ENVIRONMENTAL MANAGEMENT IN INDONESIA?
6. CONCLUSION
political problem: the perceived need to have a law that treats all units similarly, in the face of the reality that there are wide and relevant differ- ences between them’.110
In the long term, it can be considered to issue an Indonesian General Administrative Law Code pertaining to general issues of administrative law.
Then these issues no longer need to be included in the RGA, the EMA, or other particular administrative laws.
5.4. Non-legal Means to Strengthen Environmental Management
which is often lacking at the district and municipal level. Another reason is that many environmental problems manifest themselves beyond the district/municipal borders, and should therefore be tackled by the higher administrations. It is not without reason that environmental issues take a prominent position on the agenda for international cooperation. As a matter of fact, increasingly national environmental legislation follows international environmental agreements, rather than the other way round. Considering this, a top-down approach is to remain a consistent feature of any environmental management system.
The RGA 1999 appears to be an over-reaction against Law 5 of 1974, which used to be a cornerstone of Orde Baru. It embraces the notion of wide- ranging regional autonomy instead of limited regional autonomy as advocated by Law 5 of 1974. Today there is much evidence that in many policy sectors, and in environmental management more than anywhere else, the RGA 1999 has worked out adversely. For the sake of environmental protection some re- centralization of government powers seems inevitable. For this purpose I have suggested re-establishing a hierarchical organization of State, Province, and District/Municipality, and strengthening the role of the Provinces as interme- diate levels of governments. Ultimately the Indonesian government needs to steer a middle course between Law 5 of 1974 and the RGA 1999.
The EMA 1997 pursues a rather centralist approach for it is modelled on Law 5 of 1974. This is reflected in the provisions on environmental standard setting, licensing and enforcing authority. At the same time, however, these provisions are loosely worded and refer to follow-up regulations for their further elaboration and implementation. In particular procedural rules for licensing (including EIA), supervision, and enforcement are missing in the EMA 1997. Besides this, many of the announced follow-up regulations have not been issued or have failed to live up to expectations of legal specificity and cohesion. Altogether, this has resulted in environmental management that is ineffective and lacks transparency.
Since the enactment of the RGA 1999 this general picture has worsened.
The RGA 1999 lays important environmental management tasks at the level of the district and municipal governments. Given the absence of an elaborate legal-institutional framework for environmental protection, many district and municipal governments operate at random. Because regional autonomy to a substantial degree also means financial self-sufficiency, many decisions of the district and municipal governments do not take into account environmental considerations. The RGA 1999 states that lower regulations must comply with higher regulations, but solid provisions concerning cooperation and upward accountability between the three levels of government are lacking.
In any case, a positive contribution of the RGA 1999 is the abolition of a parallel administration for central government functions at the regional level.
Now that these functions are performed by the regional government itself, many business licences as well as environmental licences are issued by the Districts and Municipalities. This certainly improves the chances for inte- grated and coordinated licensing. The next step would be to vest licensing as well as enforcing powers in one and the same authority. In view of these recommendations it is necessary to rewrite Articles 18 to 27 EMA 1997. At the same time, it is important to establish mechanisms for second-line supervision and enforcement by higher levels of government and/or Environmental Inspectorates. The legal facility for these arrangements can be laid down in an EMA, an RGA, or in both acts.
In order to reduce the administrative burden of Districts and Municipalities, Indonesia could follow the Dutch example by introducing so-called ‘general rules’ – which are in fact detailed technical prescriptions – for various cate- gories of polluting activities. Whenever such general rules apply to a particu- lar activity, they replace, fully or partly, the environmental licence. One could devise a system of general rules that allows for certain local-specific adjust- ments. In this manner, the regional governments can – but need not – tailor general rules to local circumstances, for example by means of regional by- laws. An additional important virtue of general rules is that one can steer around corruption pitfalls in the licensing process.
This chapter has identified some problems with the EMA 1997, the RGA 1999, and their interactions. On the basis of decentralization theory and comparative law some proposals are made to change the EMA 1997 and the RGA 1999, following a step-by-step approach. These changes must go hand- in-hand with capacity building at all levels of government. Regarding this, it is important that the competent authorities are provided with accurate and up- to-date environmental information. The Indonesian government may consider investing in a nationwide information network on environmental regulations and technology. For this purpose the Dutch Infomil may serve as a useful example.
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