Nicole Niessen
4. DECENTRALIZATION OF ENVIRONMENTAL MANAGEMENT IN INDONESIA
4.3. Discord between the EMA 1997 and the RGA 1999
Both the EMA 1997 and the RGA 1999 contain provisions regarding the decentralization of environmental management. Related to this topic, the key provisions of the EMA 1997 are the following:
Article 12
To create integration and harmony in the implementation of national policy regard- ing environmental management, the Government-based legislation can:
Delegate certain environmental authority to central government offices in the regions;
Give a role to regional government to assist the central government in the imple- mentation of environmental management in the regions.
Further stipulations as provided for in (1) above are regulated by laws and regula- tions.
78 Waste is a very broad category. For some waste categories, the Minister for the Environment has delegated licensing authority to the Districts and Municipalities.
More about this in Section 4d on the prospects for an integrated or coordinated busi- ness-environmental licence.
79 Niessen (2003, pp. 70–1).
80 Ibid., p. 79.
Article 13
In the scheme of the implementation of environmental management, the Government can transfer part of its affairs to regional government to become part of its general affairs.
The transfer of affairs as provided for (1) above is determined by Government Regulation.
Article 12 (1) refers to de-concentration (a) and co-governance (b), whereas Article 13 refers to regional autonomy in the field of environmental manage- ment. This decentralization scheme is tailored to the provisions of Law 5 of 1974. It is also reflected in Articles 18 and 20 EMA 1997 regarding licensing authorities, and Articles 25 and 27 EMA 1997 regarding supervision and enforcement.
Summarizing, the EMA 1997 presumes that, in principle, environmental management is a task of the central government unless it transfers specific tasks to the regional governments. The RGA 1999, by contrast, takes a completely opposite point of departure. It stipulates that, in principle, all government tasks are to be performed by the regional governments, unless expressly excepted by law. Regarding this, Articles 7, 10, and 11 RGA 1999 are crucial.
Article 7 (1)
The Regional Authority covers the authority in all areas of government, except authority in the field of foreign policy, defense and security, judiciary, monetary and fiscal matters, religious matters, as well as authority in other fields.
Article 10 (1)
The Region shall be authorized to manage the national resources available in its territory and shall be responsible to maintain the environmental conservation in accordance with the legislative regulation.
Article 11 (1)
The authority of the District Region and the Municipal Region shall cover all administrative authority other than the authority excepted in Article 7 [quoted above] and the authority regulated in Article 9 [i.e. the authority of the Provinces as Autonomous Regions and Administrative Areas].
These provisions clearly refer to a shift of government authority – not only but also in environmental matters – from the centre to the regions, notably the Districts and the Municipalities. Government Regulation 25 of 2000 (abbr. GR 25/2000) gives an exhaustive enumeration of the tasks of the central government and the provincial government in those policy areas that have not been exempted in Article 7 of the RGA 1999. Regarding environmental management, the Articles 2 point 18 and 3 point 16 are relevant. Article 2 (3) point 18 lists the tasks of the central government in the field of environmental protection:
Establishing guidelines for the control of natural resources and preservation of the environment.
Regulating environmental management in the use of seabed resources beyond the 12-mile limit.
Evaluating the analysis concerning the environmental impacts of activities that could cause potential negative impacts on the public in general and/or that involve defense and security, which include more than one Province, activities located in conflict areas with other Countries, in the ocean below the 12-mile limit and area located at border crossings.
Establishing environmental quality standards and establishing guidelines on envi- ronmental pollution.
Establishing guidelines for the conservation of natural resources.
Article 3 (5) point 16 lists the tasks of the provincial government in the field of envi- ronmental protection:
Controlling environmental areas within Districts/Municipalities
Regulating the management of the environment in the use of ocean resources from 4-miles up to the 12-miles seabed.
Regulating the safety and preservation of water resources in Districts/
Municipalities.
Evaluating the analysis of environmental impacts (AMDAL) of activities that would cause potential negative impacts to the public in areas located in more than one District/Municipality.
Supervising the conservation of the environment in Districts/Municipalities.
Establishing environmental quality standards based on the national environmental standards.
The preamble explains that no such enumeration is necessary to determine the competences of the district and municipal governments since for them all tasks remain that are not mentioned in the GR 25/2000. This of course conflicts with Articles 12 and 13 of the EMA 1997.
The new decentralization laws may give the impression that regional autonomy of the Districts and Municipalities is almost sacrosanct. The RGA 1999 and the GR 25/2000 nevertheless provide for several checks and balances to prevent or correct a misallocation of functions to the Districts and Municipalities. The practicality of these provisions is questionable, however.
On the basis of Article 9 (2) RGA 1999 and Article 4 GR 25/2000 the district and municipal governments can voluntarily surrender their authority to the provincial government when they prove incompetent to fulfil their autonomous tasks. According to Article 115 RGA 1999 a Regional Autonomy Advisory Council (RAAC) advises the President on the creation, merger, and discontinuance of a District or Municipality, the financial relations between centre and regions, and the ability of Districts and Municipalities to perform their autonomous tasks. To this end, the RAAC conducts research and it
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.