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

 

(and get a free advice on something)

Jennifer asked:

Who would be a good person to tweet for advise on Clemency and human rights? I support Australian Schapelle Corby who is mentally ill and her lawyer has appealed to the Indonesian president for clemency. I believe she is innocent and did not receive a fair trial but now her mental health is priority. She was sentenced to 20 years which is harsh by Indonesian standards with no testing of the evidence despite her demands to police and prosecution (these tests may of proved her innocence). She has suffered enough and needs to come home. Thanks, any info would be appreciated

Short answer: perhaps these people can help:

@taufikbasari @arijuliano @anggarasuwahju @TodungLubis @lisrasukur

Long answer: follow them on twitter, discover their network and give a shot. Perhaps it is better to drag people’s attention through your own twitter campaign. A lot of people is using twitter to extend their advocacy to the online world.  An important feature in this effort is in creating incentives for people to tweet their opinion. The incentive could either be external (from outside factors, such as a praise or a thank you note from other people) but they are mostly internal (they just feel good about tweeting). I will try to elaborate this further on my next post.

Related posts:

Twittering the Indonesian Legal Community
ABAnet Twitter Debate on Virtual Law Office
6 Free Collaboration Tools for Lawyers

 

If you are in England, UK:

 

 

Consumer Council for Water : Consumer Council for Water via kwout

 

 

If you are in Victoria, Australia:

 

 

 

If you are in Indonesia:

 

 

 

 

With one caveat however. The Indonesian Ombudsman does not deal particularly with water (or utilities issues). So I have no idea how they can help, especially when the service is privatized. Read my article here.

 

Related Posts:

 

Missing water and shadow users
Human Right Aspects of Private Sector Participation in the Water Sector
14 Disturbing Facts about Jakarta's Water
Water companies duty to satisfy reasonable demands

 

 

Suppose you have just built a new home in a nice city. All your neighbours has water connection, unfortunately, the local water company refuse to extend their pipes into your property. Do you think they are acting against the law?

 

Before we argue on the basis of positive law, I will first raise the issue on what the law ‘should be’ : Do you think the law should obligate water companies to provide connections to consumer? To put it into other terms, can water companies refuse a connection request? If they can, under what basis?

 

The answer to the first question is ‘yes’. The reason is because water is a special kind of good. Many authors classify it into merit good and quasi public good, I do not wish to discuss this in a more detail. To illustrate, consider the differences of buying water from buying clothes. In buying clothes, you have a number of option, you can go either to debenhams, zara or marks & spencer. But for water, it is likely that you are stuck with only one company for the whole city. If that company refuses to trade, then you are doomed. This is what natural monopoly is all about in practice: consumer is stucked with few option or no option at all. Existing customer also find it difficult to exit from the market as no competitor is available in their local. So, unless the water company is regulated, they can do anything they want.

 

How should the law deals with this phenomenon?

 

The English Law obligates water companies to ‘satisfy reasonable demands’. This is what the Water Industry Act 1991 says:

 

Domestic connections

45Duty to make connections with main

(1) Subject to the following provisions of this section and to sections 46 and 47 below, it shall be the duty of a water undertaker (in accordance with section 51 below) to make a connection under this section where the owner or occupier of any premises in the undertaker’s area which—

(a)consist in the whole or any part of a building; or

(b)are premises on which any person is proposing to erect any building or part of a building,

serves a notice on the undertaker requiring it, for the purpose of providing a supply of water for domestic purposes to that building or part of a building, to connect a service pipe to those premises with one of the undertaker’s water mains.

(2)Where a notice has been served for the purposes of this section, the duty imposed by subsection (1) above shall be a duty, at the expense of the person serving the notice, to make the connection required by the notice if—

(a)the main with which the service pipe is required to be connected is neither a trunk main nor a water main which is or is to be used solely for the purpose of supplying water otherwise than for domestic purposes; and

(b)such conditions as the undertaker may have imposed under sections 47 to 50 below have been satisfied;

and, subject to section 51 below, that duty shall arise whether or not the service pipe to which the notice relates has been laid when the notice is served.

(3)A notice for the purposes of this section—

(a)shall be accompanied or supplemented by all such information as the undertaker may reasonably require; and

(b)if the notice has effect so that a requirement is imposed on the undertaker by virtue of section 46(4) below, shall set out the matters that have given rise to the imposition of that requirement;

but, subject to section 51(5) below and without prejudice to the effect (if any) of any other contravention of this subsection, a failure to provide information in pursuance of the obligation to supplement such a notice shall not invalidate that notice.

(4)The duty imposed on a water undertaker by this section shall be owed to the person who served the notice by virtue of which the duty arises.

(5)Where a duty is owed by virtue of subsection (4) above to any person, any breach of that duty which causes that person to sustain loss or damage shall be actionable at the suit of that person; but, in any proceedings brought against a water undertaker in pursuance of this subsection, it shall be a defence for the undertaker to show that it took all reasonable steps and exercised all due diligence to avoid the breach.

(6)Where a water undertaker carries out any works which it is its duty under this section to carry out at another person’s expense, the undertaker shall be entitled to recover from that person an amount equal to the expenses reasonably incurred by the undertaker in carrying out the works.

(7)Nothing in this section or in sections 46 to 51 below shall impose any duty on a water undertaker to connect a service pipe to any premises with a service pipe to any other premises.

(8)In the following provisions of this Chapter a notice served for the purposes of this section is referred to as a connection notice.

 

 

Now let’s see what the Indonesian Law ( Government Regulation 16 Year 2005) suggests:

 

Hak dan Kewajiban Penyelenggara
Pasal 68

 

(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

 

Sorry for non English speakers. Article 68(2) of GR 16/2005 regulates the  obligations of a water undertaker in Indonesia. Unfortunately, the obligations they owed is only towards existing customers. I am unable to find any provisions obligating the undertakers to extend their pipes to prospective customers. There is, however, a general obligation for the Regional Government to provide water services to citizens in their locale (See Art. 40.c).

 

Hence, if you complain why your water company refuse to extend their pipes to your newly erected building or homes, the law may not be on your side. Sorry :(

 

Related Posts:

Indonesian Water Services Suffering from a Lack of Governance

Supreme Court Decision on Water Monopoly in Batam 

Missing water and shadow users
Troubled Waters: Confronting the Water Crisis in Australia’s Cities (Free Ebook)
14 Disturbing Facts about Jakarta's Water

I hope our brother blog would have some time to indulge us in this never ending debate about the right to water (IUCN paper here):

The term ‘right to water’ does not only refer to the rights of people but also to the needs of the environment with regard to river basins, lakes, etc. Realistically, a right to water cannot be secured without attention to this broader context. A failure to recognise water as an environmental resource may jeopardise the rights-based approach, which views water primarily as a social resource. (Scanlon et al. 2004: 22)

 

I have no doubt that there is a duty to protect the environment. But arguing that the right to water extends into the environmental right to water is a bit too much, I think – or perhaps not?

I don’t quite understand the logical flow. Is it like this:

• Right to Water –> Secure the trees and lakes, etc –> Water for everyone

If yes. Then how ‘bout this:

• Right to education –> safe the trees –> trees to build schools for everyone

(Which means that everyone on the Easter Island violated the right to education—as well as the right to housing, health and so many other rights). I have no doubt that cutting the trees too much may reduce the long term of availability of water. But cutting trees may also provide immediate housing and livelihood. Sucking out fossil water, the great manmade river project (BBC news story here) for example is definitely not sustainable (and its environmental impacts are not yet known), but they said that it’d be able to quench Libya’s thirst for tens of years.

 

  

 

Qadhafi may actually be providing the short-term needs of the Libyan for water, without any regard to environmental sustainability. Is this not the right to water?

Consider the view of this Equadorian blogger about their water law (H.T. to our neighbor blog). He demands that the law must comprise of 9 points, one of them being the rights of the nature and a deprivatization policy.

 

From the outset of the right to water debate, we can see a differing view. One perceives it to be ultimately anthropocentric, while the other sees it as inherent with the environment. Integrating the latter’s view into the former might be difficult, as it must pass through some anthropocentrical tests. For example, if you support the latter’s view, you will have to convince Qhadafi that drilling out Libya’s fossil water will jeopardize humanity. If the harm caused by the activity is remote, or ‘insubstantial’ compared to the immediate gains, then you might lose your argument. If the harm is unknown, a defeat is certain.

 

There are practical implications too. If the right to water is to comprise the latter view, its enforcement may be on the same level with existing environmental principles, which are considered soft laws. However, the point of having it is to provide a powerful advocacy basis for human rights campaigner. Then, there is a fear that interpreting the right of environment to water into the right to water would dilute this power.

 

Quick blogging. Follow this hashtag #22TwDb

 

From Ted:

 

1. You've got to judge law mainly by its effect on the broader society, not individual disputes.

2. For law to be the platform for freedom, people have to trust it.

3. Law sets boundaries, and on one side of those boundaries are all the things you can't do or must do. But those same boundaries are supposed to define and protect a dry ground of freedom.

4.To rebuild the boundaries of freedom, two changes are essential: (i) simplify the law and (ii) restore the authority to judges and officials to interpret and apply the law.

Philip continued:

We have to simplify the law. We have to migrate from all this complexity towards general principles and goals. The constitution is only 16 pages long. Worked pretty well for 200 years. Law has to be simple enough so that people can internalize it in their daily choices. Here is the hardest and biggest change. We have to restore the authority to judges and officials to interpret and apply the law. interpret and apply the law. (Applause) We have to rehumanize the law. To make law simple so that you feel free, the people in charge have to be free to use their judgment to interpret and apply the law in accord with reasonable social norms. As you're going down, and walking down the sidewalk during the day you have to think, that if there is a dispute, there is somebody in society who sees it as their job to affirmatively protect you if you are acting reasonably. That person doesn't exist today.

You know what, I asked futurist David Brin once, and he told me that the law of the future will only have one or two articles.

With a little reflection thanks to Star Trek, I think the law of the future will only have one article.

Separately, Gayus Lumbuun from the Indonesian Democratic Party of Struggle (PDI-P) said that the House leaders had to explain what really happened on the documents which should have been completely sent to the KPK.

Deputy House speaker Priyo Budi Santoso from the Golkar Party said he too was surprised by the fact that the KPK had yet to receive all the necessary documents and that the House leaders would investigate into the issue.

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

Video: Kruha

The Jakarta Globe runs a special edition about Jakarta's Water last year and wrap them nicely in a downloadable PDF. I will sum up the statistics quoted by the globe in this Water special edition:


1. 20% of Jakartans have no access to toilet
2. 35 million people expected to be living and using water in Greater Jakarta by 2020
3. 60% less spending on infrastructure as a proportion of GDP than In Suharto's era
4. 140 elephants the weight of raw sewage goes into Jakarta's ground or waterways daily
5. 400,000 liters of waste dumped In the capital's rivers or canals everyday
6. 25cm some parts of Jakarta sink every year
7. $5.8 billion is Indonesia's annual economic and health cost for poor sanitation
8. 40% of homes in Jakarta have no piped water
9. 50% of treated water leaks out before getting to users
10. 20,000 squatters living on the banks of Pluit reservoir
11. 56,000 households flush their sewage straight into the ground
12. $600 low-end cost to connect a home to piped sewage system
13. 20% of the city’s daily waste ends up in local rivers, reducing their flow rate up to 50%
14. 150cm depth the city has sunk in some parts over the last decade

Some of the most prominent figures of the Indonesian legal community is sharing their thoughts in twitter. Sometimes, when they are happy, they provide advices too, with 140 characters, that is.

(Hey, in this world, nothing is free, except for advices. And for lawyers, oftentimes, that is also not free. So, 140 characters is a good thing to start.)

So, who’s on Twitter? Here’s a list of those benevolent lawyers.

1. Taufik Basari often tweets about human rights law.

2. Pramudya tweets about Law and Economics.

3. Ari Juliano, who is the Indonesian Coordinator for the Creative Commons Project, often tweets about IPR

4. Faiz, our future Constitutional Court Chief Justice, tweets about, well, Constitution.

5. Arsil has his own Jurisprudence class in Twitter.

6. Anggara, our savvy Press Lawyer (he did several Judicial Reviews related to press law by the way) tweets here.

7. If you are a law student, keep an eye on Legal101 (from students, for students :)

8. Oh, I tweet too. You can find me here. I tried to organize my useful tweets, with this hashtag #lawtalk . Pram is also joining me in this hashtag. 

These people are quite friendly. So I think they will be happy to answer your twitter queries.

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.

 

3. Tungle
You are a very busy person with lots of schedules, but yet, your firm can’t afford to pay a secretary? It’s OK, not a problem. Tungle will help to sort out your scheduling problem.

5. Offisync
The old school of doing review is by turning the track changes on and then sending it once you made the review. Well, there’s a more effective way of doing it.

Offisync, well, sync, your office files with Google Docs and allow instant, online collaboration with coworkers. However, there is a caveat. You may not be able to save the doc files in its original MS Word Format, unless you have a premium account with google apps. So, everytime you save docs in offisync, it save it in google doc format. If you have plenty of tables and footnotes, you might want to be a bit careful using the service. I hope they will sort out this problem soon. I will update you when they do.



6. Finally, Google Apps

Hi All,

I am trying to use LiveWriter and checks if the blogger label functions properly. Wish you all

a nice weekend!

Another exciting transparency tool from the US: interactive disclosure of yearly clean water act violations. According to the EPA's Press Release:

The new web page provides interactive information from EPA’s 2008 Annual Noncompliance Report, which pertains to about 40,000 permitted Clean Water Act dischargers across the country. The report lists state-by-state summary data of violations and enforcement responses taken by the states for smaller facilities. The new web page also makes it easy to compare states by compliance rates and enforcement actions taken and provides access to updated State Review Framework (SRF) reports. 

Disclosure is a way of increasing the compliance level of a rule. Water quality may have implications to land values and effluent quality reflects a company's efficiency level. With more stakeholders scrutinizing your company, it is expected that you would be more careful about your waste level. Otherwise, either investors will take action to remove the managers, or, the local citizen will take action for their diminishing property value.

Have a look at the site, here.

Happy Freedom of Information Law Day!!!

Today, Indonesia embraces the new era of transparency by the entry into force of the FoI Law. This post will discuss exiting web tools used to enforce FoI regime around the world. The internet can be used to make transparency system more transparent! Here is how:

1. United Kingdom -- Whatdotheyknow.com 

Whatdotheyknow is quite an ingenious web portal, designed to make transparency request transparent. This way, we will all know which government branches are lagging behind in processing their FoI. I've tried this system before and it works just perfectly. Have a look at my FoI request here.

2. United States -- Thisweknow.org

Thisweknow.org acts as a database provider of the data in the US Government. For example, I want to know which factory in Nevada releases mercury. And here's the search result.

3. United States -- Openmeetings.org

The US has several kinds of transparency laws. They have the Freedom of Information Act (as old as 1966) and they also have "Sunshine Laws". What are the differences? Well, the sunshine laws obligate public meetings for public officials. The law basically states that meetings for public services should not be held in secrecy, it should be held 'in the sunlight'. Sunlight is the best disinfectant, Justice Brandeis said, remember?

So, openmeetings.org provides the software to keep record of those meetings. Have a look.

In the next posts, I will give you and update of another tools. Stay tune!

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.

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 :)

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.

The summary of the UN expert consultation on the human right aspect of PSP is available in the FES website. The questions discussed can be seen here. Meanwhile, the number of feedback to the Independent Expert on the consultation continues to grow. This is the list of feedback.

Among the new feedback, Germany's view is particularly interesting.

Saya kira solusinya kita perbaiki moral melalui agama seluruh pimpinan negara ini. Sekarang ini kan orang tidak takut lagi sama Tuhan. Mereka tetap Sholat lima waktu tetapi korupsinya jalan terus. Kalau mereka ketemu daging babi muntah muntah, tetapi aspal dan pasir masuk perut.

Have a look at this interesting clip:



Same old question.

Let me put it another way.
1. Is education a commodity? You'd probably say no. But hey, why do we need to pay for piano and language courses? They should be freely provided by the state, no?

2. Is health service a commodity? If no, then why do you have to pay your health insurance?

3. Is water a commodity? If no, then why do we need to pay for coca cola, starbucks and all those beverages in Tesco's shelves?

If no water can be commodified, every bartender in this earth will lose their jobs. No one can open a Cafe' because all the drinks should be for free.

Now you probably said: no, because they are "processed". Those who process them added the value of water, and is entitled for their labor. But drinking water should be free.

Now wait a minute here. Aren't drinking water "processed" too? If you ask me to get you a bucket of water from uphill, aren't you supposed to pay me for my work? Those plumbing and water treatment plants need funds too, no? The tap's going have to come from somewhere.

But I agree that in some instances water should be provided for free by the state. In times of emergencies, natural disaster or for people in prison, the state should provide them with adequate and safe water. Also for those who can't afford to pay it. Subsidy measures should be available, or payment in arrears facility, or solidarity tariffs.

But we cannot say that water entirely cannot be commodified. Humans are not commodities, that I fully agree, both morally and legally. Sex should not be a commodity too, at least, morally. But some people think it differently. As such there are differences of opinion on whether the commodification of sex should be prohibited by the state.

That human is not a commodity is universal. But whether water is a commodity or not is highly contextual. It depends on what sort of water and in which situation.

The Indonesian Attorney General Office has started to investigate the allegation of corruption in the water sector. The amount money involved is 1 billion IDR. The project, which is fully funded by Makassar's regional budget is supposed to improve Makassar city's water supply. Read more (in Bahasa)

There is an interesting op-ed in today's Jakarta Post about Water Resources. The author argues:

There are three main reasons for the emergence of shadow users and the disappearance of water from the water table.

1. First, on face value, unlike countries that face water scarcity, Indonesia has abundant and easily accessible water resources.
2. Second, a small handful of non-state actors and activist organizations are not pluralistic by definition. These actors are politically driven, weak and sparse. Promoting a consensus based pluralistic dialogue and discourse is not their main agenda.
3. Third, both at the national and local levels, there are gaps in linking public policy-making with regulatory frameworks.

Can't agree more with the 2nd point. The water resources discourse in Indonesia is quite monolithic: it's either you are pro public ownership or pro privatization. I don't think this will get us anywhere.

Quick blogging. The controversial blasphemy law verdict by the Indonesian Constitutional Court has been published. You can download it here.

What do you think about the verdict?

Have your say.





 

For those of you interested in Integrated Water Resources Management (IWRM), have a look at a 2007 sylabus for the course at Florida International University here. There are some links to downloadable materials, papers and lecture notes too.

Big Hat Tip to the author of our brotherly blog who send me the link to this free ebook from the FAO. The title of the book is Law for water management: a guide to concepts and effective approaches. If you are a water law aficionado, download freely here (and save it to your hard drive, before the link is broken!)

It's been decided a few hours ago. The Constitutional Court ruled with one concurring opinion (Harjono) and one dissenting opinion (Maria) that the blasphemy law is here to stay. I do not think that this ruling with outlaw the possibility to submit another judicial review in the future. In the mean time, it might be worth to have a look at the Court's Decision (its not yet online -- will provide a link when it is) and Justice Maria's Dissenting Opinion.

See my recent working paper on the constitutionality of the Indonesian Blasphemy Law at the SSRN.

See related news at Detik (in Bahasa).

We've been talking about FoI Law for quite some time in this blog, but I have yet to provide you with a link to the Indonesian FoI. Click here to see Law 14 Year 2008 on the Openness of Public Information (yep, that's the long name).

Right2info.org provide a compilation of links to world's FoIs. Have a look at it here.