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.

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.

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

H.T to Bo.
The economist recently released an excellent report on water. But there are some parts of the report that disturbs me a little:

Industrial use takes about 60% of water in rich countries and 10% in the rest. The difference in domestic use is much smaller, 11% and 8% respectively. Some of the variation is explained by capacious baths, power showers and flush lavatories in the rich world. All humans, however, need a basic minimum of two litres of water in food or drink each day, and for this there is no substitute. No one survived in the ruins of Port-au-Prince for more than a few days after January’s earthquake unless they had access to some water-based food or drink. That is why many people in poor and arid countries—usually women or children—set off early each morning to trudge to the nearest well and return five or six hours later burdened with precious supplies. That is why many people believe water to be a human right, a necessity more basic than bread or a roof over the head.

From this much follows. One consequence is a widespread belief that no one should have to pay for water. The Byzantine emperor Justinian declared in the sixth century that “by natural law” air, running water, the sea and seashore were “common to all”. Many Indians agree, seeing groundwater in particular as a “democratic resource”. In Africa it is said that “even the jackal deserves to drink”.
A second consequence is that water often has a sacred or mystical quality that is invested in deities like Gong Gong and Osiris and rivers like the Jordan and the Ganges. Throughout history, man’s dependence on water has made him live near it or organise access to it. Water is in his body—it makes up about 60%—and in his soul. It has provided not just life and food but a means of transport, a way of keeping clean, a mechanism for removing sewage, a home for fish and other animals, a medium with which to cook, in which to swim, on which to skate and sail, a thing of beauty to provide inspiration, to gaze upon and to enjoy. No wonder a commodity with so many qualities, uses and associations has proved so difficult to organise.

If you read these sentences carefully, you will find:

• The reason why there is the right to water
• The first consequence of the right to water
• The second consequence of the right to water

What are they? Let’s return to the paragraphs:

 

Industrial use takes about 60% of water in rich countries and 10% in the rest. The difference in domestic use is much smaller, 11% and 8% respectively. Some of the variation is explained by capacious baths, power showers and flush lavatories in the rich world. All humans, however, need a basic minimum of two litres of water in food or drink each day, and for this there is no substitute. No one survived in the ruins of Port-au-Prince for more than a few days after January’s earthquake unless they had access to some water-based food or drink. That is why many people in poor and arid countries—usually women or children—set off early each morning to trudge to the nearest well and return five or six hours later burdened with precious supplies.  That is why [Reason] many people believe water to be a human right, a necessity more basic than bread or a roof over the head.
From this much follows. One consequence is a widespread belief that no one should have to pay for water. [First Consequence] The Byzantine emperor Justinian declared in the sixth century that “by natural law” air, running water, the sea and seashore were “common to all”. Many Indians agree, seeing groundwater in particular as a “democratic resource”. In Africa it is said that “even the jackal deserves to drink”. [ Example of first Consequence?]
A second consequence is that water often has a sacred or mystical quality that is invested in deities like Gong Gong and Osiris and rivers like the Jordan and the Ganges. [Second consequence] Throughout history, man’s dependence on water has made him live near it or organise access to it. Water is in his body—it makes up about 60%—and in his soul. It has provided not just life and food but a means of transport, a way of keeping clean, a mechanism for removing sewage, a home for fish and other animals, a medium with which to cook, in which to swim, on which to skate and sail, a thing of beauty to provide inspiration, to gaze upon and to enjoy. No wonder a commodity with so many qualities, uses and associations has proved so difficult to organise.

With all the respect to the economist, I think it is contestable that the human right to water causes either (1) the widespread belief that water is free or (2) that water is sacred and mystical.

Let’s discuss the first consequence. The economist is already quite prudent in not directly pointing out that human right to water means that water should be for free. Instead, it points out that human right to water makes people think that water should be free (a widespread belief). But is it true. Is it true that the human right to water makes people think that water should be free? It would require an empirical research to survey people’s opinion, not only about the human right to water, but also the term human rights in general. Is it true, that when something is labeled as “human rights”, then it should be free? This would make an interesting research in itself because it will have implications to human rights based access movements. My understanding is of course, that things which are labeled human rights, does not necessarily means that they are ‘free’. The right to education and the right to health are not free, although they are human rights. The right to vote is not free, because someone will have to provide and construct the ballots. Indeed, elections costs a lot.  

The examples of the first consequence is not really clear to me.  The second sentence (Justinian’s decree) does not really reinforce the assertion used on the main idea (human right to water causes the widespread belief that water should be free). But the sentence does provide an understanding that in the past people once regard water as ‘common to all’. This is correct. What is not correct is when they are tied to the main assertion. There is no relation between the human right to water and Justinian’s decree that water is a res communis. The two are different things. To put it in different way: Justinian does not say that running water is common to all, because it is a human right.

Now let’s move on to the second consequence: the right to water makes sacred or mystical qualities attached into it. I am almost certain that this is not the case. The Ganges were there, and was considered sacred, long before the term “Human Rights” were invented.

Anyway, probably it is me the one who misunderstood the Economist’s paragraphs above. Do you have a better suggestion?

 

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

 

The HRW 2010 report released earlier this May focused on Indonesia’s defamation law. According to the Human Rights Watch’s press release:

The 91-page report, "Turning Critics into Criminals: The Human Rights Consequences of Criminal Defamation Law in Indonesia," documents recent cases in which criminal libel, slander, and "insult" laws have been used to silence public criticism. Criminal defamation charges have been filed against individuals after they held public demonstrations protesting corruption, wrote letters to the editor complaining about fraud, registered formal complaints with the authorities, and published news reports about sensitive subjects.

In an SMH op-ed published today, the author of the report argue:

Not everyone in Indonesia who airs critical facts or opinions ends up accused of a criminal offence. But the arbitrary enforcement of such laws, and even the mere threat of enforcement, has a damaging chilling effect on civil society, the media, and private citizens' willingness to express critical thoughts or opinions, especially online.

The cover page of the report pictured Prita Mulyasari, the housewife sent to trial under the defamation law for complaining for a bad health service she had received from a hospital. In my earlier op-ed, I emphasize the need for an efficient and effective out of court settlement in health cases, such as that involving Prita’s:

In a market-based solution, the parties stay out of court. If the health service provider does something wrong, they pay the patient and the patient can agree not to sue at a price. If providers don't do anything wrong, they ask the patient to issue a public apology and a sum of money to the extent that they can pay. The cost expended in this mechanism is much lower compared to going to court. This mechanism requires the government to reduce information asymmetry in the market as parties can only negotiate when the evidence is available.

This report sends a very strong message to the international community and create pressures to the government that a reform is urgent. Click on the image below to download the full report:

 

Related posts:
Bringing patients to court may not be efficient
Housewife on trial for defamation

Good news from SSRN:

 

Dear Mohamad Mova al 'Afghani:

Your paper, "Religious Freedom in Indonesia Before and after Constitutional Amendments", was recently listed on SSRN's Top Ten download list for Asian Law eJournal, HRN Religious Studies Research Network, REL Subject Matter eJournals and Religion & Culture eJournal - Forthcoming. As of 05/17/2010, your paper has been downloaded 47 times. You may view the abstract and download statistics at http://papers.ssrn.com/abstract=1587256.

Top Ten Lists are updated on a daily basis. Click on the following link to view the Top Ten list for the journal Asian Law eJournal Top Ten, HRN Religious Studies Research Network Top Ten, REL Subject Matter eJournals Top Ten and Religion & Culture eJournal - Forthcoming Top Ten.

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If you have any questions regarding this notification or any other matter, please email AuthorSupport@SSRN.com or call 877-SSRNHelp (877.777.6435 toll free). Outside of the United States, call 00+1+585+4428170.

 


Hm... religion and constitution seemed to be quite a hot topic. I am not sure I’d get that much of downloads for my papers on governance issues.

Related Posts:
MK: The Blasphemy Law is here to stay
The nature of the Indonesian blasphemy law
The controversial blasphemy law verdict
More on Blasphemy Law
Does religion matter in corruption eradication?

 

In case you haven’t realize, the Nanotechnology Law blog adds a few links in the tabs: Lawfirm Directory and Add Lawfirm.

Lawfirm directory is a new feature aimed at collecting information about lawfirms practising Nanotechnology related issue. If you fill out the form and request a review, we will consider the application subject to further documentation provided by you.

Please note that the review is not an advertorial. If you request an advertorial, we will have to disclose it in the blog post.

Click here to download the list of firms and here (or scroll below) to fill out the form.

 

Related:

Solo Practicioner Lawyer, a Trend?
The future of work: no cubicle culture, smaller companies, working from home

 

The company refused to be blamed:

 

“The massive silting that broke the pump in Pulogadung was caused by the declining quality of water. We fixed the pump and parts of the pipeline network,” Yosua said. “This  shortage is not entirely our fault.”
He said it would take more time for water to reach areas located farther from the main pipelines, which had been empty for days.
“And there are people in several neighborhoods in North Jakarta who collect water from hydrants too, and this makes [the distribution of water] even worse,” Yosua added.
Aetra Air Jakarta said it was becoming increasingly difficult to provide millions of Jakartans with potable water.
“The city has become overpopulated, and the levels of pollution have increased exponentially,” Yosua said. “These two factors greatly contribute to water  shortages in the city.”

Consumers are entitled to water services based on the service level as determined by law (if there are components of the service levels which are based on contracts, then they will not apply, as the law automatically derogates them). In Indonesia, water quality level is determined by the decree of the ministry of health  907/MENKES/SK/VII/2002 and Government Regulation 16/2005 (GR 16/2005) Article 6.2. In Jakarta, the continuity of water services is guaranteed by Regional by Law 13/92 and 11/93.

If any of these service levels are violated, based on GR 16/2005, consumer shall have the right to compensation. Article  67.1.a and 68.2.e of GR 16/2005 stipulates (in Bahasa):

(1) Setiap pelanggan air minum berhak:
a. memperoleh pelayanan air minum yang memenuhi syarat kualitas, kuantitas, dan
kontinuitas sesuai dengan standar yang ditetapkan;
b. mendapatkan informasi tentang struktur dan besaran tarif serta tagihan;
c. mengajukan gugatan atas pelayanan yang merugikan dirinya ke pengadilan;
d. mendapatkan ganti rugi yang layak sebagai akibat kelalaian pelayanan; dan
e. memperoleh pelayanan pembuangan air limbah atau penyedotan lumpur tinja.

Hak dan Kewajiban Penyelenggara
Pasal 68
(1) Setiap penyelenggara berhak:
a. memperoleh lahan untuk membangun sarana sesuai dengan peraturan perundangundangan;
b. menerima pembayaran jasa pelayanan sesuai dengan tarif/retribusi jasa pelayanan;
c. menetapkan dan mengenakan denda terhadap keterlambatan pembayaran tagihan;
d. memperoleh kuantitas air baku secara kontinu sesuai dengan izin yang telah
didapat;
e. memutus sambungan langganan kepada para pemakai/pelanggan yang tidak
memenuhi kewajibannya; dan
f. menggugat masyarakat atau organisasi lainnya yang melakukan kegiatan dan
mengakibatkan kerusakan prasarana dan sarana pelayanan.

(2) Setiap penyelenggara berkewajiban untuk:
a. menjamin pelayanan yang memenuhi standar yang ditetapkan;
b. memberikan informasi yang diperlukan kepada semua pihak yang berkepentingan
atas kejadian atau keadaan yang bersifat khusus dan berpotensi akan
menyebabkan perubahan atas kualitas dan kuantitas pelayanan;
c. mengoperasikan sarana dan memberikan pelayanan kepada semua
pemakai/pelanggan yang telah memenuhi syarat, kecuali dalam keadaan memaksa
(force majeure);
d. memberikan informasi mengenai pelaksanaan pelayanan;
e. memberikan ganti rugi yang layak kepada pelanggan atas kerugian yang
dideritanya;
f. mengikuti dan mematuhi upaya penyelesaian secara hukum apabila terjadi
perselisihan; dan
g. berperanserta pada upaya perlindungan dan pelestarian sumber daya air dalam
rangka konservasi lingkungan.
(3) Pemberian ganti rugi sebagaiman dimaksud pada ayat (2) huruf e diupayakan
berdasarkan penyelesaian di luar pengadilan atau melalui pengadilan.
(4) Upaya penyelesaian di luar pengadilan sebagaimana dimaksud pada ayat (3)
dilakukan dengan arbitrase atau alternatif penyelesaian sengketa sesuai dengan
peraturan perundang-undangan.

From the legal point of view, consumer has the right to receive the continuity, quality and quantity of water as prescribed by law. They should be compensated if these rights are interrupted or not fulfilled due to the negligence committed by water undertakers. GR 16/2005 above also prescribes that water undertaker must pay a decent compensation to consumer for the loss they sustained. Although GR 16 is not particularly clear on what it means by ‘loss’ but this is likely to be a term for ‘violation of service levels’. 

Hence, under the law, ‘whose fault’ is not really the question for consumer. GR 16 does not differentiate whether the fault lies on the part of the bulk water supplier (in this case, PT Jasa Tirta) or the treatment and distribution facility (in this case, Palyja or Aetra). What the law require is for the consumer to be compensated, irrespective of whose fault it is.

'Whose fault’ is more a question for the government. The government is the one responsible to provide accountability mechanism in response to the complicated structural arrangement in the water sector. The government should determine where the liability lies and direct the compensation fund from the liable party to consumer.

More in this issue: my interview with Kompas (in Bahasa). 

 

Related Posts:
14 Disturbing Facts about Jakarta's Water
Supreme Court Decision on Water Monopoly in Batam
Water companies duty to satisfy reasonable demands