Nicole Niessen
4. DECENTRALIZATION OF ENVIRONMENTAL MANAGEMENT IN INDONESIA
4.4. Constraints and Criticism
monitors the performance of the regional governments.81 In addition, it follows from Article 87 RGA 1999 that the Districts and Municipalities can establish inter-regional cooperation, for example in the form of a joint agency.
In the field of environmental management such cooperation has obvious advantages, not only because it will strengthen a single region’s legal-techni- cal capacity to tackle environmental problems, but also because both sources and effects of many environmental problems are of a cross-regional nature.
Furthermore, on the basis of Article 65 RGA 1999 the central government can establish technical institutes in the Region (Province, District, or Municipality) in accordance with the particular requirements of that Region.82 Because environmental management requires specific legal as well as techni- cal knowledge, it seems reasonable to create technical institutes providing assistance to the regional governments.
At the same time, however, the Indonesian government has vowed to foster regional autonomy (Article 112 RGA 1999), the three levels of government are not hierarchically organized (Article 4 (2) RGA 1999), and ultimately the implementation of these mechanisms depends on the willingness of the malfunctioning District or Municipality to surrender or share government authority, or to accept assistance.
yielded by the exploitation of natural resources as well as taxation.83In order to meet the latter aims, in recent years many Districts and Municipalities have developed policies to boost their regional economies at the expense of envi- ronmental protection.84
The RGA 1999 nevertheless offers some good prospects for Indonesia’s highly fragmented licensing structure. Prior to the RGA 1999, the sector ministries issued all business permits for large- or medium-scale establish- ments. Which ministry was competent depended on the type of business activ- ity. The licensing authority for small-scale activities was usually assigned to the departmental branches in the regions. Pursuant to the RGA 1999, however, many business licences – with the exception of logging concessions and mining permits – are presently issued by the district or municipal government.
Also important environmental licences – such as the waste water licence and the nuisance licence – are issued by the district or municipal government.85In the opinion of Bedner this should eventually lead to a combined business- environmental licence granted by the district/municipal government. This has two major advantages: a single licensing authority will reduce the administra- tive burden for government and industry, and it will also facilitate the super- vision and enforcement of compliance with licence conditions.86 A coordination mechanism with reciprocal effects can achieve similar advan- tages: in case (one of) the environmental licence(s) of Article 20 EMA 1997 is lacking, then the business licence of Articles 18–19 EMA either shall not be issued or shall be revoked.
Regarding the enforcement of environmental law, Article 25 EMA 1997 stipulates that the Governor is entitled to impose administrative coercion (paksaan pemerintahan) against the party that carries out business activities in violation of environmental law.87The Governor can delegate this competence to the District Head or Mayor. It is in contravention of the spirit of the RGA 1999 to assign enforcing authority to the provincial government when licens- ing authority rests with the district/municipal government. After all, the RGA 1999 has abolished any hierarchical links between the three levels of govern- ment. Furthermore, on the basis of Article 27 EMA 1997, the Head of Region – that is, the Governor, District Head, or Mayor in RGA 1999 terminology –
83 Kleden (2004).
84 Koesnadi (2003).
85 Bedner (2003, pp. 82–3).
86 Ibid., pp. 91–1.
87 It can be induced from Article 25 EMA 1997 that administrative coercion applies to acting without a business/environmental licence as well as not complying with the business/environmental licence. The elucidation of Article 25 EMA 1997 considers the matter ‘self-explanatory’ (cukup jelas).
can propose the revocation of a business licence to the competent official (pejabat yang berwenang) in case of serious infringements of environmental law. Now that the RGA 1999 assigns important licensing powers to the Districts and Municipalities, the chances are that both licensing and revoking powers are vested in one and the same administration. If in the current situa- tion licensing and revoking powers are distributed among different adminis- trations, one administration can submit a non-binding proposal to revoke a business licence to another administration.88 Altogether, the enforcement structure is complex and not very practical.
In 2002 the National Environmental Impact Management Agency (Bapedal) was merged with the Ministry for the Environment.89Previously, the tasks of Bapedal had been to assist the President in the management of environmental impacts, including licensing, prevention of and control over pollution and environmental damage, and rehabilitation of environment qual- ity in accordance with prevailing legislation. It particularly made significant contributions to the enforcement of environmental laws in the regions. Its merger with the Ministry for the Environment was to give the latter powers not only to formulate policies, but also to enforce them. The merger was much criticized by environmental NGOs, however, who feared that it would termi- nate Bapedal’s control function at a time when the enforcement of environ- mental policy should be more powerful.90Several years have passed since the merger, and there is widespread dissatisfaction with the new situation.91
Because of regional autonomy, there is no direct relationship between the Ministry for the Environment and the Environmental Agencies of the regional governments.92The Regional Environmental Agencies do not follow a partic- ular model that is copied across Indonesia.93They perform planning, licens- ing, monitoring, and enforcement functions on behalf of the regional government, whereby generally the District/Municipal Environmental Agencies have a stronger operational role than the Provincial Environmental Agencies. In line with the obscure delineation of responsibilities between the
88 For a more detailed discussion of administrative enforcement of environmen- tal law I refer to Chapter 8 of this volume.
89 Presidential Decree 2 of 2002.
90 Simanjuntak (2002a, 2002b, and 2002c).
91 Interviews with participants of the workshop ‘Revision of EMA 1997’, Bogor, 30–31 August 2004.
92 It should be noted that prior to the RGA 1999, the Ministry of the Environment did not have its own branches at the regional level since its status was non-portfolio.
93 Some are named Bapedalda, in line with Decree 98/1996 and Instruction 11/1997 of the Minister of the Interior, but this is not the case everywhere. The Regional Environmental Agencies are established by regional by-law.
three levels of government on the basis of the EMA 1997, the RGA 1999, and the GR 25/2000, the division of competences between the Environmental Agencies at national, provincial, and district/municipal levels is also very unclear and varies from region to region.94
To avoid many of today’s problems it is of crucial importance to clearly allocate specific authority for specific functions. It is recommended that the Ministry for the Environment holds a strong grip on nationwide environmen- tal protection. It should coordinate environmental decision-making between the different sectors of government as well as between the three levels of government. It should take the lead in the formulation of environmental stan- dards that must be observed by the regional governments, as Articles 8–11 and 14–15 EMA 1997 already presume. The provincial and district/municipal governments can issue additional environmental requirements that are tailored to specific local conditions. Regarding this, Article 70 RGA 1999 indeed assumes that lower legislation complies with higher legislation.95Operational functions – such as licensing, monitoring, and enforcement – are best dele- gated to the regional governments. To some extent this is done in the GR 25/2000, but its loose provisions allow for contradictory interpretations and lead to messy environmental management.
Given the absence of a clear and comprehensive legal-institutional frame- work for environmental management, the RGA 1999 was prone to produce further distortions.96Ultimately the RGA 1999 has led to the unintended result that every District or Municipality has become more and more inward-look- ing. There is a widespread misconception that regional autonomy must be understood as a sort of regional self-sufficiency or political parochialism. This not only leads to an absence of collaboration between Districts/Municipalities where this would be necessary to tackle a problem, but it also makes Districts/Municipalities reluctant to obey to their ‘superior’ levels of govern- ment.97According to a 1998 World Bank study, policy-makers in developing countries may not sufficiently understand the specific problems they want to overcome through decentralization, or they may adopt an ineffective strategy to solve them.98This once again brings us to the principal question of whether
94 Unpublished Australian consultancy report.
95 Article 70 RGA 1999: The by-law shall not be contradictory to the public interest, another by-law and higher legislation.
96 Hofman et al. (2003, pp. 20–1): The delivery of some services has improved or remained the same since the RGA 1999, notably education and health services. In other policy areas, however, there has been a fair amount of friction in the first years of decentralization. Among these conflicts environmental issues feature prominently.
97 Kleden (2004).
98 Litvack et al. (1998).
environmental management in Indonesia should be decentralized, and if so, how?