Showing posts with label governance. Show all posts
Showing posts with label governance. Show all posts
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9 (Nine) Indonesia's Water Governance Articles You Should Read

Sunday, July 2, 2023

The article titled Water Quality Parameters -- Monitoring And Maintaining The Health Of Our Waterways discusses the importance of monitoring water quality parameters to maintain healthy ecosystems and ensure safe drinking water supplies. It covers key parameters such as temperature, dissolved oxygen, pH, nutrients, turbidity, and contaminants. The article provides examples of how changes in these parameters can affect aquatic life and human health. For instance, urban runoff can raise water temperatures, causing thermal pollution, while agricultural runoff can lead to excessive nutrient levels, causing eutrophication and low oxygen levels. The article emphasizes the need for monitoring and regulating these parameters to protect ecosystems and public health. 

The article titled Water Sector Regulation discusses the various aspects of water services regulation. It covers topics such as the structure of the water services industry, the question of ownership and control, the role of licenses and contracts in regulation, and the unique challenges posed by the natural monopoly character of water service. The article also emphasizes the importance of specific legislation to tackle consumer problems in water services, detailing provisions on duties to supply, supply standards, and customer service. It further discusses the role of legislation in economic regulation and the need for independent, capable regulators. Lastly, the article touches on the importance of demand management and water efficiency, and the role of legislation in these areas.

  Court decision brings water governance reforms to a halt (Part 1 of 2) discusses the implications of the Indonesian Constitutional Court's decision to invalidate Law No. 7/2004 on Water Resources. The decision has caused a significant impact on the Indonesian water community, leading to the halt of several planned water projects and threatening ongoing ones. The author argues that the decision has effectively ended water governance in Indonesia, as the framework for conservation and management of water resources no longer exists. The article also highlights the potential negative effects of this decision, such as the lack of regulation for groundwater extractions, which can lead to land subsidence and saltwater intrusions, and the absence of legal basis for flood control. The author expresses concern that the court's decision could impede the fulfillment of the sustainable development goal of universal access to water and sanitation.

The ultimate risks of water privatization. This article discusses the potential risks associated with the privatization of water services, particularly when contracts are concluded with multinational corporations (MNCs). The author outlines three legal arenas that are impacted by such privatization: transnational, national, and contractual. The article argues that privatization can put the government in a legally disadvantageous position, as disputes arising from contracts can be transformed into international investment disputes through bilateral investment treaties, leading to costly international arbitrations. The author also highlights the lack of adequate accountability and responsibility standards for MNCs, which could potentially lead to irrecoverable environmental or labor losses. At the national level, the author criticizes the weak protection of the right to water in Indonesia, noting that the constitution does not explicitly recognize this right and that current regulations do not distinguish water from other infrastructure projects. The article concludes by emphasizing the need for transparency in water governance and public involvement in decision-making processes.

Can the courts concern over water privatization be justified (Part 2 of 2) This article is the second part of a discussion on the implications of the Indonesian Constitutional Court's decision to halt water governance reforms. The author delves into the concept of corporatization, a process by which a public, state-owned company behaves like a private sector entity. The article questions the court's assumption that state control over natural resources is automatically ensured when these resources are managed by state-owned companies. The author argues that this perspective overlooks the capitalist nature of corporations and the potential for state capitalism to emerge. The article also criticizes the court's decision for not addressing the risks of corporatization. The author suggests that the focus should not be on public versus private ownership, but on how the state regulates and ensures reliable and affordable services. The article concludes by proposing several potential actions for the government, such as creating implementing regulations and evaluating which provisions in the water law and its implementing regulations are problematic. 

The article titled The new governor and Jakarta's drinking water problem discusses the challenges faced by Jakarta's newly installed governor, Joko "Jokowi" Widodo, in addressing the city's drinking water issues. The article highlights the complexities of water provision, which is a natural/legal/monopoly, and the trade-off between service levels and network expansion. It also discusses the significant costs associated with expanding the network to low-income citizens. The article points out the structural disincentives in connecting to the poor due to the current governance structure of Jakarta's water services. It suggests that Jokowi should address the lack of incentives from regulatory actors in connecting to the poor, consult the poor on how they want to be connected to the network, and try to reform the existing legislation which penalizes the poor for late payments. The article emphasizes that these challenges should not discourage Jokowi from his initial plan to provide services to the poor.

Indonesia needs a strong water services law This article emphasizes the need for a robust water services law in Indonesia. The author points out that only a small portion of the population has access to piped water and that the lack of sanitation contributes to significant economic losses and health issues. The article criticizes the current water law for its vague and broad regulation of water services, which can lead to legal complications when dealing with large-scale water projects involving multinational corporations and foreign lenders. The author argues that the governance of water resources and water services should be treated differently, as they deal with distinct aspects of water management. The article also highlights the importance of a water services law in protecting consumers from service disconnection, establishing a consultation mechanism for tariff setting, setting quality standards for drinking water, and detailing consumer rights. The author concludes by stating that without a water services law, the rights of consumers and investors are not legally guaranteed and are subject to the mercy of local governments.

RI water services suffering from a lack of governance This article discusses the lack of governance in Indonesia's water services. The author notes that while funds are available for investment by the private sector, most private sector participation in the water sector is failing. The article criticizes the focus on public versus private ownership of water utilities, arguing that the real question should be about what governance mechanisms work for either public or private water utilities. The author also points out that both privatized and non-privatized services are developing without adequate governance. The article highlights the situation in Jakarta, where water services are regulated mainly through concession contracts, which do not reflect the need to incorporate post-privatization reality and do not provide clear rights for water customers. The author concludes by emphasizing the need for local governments to establish a framework for transparency, accountability, and participation through regional bylaws, especially when services are to be privatized. 

The article titled Assimilative Capacity -- Understanding Nature's Ability To Absorb Impacts discusses the concept of assimilative capacity, which refers to the ability of a natural system to absorb, process, or neutralize pollutants, waste, or disturbances without significant adverse effects. The article emphasizes the importance of understanding assimilative capacity for effective environmental policies and strategies that protect natural resources and promote sustainable development. It provides a definition of assimilative capacity and explains its importance in environmental management, including the protection of ecosystems, maintenance of ecosystem services, and promotion of sustainable resource use. The article also provides examples of assimilative capacity in different environmental systems, such as river systems, airsheds, and coastal ecosystems. These examples illustrate how managing pollutant discharges and waste production based on assimilative capacity can help protect water quality, maintain air quality, and preserve the ecological functions of coastal ecosystems.

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(Open Government Partnership IRM) Invitation to comment on Progress Reports on Costa Rica, Finland, Ghana, Indonesia, Liberia and Panama

Sunday, February 1, 2015




The Open Government Partnership (OGP) Blog invite comments on IRM progress reports for several countries, including Indonesia. The post made special reference to Special Accountability Report which is piloted by Indonesia OGP IRM:
About the Indonesia Special Accountability Report
Most of the countries whose reports are being released today began their OGP participation in 2013. Indonesia, a founding country of OGP, is an exception, having participated since 2011. So why is there a report on Indonesia being released for public comment today?
The first Indonesia action plan covered 2011 to the end of 2012. The second action plan covered all of 2013. This is the action plan evaluated in today’s draft “Special Accountability Report.” The government of Indonesia also released a third action plan in 2014 that runs until 2015. That action plan will receive a typical progress report after the one-year mark, similar to other countries in the same calendar as Indonesia. That report is due for public comment in July of this year.
The IRM takes its role as promoting learning and accountability seriously. For that reason, to the greatest extent possible, all OGP commitments will be tracked and accounted for. The Special Accountability report represents an important step in that direction.
Previously, CRPG announced a public comment period for the 2013 OGP IRM Report.

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Mekanisme Pelaporan Independen Open Government Partnership (Renaksi 2013) -- Masa Penjaringan Pendapat Publik

Saturday, January 24, 2015




Indonesia adalah salah satu dari 8 (delapan) negara pendiri Open Government Partnership, sebuah inisiatif multilateral yang bertujuan untuk menciptakan pemerintahan yang terbuka, akuntabel dan responsif. Open Government Partnership (OGP) diluncurkan pada tanggal 20 September 2011 dan saat ini beranggotakan 65 negara. Di Indonesia, inisiatif OGP mengambil nama Open Government Indonesia (OGI) yang -- pada masa pemerintahan Presiden Susilo Bambang Yudhoyono -- dikoordinasikan oleh UKP4. 

Negara anggota OGP diharuskan untuk membuat rencana aksi yang sesuai dengan nilai nilai OGP dan tantangan tantangan OGP.

Nilai nilai OGP adalah sebagai berikut:
  1. Akses terhadap informasi
  2. Partisipasi Warga Negara
  3. Akuntabilitas Publik
  4. Teknologi dan Inovasi untuk Transparansi dan Akuntabilitas
Sementara itu, tantangan tantangan OGP adalah sebagai berikut:
  1. Meningkatkan kualitas layanan publik
  2. Meningkatkan integritas sektor publik
  3. Manajemen sumber daya publik yang lebih efektif
  4. Membuat masyarakat yang lebih aman
  5. Meningkatkan akuntabilitas korporasi
Salah satu mekanisme pengawasan atas pelaksanaan rencana aksi OGP adalah proses pembuatan Mekanisme Pelaporan Independen (Independent Reporting Mechanism atau IRM) di setiap negara. Untuk pelaksanaan rencana aksi OGP 2013 dan 2014-2015, saya ditunjuk untuk menjadi peneliti IRM untuk mengevaluasi pelaksanaan Rencana Aksi Indonesia. Penulisan laporan independen pelaksanaan OGP Renaksi 2013 didasarkan pada prosedur dan manual yang dibuat oleh IRM OGP.

Secara umum, tahapan Mekanisme Pelaporan Independen adalah sebagai berikut:
  1. Desk Study dan studi literatur atas Rencana Aksi (Renaksi) dan pelaksanaannya
  2. Evaluasi awal dan pembobotan renaksi 
  3. Serangkaian wawancara
  4. Penulisan Draft Pertama 
  5. Review Draft Pertama oleh IRM unit di Washington DC
  6. Perbaikan oleh IRM Researcher dan pembuatan Draft Kedua
  7. Review Draft Kedua oleh International Expert Panel
  8. Perbaikan Draft Kedua oleh IRM Researcher dan pembuatan Draft Ketiga
  9. Penjaringan Pendapat Publik (termasuk badan badan pemerintah yang terlibat)
  10. Perbaikan oleh IRM Researcher
  11. Review oleh IRM unit
  12. Peluncuran Laporan OGP
Untuk Renaksi 2013 ini, IRM unit telah memutuskan untuk membuat sebuah laporan pendek (short report) karena rentang waktu Renaksi 2013 sangat berdekatan dengan Renaksi 2014.

Saat ini, proses IRM telah mencapai tahapan penjaringan pendapat publik (termasuk lembaga pemerintah yang melaksanakan Renaksi OGP). Sebelumnya, rancangan laporan IRM ini telah melalui serangkaian proses penelaahan dan peninjauan oleh IRM support unit dan oleh Panel Pakar Internasional pada bulan November-Desember. 

Selama proses review berjenjang diatas berlangsung dari bulan November sampai awal Januari 2015, peneliti IRM tetap menerima berbagai masukan dari para pemangku kepentingan termasuk beberapa kementerian. Dengan demikian, berbagai masukan yang diterima sejak bulan November sampai sekarang belum dimasukkan kedalam versi laporan IRM saat ini. Masukan-masukan tersebut akan disatukan dengan masukan yang diterima selama masa penjaringan pendapat publik.


Untuk mengunduh rancangan laporan IRM, silahkan klik disini
Versi Bahasa Indonesia dari rancangan laporan IRM kini dalam proses penerjemahan.
Masa penjaringan pendapat: Januari 26, 2015 sampai dengan Februari 14, 2015
Pendapat bisa disampaikan lewat email mova(at)alafghani(dot)info 

Anda dapat juga mengirimkan masukan atas nama organisasi atau pribadi (dalam bentuk PDF) untuk dipublikasikan dalam halaman situs wiki CRPG OGP-IRM.

Lihat juga:

  

Mohamad Mova Al'Afghani, PhD
Peneliti IRM OGP 2013-2015

"Artificial Intelligence" akan menggantikan Lawyers pada 2030?

Sunday, January 4, 2015

Menurut sebuah laporan dari sebuah kantor konsultan, setidaknya pekerjaan due dilligence sudah akan dapat diserah terimakan dari Junior Lawyers ke software tahun 2030 nanti. Sebenarnya ini bukan hal yang baru. Beberapa pakar seperti David Bainbridge dan Richard Susskind sudah membayangkan sebuah sistem pakar untuk menggantikan peran lawyers.





Yang paling kontroversial tentu dari Susskind, dimana beberapa tahun lalu dia memprediksi bahwa di masa depan akan tersisa beberapa tipe lawyers: expert trusted adviser, enhanced practitioner, legal knowledge engineer, legal risk manager, dan legal hybrid. Legal knowledge engineer ini posisi yang menarik menurut saya, karena pekerjaannya adalah membuat packaging dan model penyelesaian.

Salah satu ide yang dilontarkan di Inggris adalah membuat model bantuan hukum seperti NHS Direct. Seperti diketahui, NHS Direct adalah portal kesehatan di Inggris yang bebas digunakan penduduknya. Portal ini bisa diakses lewat telepon maupun online dan juga menyediakan symptomps checker untuk mengecek gejala. Portalnya sendiri ditutup tahun 2013, tetapi sistemnya yang di Wales dan symptomp checkernya masih berjalan. 

Sementara itu di Kanada sedang hangat didiskusikan mengenai Alternative Business Structure (ABS) dari layanan hukum -- diantaranya untuk mengatasi berbagai kepakaran diluar hukum yang beririsan ke pelayanan hukum. Ada 3 model yang diusulkan:

  • Model #1 Business entities providing legal services only in which individuals and entities who are not licensed by the Law Society can have up to 49 per cent ownership.
  • Model #2: Business entities providing legal services only with no restrictions on ownership by individuals and entities who are not licensed by the Law Society.
  • Model #3 Business entities providing both legal and non-legal services (except those identified as posing a regulatory risk) in which individuals and entities who are not licensed by the Law Society would be permitted up to 49 per cent ownership.
Kembali ke soal due dilligence, apakah mungkin tahun 2030 diserahkan ke software? Yang saya tahu persis (dan juga gunakan) adalah bahwa software sistem manajemen dokumen saat ini sudah semakin baik. Dilengkapi dengan Optical Character Recognition yang sudah sangat efektif, ketelitian dan kecepatan software ini sangat bisa mengalahkan mata manusia. 

Disamping itu, dalam birokrasi juga terjadi berbagai penataan. Pemerintah memulai gerakan Sistem Informasi Perizinan (SIP) -- yang dulu ada di UKP4 dan sekarang masih berjalan walaupun UKP4 sudah tidak beroperasi. Sisminbakum juga memiliki potensi untuk bisa updating status AD/ART PT terakhir, real-time. Demikian juga, di pertanahan, BPN sudah membuat portal (masih sederhana sih) untuk layanan pertanahan (silahkan coba sendiri). Sementara itu, beberapa pengadilan (termasuk MA) sudah mempublikasikan register perkaranya online. Selain itu, sekarang ini di beberapa negara termasuk Indonesia juga sudah menjadi anggota Open Government Partnership (OGP) yang salah satu normanya adalah teknologi an inovasi untuk keterbukaan dan akuntabilitas. 

Keseluruhan dokumen diatas merupakan bagian standar dari kegiatan due dilligence atau uji tuntas. Apabila beberapa tahun lagi layanan-layanan tersebut bisa disediakan online secara akurat, maka tidak perlu lagi menggunakan manusia untuk mengecek satu persatu. Jadi, mungkin sekali -- setidaknya untuk due dilligence -- bahwa peran lawyer digantikan oleh software di masa depan. Tidak perlu artificial intelligence, cukup software yang terintegrasi dengan layanan yang sudah ada. 

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Open Government Partnership (OGP) IRM AP 2013 Supporting Documents

Wednesday, December 24, 2014



We compile a list of Indonesia's Open Government Partnership IRM AP 2013 supporting documents on our wiki page. Not all of the docs can be displayed there of course, due to copyright concern. Thus, only those which are in public domain or have been given permission are listed. If you have any objection that the docs are somewhat publish however, please do not hesitate to contact us.

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47 ACTION PLANS HAVE BEEN RELEASED FOR 2014-2015 (47 RENCANA AKSI TELAH DIRILIS UNTUK PERIODE 2014-2015)

Thursday, August 7, 2014

Indonesia has released the 3rd Action Plan for 2014-2015. The design is made to assure the equality with Indonesia’s OGP Lead Chairmanship theme of ‘Promoting Public Participation’. It also emphasizes the importance of OGP movement to sub-national provinces and city level, where there are the center of citizens and real development. The Action Plan has announced some innovation to increase the awareness of public participation, such as holding “SOLUSIMU” (“Your Solution” in English), the contest of proposing any solution from people across nation to improve governance system; integrating inputs from CSOs to formulate the CSOs’ recommendation for the Action Plan; and involving youth as a new stakeholder group in each action plan development meeting.

Indonesia telah merilis Rencana Aksi yang ketiga untuk periode 2014-2015. Desain Rencana Aksi (Renaksi) ini dibuat untuk menjamin kesetaraan dengan kepemimpinan Pemerintahan Terbuka yang bertemakan “Meningkatkan Partisipasi Masyarakat” (Promoting Public Participation). Hal ini juga menekankan pentingnya gerakan Pemerintahan Terbuka untuk tingkat provinsi sub-nasional dan kota, di mana wilayah tersebut merupakan tempat pemusatan warga dan tempat perkembangan riil. Renaksi ini telah membuat beberapa terobosan untuk meningkatkan kesadaran partisipasi publik., seperti “SOLUSIMU” (dalam Bahasa Inggris Your Solution) yaitu suatu kontes di mana orang-orang yang berbeda negara bisa mengusulkan solusi apapun untuk memperbaiki sistem pemerintahan; menggabungkan masukan-masukan dari Organisasi-organisasi Masyarakat Sipil (OMS) untuk Renaksi; dan melibatkan pemuda sebagai kelompok stakeholder baru untuk berpartisipasi dalam setiap pertemuan pengembangan Renaksi.


There are 47 Action Plans agreed and divided into four groups of commitments related to the public service area. The action plan has the aim of increasing transparency and accountability on every ministry in vital sectors, such as economy, health, education, social, and law.

Terdapat sebanyak 47 Renaksi yang telah disepakati dan diklasifikasikan menjadi empat kelompok komitmen yang terkait dengan area pelayanan publik. Renaksi ini memiliki tujuan untuk meningkatkan transparansi dan akuntabilitas pada setiap kementrian di sektor-sektor utama, seperti ekonomi, kesehatan, pendidikan, sosial dan hukum.

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Human Right to Water and the Management of Indonesia’s Water Resources

Monday, December 13, 2010

I recently uploaded my World Water Week presentation’s background paper to the SSRN. The title of the paper is “The Potential Role of the Human Right to Water in the Management of Indonesia’s Water Resources”. In the paper, I argued that:
“…there are gaps in the Indonesian legal framework in securing transparency, access to information, participation, access to justice and the procedure in recognizing customary rights in water resources management. Without adequate access to these procedural rights, vulnerable, marginalized and financially weaker groups will be left out from water resources management and will not be able to secure their entitlements. The Human Right to Water has potentials for filling such gap by reforming the implementing regulation of the Water Resources Law and enhancing the possibility to obtain legal recourse”.

Colleague Hugo Tremblay reviewed this paper in his blog and commentedReading the paper, it sometimes feels like the human right to water is constituted of a bundle of ‘substantive’ and ‘procedural’ rights (ex: see p.4 last §, as well as subsection 5.b on Right(s) to participation, transparency and access to information). Are these rights constituent human rights included under a human right to water? Are they considered as autonomous human rights? Is this an illustration of the doctrine of indivisible, inter-related and inter-dependent human rights?”

While the right to receive and impart information is recognized as a form human rights (Article 19 of the UDHR), the conflation of this right into ‘Freedom of Information’ has sometimes been contested. Although many argued that freedom of information is a human rights (see for example, this article from Toby Mendel), some skeptic may argue that the original intent of Article 19 of the UDHR is to protect free speech and not to provide specific access to governmental information.

Furthermore, the concepts of transparency, participation and access to justice is often mingled with ‘good governance’. A presentation from Susanne Schmidt of the UNDP asked a question: “Is IWRM an HRBA?” The present state of research appears to acknowledge that the two are ‘mutually reinforcing’ with the latter (HRBA) focusing on the equity aspect of governance. A joint working paper of several organisations even consider HRBA as a specific kind of ‘governance’.

I acknowledge that the concept of HRBA still needs further clarification. That, I will not deal in this post. I will reserve it for another day :)

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Human Right to Water vs Integrated Water Resources Management?

Thursday, August 19, 2010

 

OK, maybe not quite a ‘vs’. Tension might be the right word. And here is a paper discussing the topic. Of all the criticism towards the human right to water, this paper might be among those which are most coherent. According to the author:

Abstract:
Water resources management has been shaped by a variety of paradigms reflecting the evolution of government policies and transient societal values. Integrated Water Resources Management (IWRM) became a predominant management framework in the 1990s. The Human Rights-Based Approach (HRBA) to development has also emerged recently as an influential approach in the water sector. IWRM and the HRBA to development in the water sector overlap significantly. The interactions between the two approaches remain largely unexplored although their repercussions may be significant. Because they do not share identical premises and objectives, the concurrent implementation the two approaches might also lead to tensions detrimental to water resources management. The aim of this article is to explore the interactions between IWRM and the HRBA to development in the water sector. Questions raised by perceived conflicts are identified to help address potential tensions when the two approaches coexist. Synergies between IWRM and the HRBA are also detailed to establish how the two approaches are aligned.

Title:

A Clash of Paradigms in the Water Sector? Tensions and Synergies Between Integrated Water Resources Management and the Human Rights-Based Approach to Development

Keywords: Water, Human Rights, Human Rights-Based Approach to Development (HRBA), Integrated Water Resources Management (IWRM)

 

There are four points of potential and existing tensions which the author raised. They are:

 

  1. The HRBA as an anthropocentric approach and the need for an ecosystemic contextualisation of claims on water resources;
  2. The HRBA as an vehicle for developmental aspirations and the acknowledgement of limits in water resources availability;
  3. The indistinct duties of right-holders in regards to the user-pays principle;
  4. Economic water management and the need to protect marginal groups and the poor;

Download yourself directly from the SSRN.


I am currently writing a paper for a conference and all of these four aspects above will be considered.

Enjoy reading….

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Transparency in the Judiciary (WB Publication)

Tuesday, August 10, 2010

I argued once that one of the method in curbing corruption in the judiciary is by enhancing its transparency. Most of you might be familiar with the famous formula developed initially by Klitgaard: Corruption= (Monopoly+Discretion)-(Accountability+Transparency).

 

The World Bank series in Governance recently issued a publication on how to enhance transparency/access of information in the judiciary in Latin America. The analytical framework might be valuable for a future Indonesian case-study. Enjoy reading!

 

Click here to download the file.



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Report on the human rights aspect of private sector participation in the water sector

Thursday, July 15, 2010


Quick blogging. Finally the long awaited report from the Independent Expert (IE) is out.

The report emphasize the importance of transparency, participation and accountability in water projects involving the private sector. On the transparency side, the IE even suggests that "Commercial confidentiality must not jeopardize the transparency requirements provided for under the human rights framework". Finally, she conclude and recommends that "The process of decision-making and implementation, any instruments that delegate service provision including contracts, and instruments that outline roles and responsibilities must be transparent, which requires the disclosure of adequate and sufficient information and actual access to information".

 

I hope this report ends the long speculation that the human right to water means outlawing “privatisation”. It does not and is never meant to be as such. The discourse on water has been cluttered with the privatisation debate. This report outline that the word “privatisation” itself is dilemmatic and the problem does not end there. Privatization has its problem and so does non-delegated or state-owned services. The real problem is governance, whether the service is public or private or hybrid.

More discussions follows.

Read the full report here.

Relevant posts:

Transparency in Water Services
Indonesian Water Services Suffering from a Lack of Governance
14 Disturbing Facts about Jakarta's Water
Where to complain for bad water services – a comparison
Jakarta’s water crisis, whose fault?
Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector
The Economist and the human right to water
Transparency Agenda in Water Utilities Regulation
Hukum Air (Water Law) is not really a topic in Indonesia
Papers:
Safeguarding water contracts in Indonesia
Constitutional Court review and the future of water law in Indonesia
Presentation:
Anticipating water trade




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Hukum Air (Water Law) is not really a topic in Indonesia

Monday, May 24, 2010

 

I tried googling “water law” in Google.com (the Indonesian term is “hukum air”) and on the first google page, I found no reference to any site relevant to my search. If you click on the link, you will find that everything on the page is related to the religious law pertaining water for prayers or religious activities. None of them refers to water law.

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I then googled “privatisasi air” (water privatization). Voila, everything in the first page is relevant. I scrolled down unto the 6th page, and everything reflects the true meaning of my google query.


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From my queries, I can infer that water law is simply not (yet) a substantial part of the public discourse. But conversely, privatization is. So talks about water in Indonesia is dominated with the privatization discourse. What is interesting, the discourse of water privatization is much focused in the privatization of ‘water utilities’. If you speak bahasa Indonesia and google “privatisasi air”, you will find that most of the pages are critical towards the privatization of water utilities. Only one or two discusses water privatization in another context. Another thing: almost none (at least in google’s 1-3rd page) discusses sanitation.

On the one hand, it is a positive thing that privatisation is becoming a part of public discourse, but on the other hand, it is a pity that the debate is dominated only with privatisation of water utilities. What we need now is a better governance of our water (both resources and services) and law, is an important tool of governance. Privatization of utilities is only a small – albeit important and vital – part where law comes into play. But that’s not everything. We also need to think on how our resources is managed and how our services (both when they are public and private) are run.

It is not adequate for us to speak “against privatization”. We must also say what should be done when privatization is already the fact of life and what should be done when public ownership becomes the mode of delivery. Irrespective of the model (privatization or public ownership), in the end of the day, it is the consumer that needs to be defended. They need water to flow to their tap and they need the law to be on their side.  

Hence, water law should be in the discourse.

ps: if your google search (for hukum air) returns this post on the first page, then we might have contributed the “hukum air” meme into the discourse


Transparency in Water Services
Indonesian Water Services Suffering from a Lack of Governance
Supreme Court Decision on Water Monopoly in Batam
Missing water and shadow users
14 Disturbing Facts about Jakarta's Water
Tomorrow, the Freedom of Information Law is in force!
Three ways for your business to be implicated by the new Indonesian freedom of information law
Where to complain for bad water services – a comparison
Jakarta’s water crisis, whose fault? 
Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector
The Economist and the human right to water
Transparency Agenda in Water Utilities Regulation


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Transparency Agenda in Water Utilities Regulation

Thursday, May 20, 2010

 

I contributed a paper about the transparency agenda in water utilities regulation and the role of Freedom of Information Law for the next edition of the Journal of Water Law. The case studies are England and Indonesia. The paper is quite relevant for the situation in Indonesia as the Freedom of Information Law has just been recently enacted and not so many literature is available. This is the content of the forthcoming Journal of Water Law which you might find interesting:

 

CONTENTS

 

Preface

Promoting water (law) for all Addressing the world’s water problems – a focus

on international and national water law and the challenges of an integrated approach

PATRICIA WOUTERS, SARAH HENDRY

 

International Water Law

Reframing the water security dialogue

DAN TARLOCK, PATRICIA WOUTERS

 

Introducing an analytical framework for water security: a platform for the refinement of

international water law BJØRN-OLIVER MAGSIG

 

The principle of good faith in the Argentina-Uruguay pulp mills dispute

TERESA LIGUORI

 

Examining the thresholds of harm for international watercourses in the Canada-US

context: would a mining development in the Flathead River watershed violate the Boundary

Waters Treaty?

MICHAEL AZULAY

 

The concepts of equitable utilization, no significant harm and benefit sharing under

the Nile River Basin Cooperative Framework Agreement: some highlights on theory and

practice

MUSA MOHAMMED ABSENO


International water law in Central Asia: commitments, compliance and beyond

DINARA ZIGANSHINA

 

National Water Law

Protection of foreign investment and the implications for regulation of water services and

resources: challenges for investment arbitration
ANA MARIA DAZA VARGAS

Responding to the ‘water crisis’: the complementary roles of water governance and

the human right to water
HILARY J GRIMES

The transparency agenda in water utilities regulation and the role of freedom of

information: England and Jakarta case studies

MOHAMAD MOVA AL ‘AFGHANI

 

Valuing water in law: how can Indigenous cultural values be reconciled with Australia’s

water law in order to strengthen Indigenous water rights?

TRAN TRAN

An analytical framework for legal regimes applicable to freshwater ecosystems

HUGO TREMBLAY

Bridging the water law, policy, science interface: flood risk management in Scotland

CHRIS SPRAY, TOM BALL, JOSSELIN ROUILLARD


Related Posts:
Transparency in Water Services
Indonesian Water Services Suffering from a Lack of Governance
Supreme Court Decision on Water Monopoly in Batam
Missing water and shadow users
14 Disturbing Facts about Jakarta's Water
Tomorrow, the Freedom of Information Law is in force!
Three ways for your business to be implicated by the new Indonesian freedom of information law
Where to complain for bad water services – a comparison
Jakarta’s water crisis, whose fault?

Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector

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Gender and Development Special Issue: Water

Thursday, May 6, 2010

Hat Tip to Mulia.

Oxfam/Routledge published a special issue on water in Gender and Development Journal. The articles can be downloaded for free.

Gender and community mobilisation for urban water infrastructure investment in southern Nigeria
Charisma Acey

'Good' water governance and gender equity: a troubled relationship
Frances Cleaver and Kristin Harmada

Sustainable development, water resources management and women's empowerment: the Wanaraniya Water Project in Sri Lanka
Seela Aladuwaka and Janet Momsen

Unequal burden: water privatisation and women's human rights in Tanzania
Rebecca Brown

After the summit: women's access to water and policymaking in Brazil
Marianna Leite

Oxfam experience of providing screened toilet, bathing and menstruation units in its earthquake response in Pakistan
Jamila Nawaz, Shamma Lal, Saira Raza and Sarah House

Can water professionals meet gender goals? A case study of the Department of Irrigation in Nepal
Pranita B. Udas and Margreet Z. Zwarteveen

Menstrual hygiene in South Asia: a neglected issue for WASH (water, sanitation and hygiene) programmes
Thérèse Mahon and Maria Fernandes

I cannot drink water on an empty stomach: a gender perspective on living with drought
Frank S. Arku and Cynthia Arku

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Troubled Waters: Confronting the Water Crisis in Australia’s Cities (Free Ebook)

Monday, May 3, 2010

Quick Blogging. For water enthusiasts, there’s a free ebook from ANU Press titled Troubled Waters: Confronting the Water Crisis in Australia’s Cities. Click on the snippet below to download.

 



Here’s the abstract:

Must we build more dams and desalination plants, or should we be managing the demand for urban water more prudently? This book explores the demand for urban water and how it has changed in response to shifting social mores over the past century. It explains how demand for centralised provision of water might be reshaped to enable the cities to better cope with expected changes in supply as our climate changes. And it discusses the implications of property rights in water for proposals to privatise water services.



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Tomorrow, the Freedom of Information Law is in force!

Thursday, April 29, 2010

Let's not forget that tomorrow, Law No. 14 Year 2008 on the Openness of Public Information (FoI Law) will be in full force. What it means is that you can now request any information to government agencies, NGOs and State Owned Enterprises.

To get a glimpse on how the law looks like, read my article here. Bear in mind that although you are in the private sector, there is still a risk that you might be covered by the FoI, if:

  1. Your business is defined as a 'public body' under the Freedom of Information Law
  2. You are engaged in a contract with the government
  3. You submit compliance report or any other data to government agencies (and some one else has an interest on that)


To understand more on how FoI Law will affect your business, read this article. Search through the transparency label of this blog posts to know more detail.

The official announcement from the Ministry of Information can be found here (in Bahasa). It says nothing much though, only repeatedly citing the articles of the FoI Law. However, it does say that the understanding of 'public body' may expand to non governmental institutions, thereby supporting my argument above  that purely private sectors would be implicated.

If you have any question, upon which these links is unable to answer, email me at movanet(at)gmail.com, or, leave a comment below.

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IWRM vs Water Governance vs Right to Water vs Water Security

Wednesday, April 28, 2010

Do they overlap?
What is the 'comparative advantage' of each concept over another?
What? IWRM is essentially about governance?
Ah, you mean the human right to water is essentially about governance?

What is 'not' governance?
What 'is' governance?

What? Did you just asked, if these concepts actually works?
Well my friend, theories always work in theory, but seldom in practice.
What really matter is not whether it works or not, but whether its coherent :)

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Three ways for your business to be implicated by the new Indonesian freedom of information law

Monday, April 26, 2010

1. Your business is defined as a 'public body' under the Freedom of Information Law
2. You are engaged in a contract with the government
3. You submit compliance report or any other data to government agencies (and some one else has an interest on that)

I discussed this in detail, in my recent op-ed.


Business implications of the freedom of information law

Mohamad Mova Al Afghani, Dundee, UK | Mon, 04/26/2010 9:02 AM | Opinion
A | A | A |
The entry into force of the Freedom of Information (FoI) Law in Indonesia will have significant impact not only on government operation but also business. Business could either benefit, or in another circumstances, be harmed, by information disclosure through the FoI regime.
FoI’s initial intention is in creating transparency of government. The reasoning was mainly political, that is, that transparency is one of the central prerequisits of democracy. Recent findings in the economics of information added the justifications for transparency.
The transparency framework may help reduce the risk of market failure by lowering information asymmetry between market actors. Development in the economics of corruption also strengthened the arguments for transparency.
Transparency, the research suggests, not only increases the likelihood of corruption detection but also the cost for the perpetrators to conceal their corruption, thereby deterring them from corrupt behavior.
Business can benefit from FoI. Information behind allegedly unfair tenders, project opportunities or government policies that otherwise cannot be obtained unless a person has a close connection to government officials can now be retrieved through formal procedures.
Thus, FoI, to a certain extent, can contribute to the creation of a level playing field between businesses, which is crucial for efficient market competition to exist.
However, FoI could also mean that businesses are more exposed than before.
Government was the central theme for every FoI regime around the world. But today, this is not entirely true. The spread of the “new public management ideology” gave way to public-private partnership, private finance initiative, outsourcing and other arrangements involving the participation of the private sector in public services. Thus, if in the past it is the state and its government who holds real power — and therefore must be held accountable — today, in many respects, it is the private sector that does.
Hence, the focus of FoI around the world is shifting, not only scrutinizing the state and its government as it were in the past, but also the private sector.
There are three ways in which business information can be revealed through the Indonesian FoI. First, is through the definition of the “public body”, second is through submission to government agencies and third, through a contractual relation with the government.
In other countries, the FoI holds the private sector accountable through several legislative techniques. One of the techniques refrain from defining “public bodies” (entities in which the FoI regime would be applicable) in the FoI Act, but provide it through a list in a secondary or tertiary legislation instead. Corporations which deal with the government in public services could be included in the list.
With this technique, it is much easier to modify the list according to the needs. For example, if tomorrow a water company is privatized, the government can include the company into the list for a period of time as long as they engage in public services.
Our FoI does not follow such scheme but chooses to define “public bodies” instead. Under the FoI law “public bodies” are defined, as either a government entity or other entities in which its primary task is related to the management of the state and is funded through the state or regional budgets or, an NGO receiving full or partial amounts of the state budget, public contribution or foreign funds. It is clear that state owned enterprises is a public body for the purpose of the FoI.
What is not really clear is the definition of NGOs under the last category. Since there is no requirement that restricts the understanding of an NGO to a non-profit entity, business entities can also be defined as “non-governmental”.
Other than being defined as a “public body” as discussed above, there are two other ways for a business to fall under an FoI regime. The second is through government contracts.
The FoI law mandates that any contracts between the government and a third party should be published. “Contracts with third parties” is a broad formulation.
So far, there is no clarity if all details of a contract including its annexes should also be published, although one could argue that the exemption clauses could apply.
Third is through the submission of reports to government agencies. Businesses regularly submit compliance reports. As soon as the data is transferred to the government, the information will fall under the FoI regime.
The government agents will be obliged to disclose any information after a request is made, unless the exemption clause under the FoI law applies.
Data with such environmental information can generally be disclosed, while data related to company financials submitted to capital market supervisory agencies or the tax office can be exempted by other legislation.
It is important to note however, that this exemption is not absolute. This data can still be disclosed if there is public interest.
The protection given to businesses under the FoI law is not clear, so far. In other countries, there is generally, an exemption clause for “commercial information”.
This type of clause protects all sorts of commercial interests which may be harmed through FoI disclosure.
Some FoI legislations around the world also impose an obligation on public bodies to consult third parties that are affected before a disclosure is made, and create a legal standing for them in disclosure cases before information commissions or the courts.
In common law jurisdictions, normally there is a clause in its FoIs, exempting information provided “in confidence” from disclosure. This is the sort of information submitted to public bodies on a trust-basis, such as those protecting the relation between a lawyer and its clients or a doctor with its patient, or a company with a regulator. Our FoI does not have these kinds of exemptions.
Our FoI law does contain a clause which protects information related to intellectual property rights and information in which disclosure would undermine “fair business competition”.
For the business society however, this clause can be vague. Most intellectual property rights (IPR) such as patents and copyrights follow transparency principles. Only a minority of the IPRs such as trade secrets are designed to thrive under an opaque environment.
The prevention of disclosure for the purpose of protecting “fair business competition” can be founded in theory, but may be difficult in practice. It is difficult to be practiced because it requires public bodies and information commissions to evaluate if a certain disclosure will distort competition.
Such case may require the determination of market segments where such information is the commodity. I am not confident that public bodies, information commissions and the courts are up to the task.
Due to these vague clauses under the FoI law, the guidelines and implementing regulation by which these clauses are to be interpreted and applied, must be drafted openly with a participatory approach, taking into account the views of the civil society and the business community altogether.


The writer is the founder of the Center for Law Information.






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Water Governance in Malaysia

Monday, April 5, 2010

A new paper from Chan (2010) about water governance in Malaysia argues the importance of stakeholder participation, transparency and accountability. Chan opined that the current move towards the centralisation of water services provision in Malaysia should be reconsidered as it well have an impact towards participation and transparency in the water services sector. 

Below is the abstract:

Currently, it is widely believed that many water companies are linked to powerful politicians, making the awarding of contracts, tariffs and other management aspects non-transparent and ineffective. Ideally, politicians that govern should act on the professional advice of the water managers and not the other way around. Another area of water governance that needs to be intensified is the war against corruption. In the water sector, there should also be an all-out war on corruption at all levels of governance, in both the public and private sectors. Government should make all contracts in the water sector awarded through open tender with public consultation to ensure professionalism, fairness, transparency, accountability and good governance. Equally, all contracts and other relevant documents drawn up between the government and private companies should not be "classified" but instead be public documents available to the public for discussion, review and improvement. Another area to ensure better governance is for the government to engage and actively involved all stakeholders in the water sector, especially civil society and NGOs. Finally, the Federal Government should reconsider its plans to centralize the water sector by taking it over from State Governments. This is because, centralization would be contradictory towards involvement of all stakeholders and also pose problems to many states that had already privatized the water sector. Finally, governance of the water sector should be based on Integrated Water Resources Management which is the logical way forward in ensuring sustainable development. 

In my paper for the Journal of Water Law (forthcoming), I discuss in specific the problem of transparency in the water sector and explore how institutions and legal framework could tackle them. I agree with Chan that tarrifs, contracts and tender should be transparent. At page 151 he argued:

To achieve the above objective, the government should make all contracts in the water sector awarded through open tender with public consultation. This would ensure professionalism, fairness, transparency, accountability and good governance. Equally, all contracts and other relevant documents drawn up between the government and private companies should not be “classified” but instead be public documents available to the public for discussion, review and improvement.

The condition is similar in Indonesia. In my March 30th newspaper article, I wrote:

When a Jakarta citizen asks to what rights are they entitled as a water customer, there’s not much that the 1992 and 1993 bylaws can answer because the 1998 privatization has changed the landscape of accountability from Jakarta’s local government and PAM Jaya to its concessionaires.

Some of the answers could be provided in the concession contracts. Unfortunately, the concession contracts are said to contain a confidentiality clause and therefore are never to be found in the public domain.

It appears that both Malaysia and Indonesia faces similar problem with respect to the transparency of contracts and operations. Fortunately, Indonesia have a Freedom of Information Law which will be enforced starting from next month and we do not have (yet-- and hopefully never will have) an Official Security Act  (OSA). I red in Malaysiakini that some of the water deals are actually covered by OSA. 

Read Chan's full paper here