Walhi to refile petition against water law

The Jakarta Post, Jakarta

Shortly after its petition was rejected by the Constitutional Court, the Indonesian Environmental Forum (Walhi) said on Thursday it planned to file a new one with additional evidence in a determined bid to challenge the water resources law.

The court rejected on Tuesday a request from Walhi and other non-governmental organizations for a judicial review of the controversial law. The plaintiffs argued that the legislation would turn water into a tradable commodity, sold for profit, thus jeopardizing the public's ability to afford tap water.

Walhi said the new evidence will include Government Regulation No. 16/2005 on drinking water systems, issued in March, which is seen as contrary to Law No. 7/2004 on Water Resources.

For the first time, the court opened the way for the petitioners to refile the same case if the government is deemed to have implemented the water law not in line with the court's interpretations of the law.

The court's verdict is normally final and cannot be challenged.

In its 523-page verdict, the court deemed that the water law was geared toward protecting water companies and that "privatization" of the water sector was not implied.

"The court interpreted it to mean that the state must take charge of managing water resources, with only limited involvement by the private sector allowed, if the government fails to do so. But the law's Article 46 says a private company could fully participate in the whole process of the development of water provision system," said Walhi's campaigner P. Raja Siregar on Thursday.

This, he said, meant that the private companies could manage water resources in many areas that have not yet been tapped by the government, many of which remain due to the government's limited capacity.

The court also agrees with the law's Article 26 saying the management of drinking water should be carried out by state-owned firms, imposing only management service fees.

However, the law says in Article 60 that the components to determine the rate that customers pay also should include unspecified other costs and also profit.

The law also says that state-owned firms can involve cooperatives, private firms and/or the public if they are unable to fully carry out their role.

This is different from the court's interpretation -- that it is the public whose participation should be given priority.

Contradicting articles in the law were actually made as the basis for two of the nine judges of the court, who produced dissenting opinions.

"This means that the court was reluctant to reject our petition, particularly with the dissenting opinions and the possibility to refile our case," said Raja.

Despite being given another chance, Raja questioned the feasibility of refiling the same judicial review since, if the time should arrive, tense public debate on such an unprecedented policy might thwart the effort.

He also said the petitioners would send a letter to the court early next week to get a clearer explanation on whether the clauses oblige the government to issue ancillary regulations in accordance with the court's interpretation were legally binding.

The government is expected to issue around seven more ancillary regulations to implement the law, said Raja.

"Because in its ruling, these clauses are only written as considerations, but not as part of the final verdict. If they're not part of the verdict itself, thus not legally binding, then the chance to refile the case is only lip service," he argued.