Indonesia

An exposé on foreign pressure to derail the human right to water in Indonesia
KRuHA, Indonesia
Published: 4 years, 2 months ago (10/15/2013)
Updated: 3 years, 3 months ago (09/08/2014)

KRuHA, the People's coalition for the right to water, is a coalition of more than 30 Indonesiation organizations, each working to ensure water access for all indonesians, especially the marginalized.

Introduction


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 helped communities advocate for their right to water in various regions in Indonesia.

This report is organized into four 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) 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, § 2Every citizen has the right to work and to live in human dignity.
Article 28AEvery 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, the protect, and the 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 NationsIndonesia
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 Commission

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.,Indonesia’s water supply regulatory framework: Between commercialization and public service?, Water Alternatives 3(3), 2010, pp. 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.”
(from the Constitutional Court interpretation on Water Law No. 7).

Indonesia’s water resources and people’s access

According to Indonesia’s Millenium 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 tables below show Indonesia’s achievements with access to water.

MDGs Report 2010 (Bappenas)
Urban (%)Rural (%)
49.8245.72

Progress on Drinking Water and Sanitation 2008 (UNICEF, WHO)
Piped Water (%)Protected Water Resources (%)
2060

Progress on Drinking Water and Sanitation 2010 (UNICEF, WHO)
Piped Water (%)Protected Water Resources (%)
2357

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

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 populationIndonesia Central Bureau of Statistic, June 2010. 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.

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 superceded 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.

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

  • W. HADIPURO, Indonesia’s water supply regulatory framework: Between commercialization and public service?, Water Alternatives 3(3), 2010, pp. 475-491.
  • Benny D. SETIANTO, The Right to Water in Indonesia: A Promising Failure.