ENVIRONMENTAL MANAGEMENT IN INDONESIA?
5.3. Legal-institutional Design for Multilevel Environmental Management
The preceding analysis brings us to propose some suggestions of change to the EMA 1997. In particular on the basis of legal comparison (Sections 2.1–2.3) and the characteristics of Indonesia’s current legal-institutional framework for environmental law (Sections 4.3–4.4), I have selected the following main topics:
102 Seidman and Seidman (1999, pp. 261–2).
Table 7.1 EMA 1997
Subject Elaboration
1. Decentralization modalities for Delete Article 12 (1) sub a EMA Districts and Municipalities 1997, for de-concentration is at
odds with the RGA 1999.
2. General rules Introduce a new chapter on
general rules.
3. Simplify enforcement mechanisms Rewrite Articles 25 and 27 EMA 1997 because they complicate the enforcement of
environmental law.
4. (Integrated/coordinated) decision- A new EMA is to specify making procedures decision-making procedures for
licensing, supervision, and enforcement.
5. Allocation of authority for A new EMA is to be more environmental protection specific on the division of
responsibilities for environmental protection.
Explanation
(1) The RGA 1999 contains only two decentralization modalities, namely regional autonomy (Art. 7–12 EMA 1999) and co-governance (Art. 13).
A separate central government administration running parallel to the regional government administration, as was imposed by Law 5 of 1974, is not only in conflict with the RGA 1999 but is also not necessary. If the central government desires to keep a close eye on the performance of certain government tasks, it will suffice to assign these tasks on the basis of co-governance. In the Netherlands, for example, environmental protection is a task of co-governance of the municipal government.
(2) A system of general rules has some important advantages. First, it reduces the administrative burden of the Districts and Municipalities. Redundant licensing personnel can be deployed in the supervision and enforcement departments instead. Secondly, environmental decisions are taken by the central government which must be considered most capable in terms of legal-technical environmental knowledge. Thirdly, a system of general rules warrants the uniform application of environmental standards across the country. And most important, the application of general rules reduces the risks of lobbying, corruption, and collusion in the licensing process.
For this purpose, the Dutch system could serve as an example. The Dutch Wm contains a special chapter on general rules (8.2 Wm) which is placed directly after the chapter on licences (8.1 Wm), and there are several cross- references between these two chapters. For example, Article 8.1 (1), Chapter 8.1, stipulates that ‘[t]his prohibition [to set up, modify or operate an establishment] shall not apply to establishments included in a category designated by government regulation pursuant to Article 8.40 (1)’. Besides this, Article 8.40 (1), Chapter 8.2, contains the following provision: ‘[r]ules which are needed to protect the environment may be laid down by govern- ment regulation with respect to categories of establishments designated therein’. The remaining provisions of Chapter 8.2 deal with specific elements that must be taken into account when establishing general rules,103the obligation to give notice of the creation or modification of an establishment to which general rules apply,104and the competence of the provincial and municipal governments to lay down additional require- ments.105For special categories of establishments, the Wm provides for a combination of environmental licence and general rules.106 In such instances, general rules only partly replace the environmental licence.
103 Article 8.40 (2) Wm.
104 Article 8.41 Wm.
105 Article 8.42 Wm.
106 Articles 8.44 to 8.46 Wm.
(3) On the basis of Articles 25 and 27 EMA 1999 in principle it is not the licensing authority, that is, the district or municipal government, that is responsible for supervision and enforcement, because either the Governor is the competent authority to apply administrative coercion (Art. 25 EMA 1997), or the Governor addresses a proposal to the licensing authority to revoke the business licence in case of violations of environmental law. Articles 25 and 27 EMA can be rewritten so as to assign in general supervision and enforcement tasks to the District Head or Mayor.107In order to fulfil these responsibilities, the district and municipal governments can be assisted by technical institutes, for which a provision is made in Article 65 RGA 1999. Besides this, a new EMA is to contain provisions on second-line supervision and enforce- ment by higher levels of government, which can step in whenever the district or municipal government fails to perform its supervising or enforcing duties. In addition, special environmental law can assign licensing and enforcing powers to other government authorities depending on the scale, complexity, and polluting effects of the pollut- ing activity.
(4) The EMA 1997 is almost free of specific obligations to give content to integrated environmental management. If the revised EMA is to maintain
‘integration’ as a principal goal, then this EMA shall specify the proce- dures for licensing, supervision, and enforcement. Minimal procedural elements to be addressed are: which parties are to be involved at which stage of the decision-making process, consultation processes, time frames, reciprocal integration and coordination mechanisms between licences as well as between enforcement decisions, consultation processes, and legal protection. These are vital issues that cannot be dele- gated to implementing regulations. In the Dutch Wm, for example, it is laid down that for issuing the Wm licence the ‘elaborate public prepara- tion procedure’ of the GALA is imperative.
(5) On the whole, the EMA 1997 does not really specify ‘who is responsible for what’, which negatively affects its implementation. For example, Article 11 EMA 1997 stipulates that integrated environmental manage- ment is to be implemented by an ‘institution’ (perangkat kelembagaan) coordinated by the Minister for the Environment. This crucial item is best dealt with in precise words by the EMA itself. In addition, the EMA’s official elucidation is to give clear directions for its interpretation and application. This may help to avoid the promulgation of implement- ing regulations that conflict with the EMA or sector legislation, or with
107 Cf. Article 18.2 Wm.
one another. If the Indonesian government strives for the nationwide application of environmental (minimum) standards (Arts. 8–11 and 14–15 EMA 1997), then those standards are to be issued (and made public). Article 70 RGA 1999 warrants that regional by-laws and deci- sions conform to national law and regulations.
The above-mentioned changes to the EMA 1997 cannot be considered in isola- tion from the RGA 1999, for the parameters for decentralized environmental management are first set by the general legal-institutional framework for regional government.
Explanation
(1) It is recommended that regional administrations are accountable not only
Table 7.2 RGA 1999
Subject Elaboration
1. Re-establish a hierarchical The ‘no-hierarchy clause’ of organization between State, Article 4 (2) RGA 1999 should Province, and District/Municipality be rephrased so as to facilitate
upward accountability.
2. Strengthen the role of the Provinces Rewrite Article 9 (2) RGA 1999.
3. Strengthen the role of the RAAC Reinforce current advisory functions of the RAAC by empowering it to start
proceedings to take over district or municipal tasks by the Province (see 2) as well as to lift or merge a District or
Municipality (Art. 6 RGA 1999), and to advise on the conditions for asymmetric decentralization (see 5).
4. Allow sector legislation, e.g. the Specify the conditions under EMA, to deviate from the general which sector legislation may framework for regional government deviate from the RGA.
5. Asymmetric decentralization Assign differentiated authority to (groups of) Districts and Municipalities on the basis of regional management capacity.
to democratically elected representative councils,108but also to higher government levels. This is quite common in a decentralized unitary state.
Naturally, the specific conditions under which the provincial govern- ments and the central government are allowed to interfere, preventive as well as repressive, in the governance autonomy of the Districts and Municipalities should be limited and spelled out in the RGA. Regarding this, Law 5 of 1974 had given too much discretion to the central govern- ment. Additional requirements for specific policy areas can be laid down in particular administrative laws, such as the Environmental Management Act. The courts should be enabled to test the use of super- visory powers by higher government levels.
(2) This builds on what is stated above. The RGA 1999 and the GR 25/2000 together have granted a weak position to the Provinces as intermediate governments. Only when a District or Municipality willingly surrenders its government responsibilities, is the Province allowed to take over (Art.
9 (2) RGA 1999). The law should however provide for a mechanism that enables the Province to take the initiative when necessary. Obviously that same law must define the conditions and process for such a take-over, which of course must be considered an extraordinary event.
(3) The RAAC (Regional Autonomy Advisory Council) is to perform a crucial role in assessing the management capacity of the regional govern- ments. On the basis of these assessments, policies can be developed to gradually upload regional autonomy. See ‘asymmetric decentralization’, below.
(4) For the sake of environmental protection it is justified that an EMA contains provisions that deviate from the general framework. This can be illustrated by the Dutch Wm, which on various points ‘differs’ – for example, deviates, complements, refines – from the GALA and the Municipality Act. The legal facility for these ‘differences’ is included in the relevant laws.
(5) Asymmetric decentralization can also be pursued as a transitional phase, see ‘RAAC’ above. I quote from a 2001 World Bank report that
‘[a]ssigning differentiated authority to regional governments based on political commitment, technical capacity, revenues, population, and constituency strength can alleviate the pressure of having to implement a country-wide uniform decentralization program’.109 This may prove difficult to realize, however, for in an earlier report the World Bank asserts that ‘asymmetrical decentralization may raise a fundamental
108 Articles 18 (1) sub f, 19 (1), 20, 21, 31 (2) 32 (3), and 46 (3) RGA 1999.
109 The World Bank (2001, p. 115).
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