whereas before the existence of bottled water industries, people used to dig only 10 meters deep.

In Klaten, in Central Java, farmers have to pump from deep groundwater in order to have water for agriculture. The water that used to flow naturally from the springs of Kapilaler and Sigedang used to be sufficient for agricultural irrigation. This water no longer flows.

In addition, there is no doubt that the exploitation of ground water in large quantities simultaneously will lead to the deterioration of the land (land subsidence). And a decrease in soil in the underground water basin will have dire consequences since it is where all of the processes of hydro-geological recharge, drainage, and ground water discharge occur naturally.

Simple Calculation; One company’s profit vs people’s lost income

The amount of water to be extracted by Aqua-DANONE would reach 63 liters/second, equivalent to 5.443.200 liters water a day. While Aqua costs 3000 IDR for a 1 liter bottle of water, this means that Aqua will profit more than 16 billion IDR (or $1.8 million USD) each day from their operation in Cirahab, Padarincang–Banten alone.

There are more than 6,000 hectares of paddy field in Padarincang. One hectare can produce about 2.000 kgs of rice every 4 months or 6,000 kgs of rice each year. With the assumption of the cost of rice being 4000 IDR/kg, the total income lost for farmers will be 12 billion IDR/month (approximately $1.3 million USD).

The spirit of local resistance to ground water extraction and commoditization is based on local traditional beliefs that water is not just a source of life, but also a gift from God. It must be protected from any form of destruction, and any attempt to privatize the water must be resisted.
While the people’s movement against the Aqua DANONE in Padarincang began in 2008, effective and well-organized events started in 2010.The communities organized various actions against the plant’s construction, including discussions, actions, movie screenings and more. Three parallel advocacy approaches have been taken: (i) Micro level approaches; the routine training and village discussion on the Right to Water, (ii) Mezzo level: engaging local cultural and religious leaders as cultural mediators, and (iii) Macro level: networking with other national organizations to increase the pressures on the national authorities, including mobilizations in front of France’s Embassy.

One of the most prominent activities against Aqua-DANONE construction plans was the people’s protest rally around the Aqua DANONE plant, which took place on December 5, 2010.This rally, was attended by thousands of residents. The lack of response from government and start of construction on the plant, which was guarded by machete champions (militia), led to a deep sense of injustice amongst citizens. People’s concern and anger led to arson and vandalism at the site.

In February 2011, through various news media, PT.Tirta Investama announced that it had cancelled its plans to exploit water resources in the Cirahab-Padarincang district.

Jakarta’s Hidden Water Privatization
Jakarta’s water privatization was a decision made based on the myth that foreign investment was required. Thus, the country that was built with the spirit of anti-exploitation,  and with the principles of a Just and civilized humanity has violated its own vow by applying the World Bank’s plan. This plan allows powerful multinational corporations to freely exploit powerless people despite the fact the government supported the UN Resolution on the Right to Water and Sanitation.

In 1991, PAM Jaya was in dire need of restructuring, and funding to pay off debts and increase the supply and quality of water. With a $92 million loan, the World Bank started to push Indonesia’s government to apply a privatization scheme to water. The process started with a letter from President Suharto in 1995, followed by two giant water companies being awarded a 25-year privatization contract without public tender, which goes against Indonesian law.

Under (PPP) scheme the city was divided into two “concession areas.” The concession of the west area was granted to PT Garuda Dipta Semesta (GDS), and PT Kekar Thames Airindo (KTA) was granted the east area. At the commencement of the contracts on February 1, 1998, the assets of PAM Jaya (e.g. water treatment plants, water networks, equipment, offices and inventories) were transferred to the custody of the private operators (PALYJA, 2005).

The corruption in this process was visible in the original share allocations. The British firm Thames Water allocated shares to a firm owned by the son of the president. The French company Suez Lyonnaise des Eaux allocated shares to a firm owned by a crony of Suharto, Salim. After the fall of Suharto in 1998, these allocations were rapidly reduced.

Following the 1998 overthrow of President Suharto in the aftermath of the East Asian Crisis, this original contract was renegotiated. The major currency devaluation had hindered the implementation of the agreed investment plans because the companies depended on foreign loans to finance investment.

The renegotiated contract, known as the Restated Cooperation Agreement (RCA) was signed on October 22, 2001 by PAM Jaya and the private consortium, which had changed its name from KTA to PT Thames PAM Jaya (TPJ). Acuatico Pte. Ltd and PT. Alberta Utilities took over the company in 2007, and the name “TPJ” was changed to Aetra Air Jakarta or Aetra. In 2011, Acuatico, a consortium of Indonesia’s ReCapital Advisory and Glendale Partners, resold its shares to a lesser-known Philippines-based company. While, GDS changed to PT PAM Lyonnaise Jaya (PALYJA), a Suez subsidiary company. After July 2006, the ownership belonged to Suez Environment (majority shares) and PT. Astratel Nusantara (Astra International subsidiary).The five service standards and five technical targets that are monitored in the contract were also reset.

Fourteen Years of the Most Expensive Dirty Water
The contracts signed with the companies that provide water on behalf of the city-owned utility PAM Jaya had a number of weaknesses that favored the private companies. The companies are paid according to their costs, protected against inflation, interest rates, foreign exchange rate and even tax changes. These include a “know-how” fee, or management fee, which is typical of water concessions. In addition, the charge is calculated to provide a guaranteed return on capital of 22%.The tariffs paid by customers are effectively determined by these charges, so that if these tariffs are held down to make them affordable, the deficit has to be covered by the public authorities, not by the operators. (Hall)

PAM Jaya’s has a rapidly mounting debt — more than Rp 600 billion ($67 million USD) at last count — that it owes the operators. The debt stems from a discrepancy in the water tariff and the contractual “water charge,” which is what PAM Jaya must pay the operators for their services.

The water charge goes up automatically every six months, but in 2008, after a public outcry over poor service and high prices, the Governor of Jakarta started refusing to allow any more water tariff hikes. A deficit then began to accumulate.

The full cost recovery mechanism in the privatization of PAM Jaya means that 100% of the project’s financing will be borne by customers through increased rates (water tariffs). And the hundreds of billions of IDR lost due to PAM Jaya’s obligation to pay the private operators (water charges), plus the hundreds of millions of dollars in profit pocketed by Palyja and Aetra, MUST be borne PAM Jaya service users through rates.

And the poor have to bear the losses doubly: as customers of PAM Jaya, they were never a priority because they pay low rates and as a result they are forced to buy water from street vendors, while still being forced to pay a bill for water that never flowed.

Table X
The expatriate expenses those are not related to the project but included within the water charge

Expenses 

Total (IDR)

School Fee For Children

1.207.824.829

House Hold

 8.633.000

Expense Claim

 366.220.039

Fiscal & Airport tax Personal Travelling

 79.346.787

Personal Travel/Biaya Perjalanan 

119.754.486

Rent House & flood Insurance

 2.083.706.143

Total (IDR) 

3.865.485.2

Source: investigation report by National Auditor Body on the Income and Charges of PT Palyja 2007 and 2008

Where were the people?
There have been many efforts by various groups to question the scandalous water deal in Jakarta, at least after the fall of President Suharto’s dictatorship in 1998.Those were followed with many policy adjustments in favor of private interests.

After 2000, Indonesia’s civil societies were debating how to find a comprehensive solution for the country following 32 years of repressive which was followed by a shocking transition. This was the time when “free market globalization” emerged in public discourse. A national network of peasant, labor, youth movements, academics and others began to look at the role of the State in the era of liberalization and life marketization.

KRuHA formed as a coalition in 2002 in response to the loan from the World Bank and the decision to adjust Indonesia’s water resources policy (WATSAL) to be in line with its “IWRM” model, which dictates the economic value of water should be maximized in order to address the water crisis. The coalition decided to take the case of illegitimate debt to the newly established Constitutional Court, arguing that the loan violated the national constitution. This was also the first time Jakarta’s case was brought to the court as evidence of how water is being treated as a commodity (not the full subject of the case).

However, since the mandate of the Constitutional Court was to guard the 1945 Indonesia constitution, the laws outside of the constitution are not under its jurisdiction. But the court’s interpretation about how the economic functions of water should be regulated, and what principles should be applied in public water companies, has provided the guidelines for civil society to argue that the government’s policies that allowed the privatization of water services in Jakarta are against the law.

The Constitutional Court noted that:
“The principle of ‘water users shall pay the service charges for water resources management’ treats water not as the object attached with prices in economic respect, this is in accordance with the status of water as “res commune.” With this principle, water users should pay less than when water is considered as an economic good; when users have to pay not only the price of water but also the cost of production beside the profit of the water management.

PDAM, the public water company, has to position itself as the State’s operational unit to realize the State’s obligation as stipulated in Article 5 of the Water Resources Law, and not as a company that is economically profit-oriented. Although the existence of Article 80, paragraph 1 of the Water Resources Law states that in order to meet their daily basic needs and for people’s smallholdings, water resource users shall be exempted from the service charge for water resources management, this provision is applicable insofar as to fulfill the daily basic needs and the people’s smallholdings are obtained directly from water resources. It means that if the water for daily basic needs and the people’s smallholdings is obtained from distribution channels, the aforementioned principle of ‘water users shall pay the service charges for water resources management’ is applicable. However, this matter cannot be used as the basis to apply expensive costs for citizens whose fulfillment of their daily basic needs depend on PDAM through the distribution channel.

The amount of water resources management service charges has to be transparent and must involve the community in its calculation. Due to the fact that water is vital and directly related to human rights, the implementing regulations of the Water Resources Law must contain the obligation of the Regional Government to allocate the budget for the financing the water resources management in its Regional Revenues and Expenditures Budget (APBD).”


Conclusions and Recommendations
Indonesia has been implementing privatization policies in a number of areas, including basic services such as communication, education, housing, food, and water supply. Access to these services is directly linked to the enjoyment of basic rights including economic, social, and cultural rights, and the human rights to water, health, and housing.

Early indications clearly suggest that privatization has been unsuccessful in securing these basic services for all Indonesians.

In Indonesia, the critical question in analyzing the privatization of essential services is whether the policy is consistent with constitutional imperatives — especially those relating to socio-economic rights. Commodification and water privatization have limited the enjoyment of the right to water.

The Right to Water and Sanitation is guaranteed in the constitution. The State is obligated to take legislative and other measures within available resources to ensure the progressive realization of these rights. The constitutionality of privatization will depend on whether it contributes to the progressive realization of relevant socio-economic rights. Failure to satisfy either of these demands would mean that the policy is unconstitutional, and that the State is in violation of its constitutional obligations.

Privatization has become a dominant economic policy prescribed by financial institutions and other decision makers. It has been incorporated in various multilateral trade agreements with promises of improved efficiency in the delivery of and, ultimately, enhanced access to basic services. Similarly, private actors involved in providing services relating to socio-economic rights are obliged to ensure that they do not interfere arbitrarily with the enjoyment of the relevant rights. The possibility of holding such actors directly responsible by a court of law exists under the constitution.

For a developing country like Indonesia, where policies are dominated by the interests of multinational companies and supported by the international financial institutions, the State has became both a guardian and an enemy of its own people. There is a gap between texts of the constitution and the realization of citizen’s rights as the majority of democratic institutions and procedures continue to be more easily influenced by corporate lobbies.

Indonesia needs an alternative – and not just increased regulation. It is not enough to rearrange the system; transformation of the system is needed. Transformation can begin by adopting the perspective of the victim of the prevailing system, which will enable victims to understand and face reality, expressing confidence, and find an alternative articulation of political citizenship.

It is necessary to transform the current “Water Development” hegemony into water democratization by channeling the “issue” through political processes, and by sensitizing political institutions to the emergency of acknowledging water and sanitation as a human right.

Civil society organizations should work hand in hand to collect evidence that (1) the violation of the rights are done purposefully by showing that alternatives to avoiding the violation are available; (2) that there are patterns to be found in several instances of the violations of the right to water; and (3) many people are victims of these violations.

By doing so, civil society organizations might urge the Parliament to recognize that there have been serious and massive crimes against humanity so that cases can be brought before Human Rights Court.
Without doing so, lack of access to water, or even draught, are seen as natural problems or disasters. The incapability of the State to solve the problem will then be seen as technical problem, or at most as economic problem, which does not have any relation to the political will of the government, let alone the human rights of citizen.



References

Hadipuro, W.2010.Indonesia’s water supply regulatory framework: Between commercialization and public service? Water Alternatives 3(3): 475-491)

http://hrli.alrc.net/mainfile.php/indonleg/133/

http://www.mahkamahkonstitusi.go.id/putusan/putusan_sidang_eng_Putusan%20058-059-063%20PUU-II-2004.%20008-PUU-III-2005%20%28UU%20SDA%29.pdf

Benny D Setianto, the Right to Water in Indonesia: A Promising Failure)

Eve Warburton: http://tinyurl.com/82ny6cw

Preliminary Study: Water Exploitation by Bottled Water Companies in Sukabumi/Studi Awal Eksploitasi Air Oleh Perusahaan AMDK di Sukabumi: http://www.kruha.org/page/id/document_list/2/paper.html)

(1) Every person shall have the right to live in physical and spiritual prosperity, to have a home and to enjoy a good and healthy environment, and shall have the right to obtain medical care.

(2) Every person shall have the right to receive facilitation and special treatment to have the same opportunity and benefit in order to achieve equality and fairness.

(3) Every person shall have the right to social security in order to develop oneself fully as a dignified human being.


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