The Jakarta Post
The Constitutional Court recently annulled Water Resources Law No. 7/2004 and reinstated Water Law No. 11/1974. The court granted arguments of the plaintiffs, who insisted that the 2004 law had encouraged privatization and commercialization of water resources at the expense of people's rights to water.
Through Resolution 64/292 passed in 2010, to which Indonesia is a party, the United Nations General Assembly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realization of all human rights.
The resolution calls upon states and international organizations to provide financial resources, capacity building and technology to help countries ensure safe, clean, accessible and affordable drinking water and sanitation for all.
The court's ruling emphasizes the state's presence in water management. The state should exercise control over water, which can materialize if the government, as mandated by the Constitution, acts as policymaker, supervisor, regulator, manager and controller of water affairs.
Supervisory function is conducted by issuing and revoking permits, licenses and concessions. As regulator the government works with the House of Representatives in creating legislation, while managing jobs requires the government to be directly involved in state-owned companies as a shareholder. Through control mechanisms the government should ensure that water is used for the well-being of the people.
Water use for consumption and irrigation should be freed from paying water management costs, as long as it takes directly from the water sources. However, if the water source is insufficient, the state is responsible for providing clean water through water distribution.
Regarding the right to water, the court justices underlined that the right was a human right, which could not be separated from any individuals. However, the second kind of right, i.e. the right to exploit water resources, should be interpreted as a tool for the government to control water exploitation. The private sector cannot claim ownership of water sources, but use water allocated by the government.
The principle in the Water Resources Law that says 'water users should cover the costs of water management', should instead confirm that water itself cannot be monetized, according to the court justices. Besides, it should be flexible and cannot be applied equally to all kinds of water use. The justices specifically mention that water use for people's farming should be exempted from water management costs.
Water provision for other countries is prohibited unless the domestic basic water needs have already been fulfilled, which cover basic needs, sanitation, farming, energy, industry, mining, transporting, forestry and biodiversity, sport, tourism, ecosystem, aesthetics and other needs.
All of these considerations were used by the justices to review the government regulations derived from Water Resources Law to examine how the law was interpreted. From this examination, the court stated that the Water Resources Law was unconstitutional.
The plaintiffs and their lawyers insisted that so-called commercialization of water should stop, meaning the companies must cease to operate. As home to one of the world's biggest bottled water companies and two of the biggest water concession holders on the planet, a chaotic situation stemming from the Court's verdict is inevitable.
Currently there are 46 firms as a result of clean water privatization (public-private partnership) in many scale models operating in Indonesia. Over 600 bottled water companies with only 94 registered as members of the Association of Indonesian Producers of Packaged Drinking Water (Aspadin) produce and sell bottled water to the local and international markets. For these companies, the reinstatement of Law No. 11/1974 is a total loss as it does not recognize utilization of water and or water resources for commercial purposes.
The only clause related to water utilization for commercial purposes says the 'commercialization' should be aimed at improving the welfare and prosperity of the people and be conducted by the government, both at central and regional levels and be guided by the principles of brotherhood and economic democracy.
After more than 10 years since the controversial law was enacted, the central government has issued many implementing regulations and numerous regional governments have conducted many activities using this law as legal basis. The government must now come up with a legal framework to ensure the water resources in Indonesia are regulated properly under Law No. 11/1974. The reborn law will leave many 'blank spots' in water resources management.
Many parties, including companies that have invested in the water business, are eagerly waiting for what President Joko 'Jokowi' Widodo will do in response to the Court's verdict. If the current government decides to accept the court ruling, all the existing regulations that violate the old law must be revised, but if it rejects the verdict it will have to draft a bill and submit it to the House for deliberation.
Whatever the choice, the government should act fast and properly. Public Works and Public Housing Minister as the leading sector in water related issues should provide the President and Vice President proper information for better decision making.
The writer is the director of Amrta Institute for water literacy.