Tentang "Negara Mundur" dan Konsekuensinya Terhadap Hukum Administrasi (The State in Retreat and Its Consequences on Administrative Law)

Saturday, April 19, 2014

I was invited to Municipal Services Project Conference, Putting Public in Public Services: Research, Action and Equity in the Global South International Conference – Cape Town, South Africa April 13-16, 2014. My paper entitled "The State Retreats and Never Returns: Consequences of Neoliberal Reforms on Administrative Law Protection in Indonesia" and the conference presentation are available for download int he links provided (both in English). The remainder of this post will be in Bahasa Indonesia.

Saya diundang oleh Municipal Services Project untuk memberikan presentasi atas karya tulis saya, pada Konferensi Putting Public in Public Services: Research, Action and Equity in the Global South International Conference – Cape Town, South Africa April 13-16, 2014. Paper saya yang berjudul  "The State Retreats and Never Returns: Consequences of Neoliberal Reforms on Administrative Law Protection in Indonesia" beserta presentasinya dapat di download di link tersebut.

Pada intinya tulisan saya membahas mengenai fenomena "negara mundur" dan penolakan terhadap "negara regulasi" di Indonesia. Baik fenomena negara mundur dan diskursus perihal "negara regulasi" sebenarnya belum begitu populer di Indonesia, walaupun pada kenyataannya, gejala tersebut ditemukan dalam kehidupan sehari-hari.

Saya membandingkan fenomena mundurnya negara di Indonesia dengan di beberapa negara industri maju, terutama di eropah. Di eropah, negara mundur dan kemudian kembali lagi sebagai regulator, yang mana perannya tidak lagi memberikan pelayanan publik, melainkan sebagai regulator atas pelayanan publik yang diberikan oleh pihak bukan negara (non state actors). Nah, di Indonesia, menurut analisa dan beberapa studi kasus yang saya lakukan, negara juga mundur, namun tidak kembali lagi sebagai regulator. Sebagai konsekuensinya, maka beberapa perlindungan hukum administrasi negara yang tadinya tersedia bagi warga negara, menjadi tidak tersedia. Saya memberikan beberapa studi kasus: Privatisasi Air di Batam, Penerapan UU Keterbukaan Informasi Publik pada Konsesi Air di Jakarta dan terakhir, Keterbatasan UU Pelayanan Publik. 

Ada dua penjelasan yang saya tawarkan. Pertama, penolakan Negara Regulasi pada tingkatan Mahkamah Konstitusi -- karena pengaruh beberapa Jurist yang mendukung negara kesejahteraan seperti Wolfgang Friedmann -- dan di sisi lain, delegasi/privatisasi terselubung kepada aktor bukan negara, yakni privatisasi yang dilakukan bukan dengan metode "full divestiture" atau penjualan saham atau aset, melainkan lewat kontrak dan mekanisme lainnya. Ironisnya, gerakan menolak privatisasi menurut saya, justru mengakibatkan regulasi tidak berkembang dan perlindungan hukum administrasi menjadi hilang.

Penjelasan kedua adalah gerakan tata kelola pemerintahan (Good Governance), yang hanya menitik beratkan akuntabilitas pada fungsi tradisional negara, sementara fungsi-fungsi tersebut sebenarnya sudah didelegasikan kepada aktor bukan negara. Trend ini, misalnya lewat UU Keterbukaan Informasi Publik atau UU Pelayanan Publik memang cukup efektif dalam membuat negara akuntabel, tapi tidak efektif atau tidak berguna pada fungsi-fungsi yang didelegasikan.

Dalam konferensi saya bertemu banyak delegasi dari negara lain yang memberikan penjelasan menarik atas pelayanan publik di negaranya masing masing. Saya mendapatkan banyak kasus menarik mengenai pemberdayaan Perusahaan Milik Negara/BUMN di Malaysia (Kesehatan), Uruguay (Telekom) dan juga pemberdayaan sektor informal di India dan beberapa negara lainnya.

 

The Free Flow Principles from Article 19

Sunday, April 6, 2014

I was invited for an expert meeting in London by Article 19 last February, to discuss transparency principles applicable to water resources and services. The meeting provides input to the Free Flow Principles launched by Article 19 on the eve of the World Water Day. 


image

Below are quotes from several experts and activists invited to the meeting:

Amadou Kanoute, CICODEV, Senegal:
“Two years ago we heard through the media about the government's plan to overhaul the institutional framework of the water delivery service in Senegal. The planned move from a service contract to a 25-year concession to a private company, would have meant a 41% increase on the tariff of water and would have made it difficult for disadvantaged consumers to access such an essential service. Just having that information and then being able to expose it pushed the government to revert. But what could have happened in Senegal has already taken place in many other countries in Africa, without notice and without people being given the opportunity to air their views. In our case we were lucky to have a free press to alert us. The Free Flow Principles – specifying obligations of states in regard to right to know, right to be heard, right to speak, public participation and transparency – will be useful to all advocacy efforts on rights to water and sanitation.”
Vanessa Lucena Empinotti, Environmental Governance Research Group at PROCAM/IEE/University of São Paulo, Brazil:
“The Free Flow Principles will be instrumental in increasing transparency practices and access to information in the field of water resources.  Particularly in Brazil, The Principles will reinforce the participatory and decentralized water institutions already in place and consequently increase their influence over the State and private sector. Access to information is critical to ensuring equitable access to water and sanitation.”
Rezaul Karim Chowdhury, Coast Trust, Bangladesh:
“In Bangladesh, we are in the midst of a drinking water crisis in both coastal and urban areas, mostly due to climate change. The situation is particularly critical for women who, in carrying the burden of providing for their families, are the worst to suffer. These Principles will be an invaluable tool for communities and civil society activists advocating for better governance.”
Mohamad Mova Al'Afghani, Center for Water Governance, Indonesia:
“In Indonesia, disclosure in water and sanitation sector is minimal. Contracts are often kept secret and water governance tends to be implemented in a highly technical, exclusive and elitist manner. Problems relating to water are not simply about pipes and infrastructures. They are about how people resolve disputes amongst themselves and how they are able to relate themselves to the environment. If water democracy is to be realized, the public must be enabled to participate meaningfully in the process. The Principles will help empower people to do so.”
Scott Griffen, International Press Institute, Austria:
"These Principles reflect an increasing recognition of the link between development and freedom of expression. By assisting journalists to define those rights and seek to improve and promote journalistic coverage of development issues, The Principles will very much compliment our efforts to  guide journalists in their reporting of development issues. We look forward to distributing The Free Flow Principles to our network."

You can download the full principles here (English).

Mohamad Mova Al'Afghani

 

FoI commission needs strengthening

Saturday, July 27, 2013



Mohamad Mova Al’Afghani, Bogor, West Java | Opinion (The Jakarta Post) | Tue, July 16 2013 

The House of Representatives has elected seven members to the National Freedom of Information (FoI) Commission who will serve for the next four years. 

The role of the commission is crucial in the reform process as it is mandated by the Freedom of Information Law No. 14/2008 to preside over disputes between the public and public bodies concerning access to information. 

After four years, what have we learned so far from the commission? 

First of all, the commission still lacks structural independence. Although Law No. 14/2008 stipulates that the commission is an “independent” body, it financially relies on the Communications and Information Ministry. In practice, the commission is a “task force” under the ministry, because it can only propose a budget through the 
Ministry’s secretariat-general. 

Worse, the commission has no liberty to appoint and recruit its own administrative officers. The commission staff members are employees of the ministry. These disadvantages will adversely impact on the performance of the commission’s employees.

In regulation theories, budgetary and employment issues are the two key determinants of independence. A regulatory body is said to be truly independent from the executive if its budget and human resources administration are not dependent on executive entities. 

The rationale for promoting the commission’s independence is because it hears disputes between the public and the government. 

Thus, the commission is expected to be neutral, fair and able to resist any pressure from the government side. But due to the lack of independence on budgetary and employment matters, the commission is prone to influence and pressure from the executive. 

The pressure may not be in the form of repression, but snail-paced approval of budgets or limited manpower support. The issue of independence is becoming more important with the 2014 elections drawing near. It is very likely that public requests for information related to political parties’ budget and election disputes will rise. 

Second, there is a need to uphold the personal integrity of the FoI commissioners. The commission has enacted a “code of ethics” but it short stops of regulating conflicts of interest. In advanced jurisdictions, conflicts of interest are not only regulated but also made transparent. 

Independent bodies in advanced jurisdictions publish a register of their members’ past, present and potential conflicts of interest and include a list of past employment, political-party affiliation, share ownership, directorship and 
consulting projects. 

This register of interest is then published on the institution’s website. This sort of transparency mechanism will prevent conflicts of interest from occurring as disputants will know beforehand and can raise objections to the composition of a dispute panel.

Third, there has to be value for money in bureaucracy. We need to be constantly reminded that transparency comes at a price despite the benefits it provides. FoI in the UK costs around £35.5 million (US$53.4) per year (2005) while in the US it costs US$382 million per year (2009). Such expenditure includes both the cost of compliance by public bodies and the operational cost of the FoI commission.

Just as the efficiency of courts is evaluated, a FoI commission can be evaluated in terms of its case-handling. The part of the case-flow where adjudication and deliberation takes places is not a subject for evaluation since judges and arbitrators can take a long time to deliberate a single case and the length of deliberation is oftentimes not an indication of a measure of justice. 

Nevertheless, this can still be used as an indicator or an estimate of efficiency in case handling. 

However, the genuinely administrative part of a dispute-settlement body can always be subjected to efficiency scrutiny. 

This includes, among other things, the process of filing or case registration, notifications to disputants, determination of panel members and inter-institutional cooperation for execution. A justice system can be said to be efficient if these administrative processes are not time consuming. 

It is possible to benchmark and rate quasi-judicial bodies such as the FoI commission (including the election commission, or the competition commission in this respect) in terms of their administrative efficiency. We can then see — on average — how much time is required by each of these commissions for each case, notwithstanding the complexity and differences in the nature of the disputes settled by them.

Fourth and finally, there is a need to enhance the quality of decisions or recommendations rendered by the commission. 

While dispute resolution is the primary duty of the commission, promotion and other forms of public relations activities are only secondary to this. One essential skill imperative for the fulfillment of this core duty is the skill of case analysis and writing judgments. 

FoI commissioners must have strong analytical abilities and be conversant in the art of legal hermeneutics. They must be able to interpret abstract legal notions such as “the public interest” in concrete cases. Such skills are not easy because case-law has not really developed in our legal system. 

Thus, the commissioner may not find a lot on “public interest” through case-law and as a consequence they may be required to develop their own interpretations.

What is important for a commissioner is not to render politically correct judgments, such as those that are in favor of transparency merely because it is more popular in civil society. What needs to be done is to arrive at the right and just decision. 

When internal capacity is lacking, a FoI commissioner should then hire experts in order to carry out the research in difficult cases in which precedence is lacking. There is a developing discipline of “comparative FoI” which looks at the norms, policies and practices of FoI in other jurisdictions that could be used as an approach to settle difficult cases.

The writer is a member of the Indonesian FoI Network. He has a PhD in law from the University of Dundee, UK.

 

Cash-strapped governments will need private sector investment to meet sustainable transport objectives, OECD says

Wednesday, May 22, 2013

OECD published a new report on transport:

 

Cash-strapped governments will need private sector investment to meet sustainable transport objectives, OECD says

 

Boosting private sector investment in sustainable transport infrastructure will be essential as governments seek to meet long-term economic and environmental objectives at a time of constrained public finances, according to a new OECD report.

Mobilising Private Investment in Sustainable Transport: The Case of Land-Based Passenger Transport Infrastructure points out that investment in transport systems is a powerful driver of long-term growth. It also notes, however, that the transport sector is the second largest contributor to greenhouse gas (GHG) emissions globally, contributing 23% of carbon dioxide (CO2) emissions from fossil-fuel combustion, as well as a significant source of pollutants which pose serious risks to human health. 

 

Transport emissions could double by 2050 if governments fail to address unsustainable patterns in existing models, the OECD said.  The new report encourages policymakers and private sector actors to shift investments away from emissions-intensive transport infrastructure that is not resilient to climate change towards more sustainable transport modes, such as metros, passenger rail, bus rapid transit or electric vehicle charging stations.   

 

"It is urgent that investment in transportation moves towards building right, not just building more. The private sector has a key role to play in this shift, which will help governments to meet the pressing economic, social and environmental challenges they will face over coming decades." OECD Secretary-General Angel Gurría said during the launch of the report at the International Transport Forum's annual summit in Leipzig, Germany. "Governments on their part must play a central role in mobilising private sector investment for sustainable transport infrastructure."

 

The new OECD working paper provides governments with a comprehensive toolkit of key policy instruments to mobilise private investment in sustainable transport infrastructure. It builds on the OECD's Green Investment Policy Framework, and emphasises the need for integrated, domestic policy frameworks to address investment barriers.

The OECD Green Investment Policy Framework

 

Source: Adapted from Corfee-Morlot et al., 2012.

Key policy recommendations include:

 

·         Adopt a "co-benefits" approach.  While sustainable transport projects are often driven by a range of policy objectives, including reduced traffic congestion and local air pollution, when properly implemented they can also help achieve climate change goals. The Bus Rapid Transit system in Mexico City reduced travel time for users by 40%, significantly reduced exposure to particulate matter, and in addition achieved annual GHG emissions savings of 110.000 tons.

 

·         Use pricing instruments such as carbon prices, fuel and vehicle taxes, reform of fossil-fuel subsidies and congestion charges to shift incentives away from fossil-fuel based road transport. Successful congestion charges operate in London, Stockholm and Singapore.

 

·         Implement regulations and standards that complement pricing instruments, such as zoning policies and land use planning, standards and public procurement programs.

 

·         Use innovative financial tools and risk-sharing mechanisms to mobilise new sources of financing. Land value capture tools, for example, aim to harness revenues from the increase in property value generated by new or renovated transport infrastructure. They can be used as part of the capital financing mix to improve projects' profitability, as in the case of the Hong Kong transit railway Setting suitable financing vehicles is particularly critical to attract institutional investors such as pension funds.

 

·         Build capacity and implement soft policy tools to change business and consumer behaviour, such as public awareness campaigns.

The working paper is available here, and is summarized here. More information on OECD's work on climate finance and investment is provided at www.oecd.org/env/cc/financing.

For further information, journalists can contact Geraldine Ang or Virginie Marchal of the OECD Environment Directorate or the OECD Media Office (tel.: +33 1 45 24 97 00).

See German version here.

About the OECD: The OECD is the global economic policy forum. It provides analysis and advice to its 34 member governments and other countries worldwide, promoting better policies for better lives.

 

 

 

Louise Fietz
Media Coordinator
Public Affairs and Communications Directorate, Media Division

 

2, rue André Pascal - 75775 Paris Cedex 16
Tel: +33 1 45 24 80 91 –  Fax: +33 1 45 24 94 37

Louise.Fietz@oecd.org  || www.oecd.org

 

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JAKARTA DECLARATION FOR STRENGTHENING THE THE RIGHT TO ENVIRONMENTAL INFORMATION FOR PEOPLE AND THE ENVIRONMENT

Monday, May 20, 2013

Below is the Jakarta Declaration adopted on the STRIPE Meeting on May 1, 2013


JAKARTA DECLARATION
FOR STRENGTHENING THE
THE RIGHT TO ENVIRONMENTAL INFORMATION FOR PEOPLE AND THE ENVIRONMENT
May 1, 2013

Representatives of governments, international organizations, civil society organizations, and 
academia from China, Indonesia, Japan, Mongolia, Philippines, and Thailand,  gathered in Jakarta, Indonesia 
between April 29- May 1 for the Strengthening the Right to Information for People and the Environment (STRIPE) 
regional meeting to propose strategies and new actions to improve environmental information in Asia for people and the environment:


PREAMBLE:
Recalling Principle 10 of the Rio Declaration1992 which states that environmental issues are best handled with the participation of all concerned citizens, and that each individual shall have appropriate access to information concerning the environment, the opportunity to participate in decision-making processes, and effective access to judicial and administrative proceedings,

Emphasizing that the Governments of China, Indonesia, Japan, Mongolia, and Thailand have all adopted Freedom of Information laws (FOI) or regulations which provide a right of access to information including environmental information,

Recognizing the need for an effective Freedom of Information law and Regulations in the Philippines to improve access to environmental information,

Acknowledging that air and water pollution continue to cause environmental degradation and contamination of the soil and sea and this is impacting people's health, social well-being, and livelihood across the region,

Concerned that the right of access to environmental information is critical to preserve people's health and environment and can contribute with people's participation to more effective pollution control,

Recognizing the essential role that people play in the pollution control process and the role Environmental Ministries and Agencies play to enable and support public engagement and protection of the environment,

Emphasizing that public disclosure programs that release information on the quality of air and water as well as discharges into the environment by private corporations and state-owned companies can assist in promoting pollution prevention, abatement, and good corporate behavior,

Recognizing that information needed by people includes the status of air and water quality and quantity, trends over time, permitting, monitoring and enforcement to enable and educate them to make decisions to protect their health and the health of their families,

Convinced that political commitment to implement the right of access to environmental information is necessary to protect people's right to a clean and healthy environment and their right to live and achieve the Millennium Development and Sustainable Development Goals.

FINDINGS:
The STRIPE REGIONAL MEETING hereby finds that:

1.   FOI laws assist in ensuring access to environmental information by people and communities. However, information on air and water quality and pollutants released into the environment needs to be released proactively, in formats that are easily understandable by the public, without a request.

2.   Government needs to adopt legal requirements for the collection and production of environmental information.

3.   Laws that guarante a specific right of access to environmental information without a request need to be operationalized to ensure quick and timely access to environmental information.

4.   The right of access to environmental information should be promoted at the international and regional level. The Aarhus Convention and the Latin American and the Carribean (LAC) regional process can serve as a model for the Asian region.

5.   The United Nations Environment Programme's (UNEP) Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (the Bali Guidelines) should be utilized by Governments in the region to raise standards of national legislation on access to environmental information.

6.   Governments in the Asian region need to improve FOI laws to comply with international standards. 
Areas of priority in the region include:

a.   Protection of public officials from being sued for the release of information under FOI laws;
b.   Penalties and administrative sanctions where public officials intentionally breach the law;
c.   Reforming broad exemptions in FOI laws and ensuring the public interest is considered in 
      deliberations whether to grant or refuse information;
d.   Removing limitations of the right to information to only citizens;
e.   Lowering fees for making requests and obtaining copies of documents;
f.    Removing requirements for people to provide a reason to make a request;
g.   Inclusion of private corporations that are required to carry out public functions and state 
      owned enterprises within the scope of the law;
h.   Developing up-to-date archive and records management laws that mandate the collection,
      retention and management of information by governments;
i.    Ensuring that information commissioners are independent and have sufficient power to order 
      the release of information.

7.   Effective implementation of FOI laws helps to expand access to environmental information.  
      Areas which need to be targeted for improvement in the region include;
a.   Responding to requests within the timelines under the law;
b.   Providing appropriate incentives to government officials to ensure compliance with FOI
      requirements;
c.   Allocation of necessary budgetary and other resources to ensure efficient and timely 
      administration;
d.   Appointment of information commissioners with the tools to ensure adequate enforcement of the 
      FOI law and providing methods for the disclosure of their decisions;
e.   Implementation of proactive disclosure provisions in FOI laws;
f.   Public education and training to empower civil society and communities to make full use of the 
     right;
g.  Improving training for government officials and systems for tracking, transferring and monitoring requests, and regular monitoring and
     reporting on the operation of the law;
h.  Collecting statistics on the number of requests submitted by the public, publication of FOI 
     decisions, information declared public, and decisions or recommendations of information commisioners;
i.   Review of the operation and compliance with the law, by legislative bodies and information
     commissioners.

8.   Significant barriers for local communities exist that impair their access to environmental 
information across the region.  Barriers include costs and limited information being available at 
local public authorities as well as understandability of technical information.

9.   The public has a right to participate in the setting of priorities on the types of 
environmental information to be released proactively including, but not limited to, planning 
applications, environmental impact assessments, permits, air and water quality monitoring 
information, and inspection reports.


10. Environmental information must be available in a usable and understandable form.  There is a 
need to analyze and interpret data to make it meaningful for all stakeholders. Academics, 
Government Agencies and civil society, and the media all have a role to play in this process.


11. It is important to release environmental information and data at all stages of collection and 
analysis on the internet. Information must be made available to local communities and in a wide 
range of formats including internet, tv, radio, newspaper, paper records and mobile phones. It must 
be systematic, timely, reliable, comprehensive, user friendly, accessible, inexpensive and 
accurate.


12. The use of information enables public participation. Transparency must be guaranteed and 
oopportunities need to be given for public participation in
a.   Policy making
b.   Formulation of standards for release of air and water pollutants c.   Planning stage
d.   Application for permission for  development e.   Grant and Renewal of Permits
f.   Environmental impact assessment processes
g.   Enforcement and reporting of violations
h.   Environmental disclosure programs, for example Pollutant Release and Transfer Registers

13. Capacity building and training of civil society to support communities to interpret data and 
use of information will foster support for transparency amongst all sectors of society.

14. Governments must present environmental information in graphic representations such as maps and 
charts, using symbols and colours to identify risks, and demonstrate breaches or compliance with 
standards, and provide meaningful and relevant information.

15. Access to corporate, facility and state-owned enterprise information that reveals pollutant 
discharges and its impact on the environment is limited in many countries in the region. Emission and Discharge 
data from the corporate sector must be provided to the Government to enable monitoring of the 
environment.
This information shall not fall within the category of commercially confidential information as it 
directly relates to the environment and public health and should be released in the public interest. Rules 
should not allow claims of commercial confidentiality or trade secrets to supercede public interest 
as this information directly relates to environmental and public health.

16. Stronger Legislative frameworks must be enacted that require the proactive release of 
information of pollutant discharge, stored and transfered information. Creating mandatory 
environmental information disclosure programs such as pollutant release transfer registers are a 
priority for the region. Pollution data should be linked to government enforcement, and  in 
addition it should communicate risk to public health and the environment. Where companies 
proactively disclosed pollutant discharge information this can strengthen corporate social responsibility.


Further info, click here 

 

The Key to Water for All is Governance, Governance, Governance

Monday, January 14, 2013

Four Government Ministers: (left to right: Minister Armida of BPPN, Minister Djoko of Public Works, Minister Agus of Finance, Minister Gamawan of Home Affairs). Minister Agus highlighted three important features of water utilities reform in Indonesia: professional management, business planning, Tariff.

Meanwhile, Minister Gamawan (Home Affairs) stated his intention to reorganize water utilities in the regional autonomy law. The valid law was enacted in 1962 and has never been amended. Hence, The home affairs will try to reform this by amending the regional autonomy law.

 

Water is Life, The Vice President Said

Vice President Boediono opens the Indonesian Water and Wastewater Expo and Forum. Here's my note on his speech:

1. Water is life, a basic need
2. Municipality/Regency government has huge responsibility
3. Synergy is required
4. The VP asks the audience to strengthen commitment. His office will incorporate results of the IWWEF's symposiums
5. We may miss MDG target (55% safe drinking water so far)
6. 105 PDAM not healthy 85 are "sick"
7. PDAMs are the spearhead of water services
8. From 175 PDAM restructured, 72 has zero progress
9. Corporate Governance for PDAM is key. Political interventions leads to inefficiencies
10. We need to have long term vision. Politician only have 5 year vision. Statesmen has vision for generations.
11. VP: I promise that I will support anything we can do at the central level
12. State/Regional Budget (APBN/APBD) may not be sufficient. It can be used for urgent matters, such as in supporting the poor. But we need other financing schemes.
13. PPP is a good model. If the regions require assistance, the central govt will provide