THE INDONESIAN EXPERIENCE SO FAR
2.1. Institutional Arrangements
The idea of an integrated and holistic approach to environmental management in Indonesia is reflected in many necessary institutional arrangements.
Environmental management cannot be assigned to a single ministry only, but has to become the responsibility of all ministries and non-departmental state agencies. The position of the Ministry of the Environment in Indonesia today is that of a ministry without department. Initially the functions of the Ministry of the Environment were mainly to coordinate the activities of other ministries and governmental agencies in environmental management, and to issue envi-
ronmental quality standards and guidelines. On the other hand, the other ministries, usually referred to as sector ministries, for example, the Ministry of Forestry, the Ministry of Mining and Energy, the Ministry of Industry and Trade, and the Ministry of Transmigration as well as other governmental agen- cies, such as the National Atomic Agency, and the provincial governments hold administrative powers or regulatory powers. They have the responsibility to require every activity under their mandates or jurisdictions to carry out environmental management. They hold the power to enforce administrative environmental law and its own sector laws against any activity or any body in order to prevent environmental degradation and certainly can undertake clean- up activities or restore the environment when environmental disaster occurs.
Under this kind of institutional pattern, the Ministry of the Environment could be viewed as having been successful in encouraging the rise of environmental awareness and public discourses in the 1980s as environmental issues have often been discussed in either academic fora or mass media since that decade.
The public, however, later found there to be a large gap between their own environmental awareness on the one hand and the environmental performance of the business community and of the sector ministries or other governmental agencies on the other hand. The public and environmentalists in particular realize that many environmental cases are not adequately resolved and envi- ronmental regulations are not enforced against perpetrators by sector ministries or provincial governments. One example where sector ministries and provincial governments have not enforced administrative environmental law adequately, concerns the procedure of environmental impact assessment (EIA). Many activities that are subject to an EIA procedure have been carried out although their EIA documents have not yet been approved by the EIA Commission.
Most environmental scholars and officials at the Ministry of the Environment regard the existing institutional pattern in Indonesia as being a major source of the weaknesses of environmental management. Therefore, they would like to see a Ministry of the Environment with strong powers in administrative environmental law, since they believe that only a Ministry with a strong environmental mandate would be likely to enforce environmental regulations consistently. This can be seen in the promulgation of Government Regulation No. 20 of 1990 concerning water pollution, which was initiated and prepared by the office of the Ministry of the Environment. This regulation provides the Ministry of the Environment with the power to issue a licence to discharge liquid water into the soil. Under Government Regulation No. 82 of 2001 concerning Water Quality and Pollution Control which replaces Government Regulation No. 20 of 1990, the power to issue the licence to discharge liquid waste to water and land has been transferred to district or city governments in order to make it consistent with the idea of regional autonomy
under Act No. 22 of 1999 concerning Regional Autonomy.7Another example of efforts by the Minister of the Environment to gain regulatory power is the establishment of a licence for dumping under Article 20 of the EMA of 1997.
However, since the Ministry of the Environment is a ministry without department, the Ministry of the Environment faces institutional limits. It cannot establish de-concentrated offices at the provincial and local level;
moreover it lacks human resources. In practice, it is not able to do monitoring or surveillance to make sure that an activity, such as dumping waste, is not taking place. The problem is that the Ministry is based in Jakarta while Indonesia is geographically such a large country. Thus, it is not realistic to expect the Ministry of the Environment to be the holder of administrative environmental enforcement power as long as its status is still that of a ministry without department. Therefore, there has been some consideration given to changing the status of the Ministry of the Environment from a state ministry to a ministry with department. This idea has been challenged, however, by the argument that a ministry of the environment with department would create ‘a super ministry’. It is feared that it would take over the power of most sectoral ministries. Hence, this idea meets some resistance.
Furthermore, environmentalists in the early 1990s demanded an institution with an environmental mandate and strong administrative powers. This culmi- nated in the establishment of BAPEDAL, an Environmental Impact Agency.
The idea of the establishment of BAPEDAL was actually inspired by the model of the USA Environmental Protection Agency. However, the high expectations that were held of BAPEDAL in the early years of its establish- ment turned to disappointment for many non-governmental environmentalists, since they found that BAPEDAL had very limited administrative law enforce- ment power. In fact, BAPEDAL only has the power to issue licences for the operation of hazardous waste treatment facilities, while industries generating hazardous wastes are still subject to the power of the Ministry of Industry and Trade, and transportation of hazardous wastes falls under the competency of the Ministry of Transportation. BAPEDAL only has power in the field that was previously not under the competency of any other ministry as introduced by Governmental Regulation No. 19 of 1994, and amended by Government Regulation No. 12 of 1995, in order to prevent environmental disasters caused by hazardous waste. In sum, the establishment of BAPEDAL has not basically changed the institutional competence in environmental management.
7 Act No. 22 of 1999 concerning Regional Autonomy has been replaced by Act No. 32 of 2004 concerning Regional Autonomy since November 2004. On the relation between environmental management and the decentralization act, see Chapter 7 of this volume.
However, under Presidential Decree No. 2 of 2002 BAPEDAL has been liqui- dated and integrated with the Minister of the Environment. Thus, under the present institutional arrangements, the Minister of the Environment still holds the power to coordinate but also has the power to issue licences in two fields:
licence to dump and licence to operate a hazardous waste facility.
2.2. Struggling for the Creation of an Integrated Environmental Law