The "right to water" in Indonesia

Tuesday, June 5, 2007

The right to water is guaranteed under Article 5 of the Water Resources Law. It is stated there that the state must guarantee the citizen's access to water. The implementation of such right is not yet clear. The elucidation of Article 5 only said:
This provision shall mean that the state holds the obligation to organize various efforts to guarantee the availability of water for everyone residing within the territory of the Republic of Indonesia. The said guarantee shall become the joint responsibility of the Government and regional government, including guaranteeing access for everyone to the water source to obtain water. The extent of daily minimum basic need for water shall be determined based on the guidance to be stipulated by the Government.

The Constitutional Court in its interpretation of the water law stated that Article 5, jointly with Article 16 (which stipulates that the duties and authorities of every municipalities are to to fulfill the minimum daily basic need for water of the community in its area) and Article 29(3) (which stipulates that The provision of water to fulfill the daily basic needs and irrigation for the smallholder estate crops in the existing irrigation system that became places the provision of water resources as the main priority over all other needs) have "sufficiently reflected the fulfillment of the right to water" under the law.

However, Article 80 of the Law stated:

(1) The use of water resources to fulfill the daily basic needs and for smallholder estate crops shall not be charged with water resources management service fee.

(2) The users of water resources other than those referred to in paragraph (1) shall bear the water resources management service fee.

And its elucidation:

Paragraph (1)

The parties who utilized the water resources to fulfill their daily basic needs and who are not subjected to any water resources management service fee shall mean the user of water resources who utilized water at or who procured water for their personal purpose from the water source that is not used as a distribution channel.

The water resources management service fee shall mean the cost required to manage the water resources so as the water resources may be utilized in a sustainable manner.

On this Article the Court says that water is free so long as people are taking it directly from its water source, but if it is taken from the water network, then the "full cost recovery" applies. The Court noted however that this does not mean that regional waterwork can charge high rates. The Court says that regional waterwork "shall not be established with a view of only seeking for profit, but as an enterprise who performs state functions in materializing Article 5"

The Court holds the law to be "conditionally constitutional" and thus can still be invalidated if its implementation is different from this guideline.

So, I think the right to water in Indonesia does not mean that everyone can get water as a free ticket. If they are taking it from a distribution network, they still have to pay. The minimum quality and quantity of the water per person -- as far as I know -- has not been legislated into a binding regulation.