The Jakarta Post
Jakarta’s water privatization should remain unlawful despite a case review ruling approved by the Supreme Court in 2018 that canceled the previous citizen lawsuit against the Jakarta Administration and private water operators amid sluggish progress by the administration in its remunicipalization plan, experts have said.
On Nov. 20, 2018, the Supreme Court accepted the case review filed by the Finance Ministry that challenged the 2017 court ruling that ordered the Jakarta administration to terminate its partnership with private water companies PT PAM Lyonnaise Jaya (Palyja) and PT Aetra Air Jakarta (Aetra).
In the ruling, the judges argued that the lawsuit did not fulfill the formal requirements of a citizen lawsuit as it included both the private firms as defendants.
However, a legal expert from Atma Jaya Yogyakarta University, Elisabeth Sundari, said this should not be the case as the court failed to clearly explain why the two private companies should not have been defendants in the lawsuit.
Theoretically, a citizen lawsuit could be filed against any alleged violator, not just the government, she added.
Supreme Court Chief Justice Decree (KMA) No. 36/2013 allowed for private companies that provided public utilities, such as tap water, to be included in a citizen law suit.
“The Examination Board viewed that the involvement of a private party does not erode the characteristic of a citizen law suit and hence private companies can be defendants,” Elisabeth said in an online discussion on Friday.
The discussion was held as a public examination of Jakarta water privatization and carried out by law scholars including Elisabeth, National University (UNAS) law expert Basuki Rekso Wibowo, former constitutional court judge I Dewa Gede Palguna, Indonesian Law and Policy Studies Center researcher Eryanto Nugroho and Jakarta Jentera School of Law expert Bivitri Susanti.
Bivitri said the board also found that the cooperation between Jakarta-owned water company PAM Jaya and private operators Palyja and Aetra for water service was against the law as it was costly and violated the rights of Jakarta residents to access clean water.
Bivitri said a case review at the Supreme Court was indeed the last stage of a legal challenge, although the court still failed to address the substance of the lawsuit in the first place
“This could be a strong reason not to cancel the contracts [of private water companies] yet,” she said.
Basuki said it was still possible to file another law suit against water privatization as the substance had not been discussed in the case review ruling or strictly annulled by the Supreme Court.
Elisabeth also argued that the Jakarta administration could go beyond the ruling and choose not to extend the contracts of the private water companies.
In February 2019, Jakarta governor Anies Baswedan vowed the city would gradually take over tap water management from private operators Aetra and Palyja.
However, the following October, the remunicipalization process seemed to be facing a stumbling block as Anies said one of the operators had not been able to come to an agreement with the administration regarding the takeover process.
Both Palyja and Aetra came to an agreement with PAM Jaya in 1997, granting the private operators 25-year concessions on managing the city’s tap water.
The contracts, if not extended, will expire at the end of 2023.
Aetra managed the eastern area of the city while Palyja managed the western part of the city.
However, Anies issued Gubernatorial Decree No. 891/2020 on Aug. 31 that extended Aetra's contract with PAM Jaya.
Jakarta acting city secretary Sri Haryati said the exact terms of the contract were still under discussion.
“The matter still has a long way to go. It is still in progress,” she said on Friday, Antara news reported, without commenting further.