Another exciting transparency tool from the US: interactive disclosure of yearly clean water act violations. According to the EPA's Press Release:

The new web page provides interactive information from EPA’s 2008 Annual Noncompliance Report, which pertains to about 40,000 permitted Clean Water Act dischargers across the country. The report lists state-by-state summary data of violations and enforcement responses taken by the states for smaller facilities. The new web page also makes it easy to compare states by compliance rates and enforcement actions taken and provides access to updated State Review Framework (SRF) reports. 

Disclosure is a way of increasing the compliance level of a rule. Water quality may have implications to land values and effluent quality reflects a company's efficiency level. With more stakeholders scrutinizing your company, it is expected that you would be more careful about your waste level. Otherwise, either investors will take action to remove the managers, or, the local citizen will take action for their diminishing property value.

Have a look at the site, here.

Happy Freedom of Information Law Day!!!

Today, Indonesia embraces the new era of transparency by the entry into force of the FoI Law. This post will discuss exiting web tools used to enforce FoI regime around the world. The internet can be used to make transparency system more transparent! Here is how:

1. United Kingdom -- Whatdotheyknow.com 

Whatdotheyknow is quite an ingenious web portal, designed to make transparency request transparent. This way, we will all know which government branches are lagging behind in processing their FoI. I've tried this system before and it works just perfectly. Have a look at my FoI request here.

2. United States -- Thisweknow.org

Thisweknow.org acts as a database provider of the data in the US Government. For example, I want to know which factory in Nevada releases mercury. And here's the search result.

3. United States -- Openmeetings.org

The US has several kinds of transparency laws. They have the Freedom of Information Act (as old as 1966) and they also have "Sunshine Laws". What are the differences? Well, the sunshine laws obligate public meetings for public officials. The law basically states that meetings for public services should not be held in secrecy, it should be held 'in the sunlight'. Sunlight is the best disinfectant, Justice Brandeis said, remember?

So, openmeetings.org provides the software to keep record of those meetings. Have a look.

In the next posts, I will give you and update of another tools. Stay tune!

Let's not forget that tomorrow, Law No. 14 Year 2008 on the Openness of Public Information (FoI Law) will be in full force. What it means is that you can now request any information to government agencies, NGOs and State Owned Enterprises.

To get a glimpse on how the law looks like, read my article here. Bear in mind that although you are in the private sector, there is still a risk that you might be covered by the FoI, if:

1. Your business is defined as a 'public body' under the Freedom of Information Law
2. You are engaged in a contract with the government
3. You submit compliance report or any other data to government agencies (and some one else has an interest on that)

Do they overlap?
What is the 'comparative advantage' of each concept over another?
What? IWRM is essentially about governance?
Ah, you mean the human right to water is essentially about governance?

What is 'not' governance?
What 'is' governance?

What? Did you just asked, if these concepts actually works?
Well my friend, theories always work in theory, but seldom in practice.
What really matter is not whether it works or not, but whether its coherent :)

1. Your business is defined as a 'public body' under the Freedom of Information Law
2. You are engaged in a contract with the government
3. You submit compliance report or any other data to government agencies (and some one else has an interest on that)

I discussed this in detail, in my recent op-ed.

Business implications of the freedom of information law

Mohamad Mova Al Afghani, Dundee, UK | Mon, 04/26/2010 9:02 AM | Opinion

A | A | A |

The entry into force of the Freedom of Information (FoI) Law in Indonesia will have significant impact not only on government operation but also business. Business could either benefit, or in another circumstances, be harmed, by information disclosure through the FoI regime.

FoI’s initial intention is in creating transparency of government. The reasoning was mainly political, that is, that transparency is one of the central prerequisits of democracy. Recent findings in the economics of information added the justifications for transparency.

The transparency framework may help reduce the risk of market failure by lowering information asymmetry between market actors. Development in the economics of corruption also strengthened the arguments for transparency.

Transparency, the research suggests, not only increases the likelihood of corruption detection but also the cost for the perpetrators to conceal their corruption, thereby deterring them from corrupt behavior.

Business can benefit from FoI. Information behind allegedly unfair tenders, project opportunities or government policies that otherwise cannot be obtained unless a person has a close connection to government officials can now be retrieved through formal procedures.

Thus, FoI, to a certain extent, can contribute to the creation of a level playing field between businesses, which is crucial for efficient market competition to exist.

However, FoI could also mean that businesses are more exposed than before.

Government was the central theme for every FoI regime around the world. But today, this is not entirely true. The spread of the “new public management ideology” gave way to public-private partnership, private finance initiative, outsourcing and other arrangements involving the participation of the private sector in public services. Thus, if in the past it is the state and its government who holds real power — and therefore must be held accountable — today, in many respects, it is the private sector that does.

Hence, the focus of FoI around the world is shifting, not only scrutinizing the state and its government as it were in the past, but also the private sector.

There are three ways in which business information can be revealed through the Indonesian FoI. First, is through the definition of the “public body”, second is through submission to government agencies and third, through a contractual relation with the government.

In other countries, the FoI holds the private sector accountable through several legislative techniques. One of the techniques refrain from defining “public bodies” (entities in which the FoI regime would be applicable) in the FoI Act, but provide it through a list in a secondary or tertiary legislation instead. Corporations which deal with the government in public services could be included in the list.

With this technique, it is much easier to modify the list according to the needs. For example, if tomorrow a water company is privatized, the government can include the company into the list for a period of time as long as they engage in public services.

Our FoI does not follow such scheme but chooses to define “public bodies” instead. Under the FoI law “public bodies” are defined, as either a government entity or other entities in which its primary task is related to the management of the state and is funded through the state or regional budgets or, an NGO receiving full or partial amounts of the state budget, public contribution or foreign funds. It is clear that state owned enterprises is a public body for the purpose of the FoI.

What is not really clear is the definition of NGOs under the last category. Since there is no requirement that restricts the understanding of an NGO to a non-profit entity, business entities can also be defined as “non-governmental”.

Other than being defined as a “public body” as discussed above, there are two other ways for a business to fall under an FoI regime. The second is through government contracts.

The FoI law mandates that any contracts between the government and a third party should be published. “Contracts with third parties” is a broad formulation.

So far, there is no clarity if all details of a contract including its annexes should also be published, although one could argue that the exemption clauses could apply.

Third is through the submission of reports to government agencies. Businesses regularly submit compliance reports. As soon as the data is transferred to the government, the information will fall under the FoI regime.

The government agents will be obliged to disclose any information after a request is made, unless the exemption clause under the FoI law applies.

Data with such environmental information can generally be disclosed, while data related to company financials submitted to capital market supervisory agencies or the tax office can be exempted by other legislation.

It is important to note however, that this exemption is not absolute. This data can still be disclosed if there is public interest.

The protection given to businesses under the FoI law is not clear, so far. In other countries, there is generally, an exemption clause for “commercial information”.

This type of clause protects all sorts of commercial interests which may be harmed through FoI disclosure.

Some FoI legislations around the world also impose an obligation on public bodies to consult third parties that are affected before a disclosure is made, and create a legal standing for them in disclosure cases before information commissions or the courts.

In common law jurisdictions, normally there is a clause in its FoIs, exempting information provided “in confidence” from disclosure. This is the sort of information submitted to public bodies on a trust-basis, such as those protecting the relation between a lawyer and its clients or a doctor with its patient, or a company with a regulator. Our FoI does not have these kinds of exemptions.

Our FoI law does contain a clause which protects information related to intellectual property rights and information in which disclosure would undermine “fair business competition”.

For the business society however, this clause can be vague. Most intellectual property rights (IPR) such as patents and copyrights follow transparency principles. Only a minority of the IPRs such as trade secrets are designed to thrive under an opaque environment.

The prevention of disclosure for the purpose of protecting “fair business competition” can be founded in theory, but may be difficult in practice. It is difficult to be practiced because it requires public bodies and information commissions to evaluate if a certain disclosure will distort competition.

Such case may require the determination of market segments where such information is the commodity. I am not confident that public bodies, information commissions and the courts are up to the task.

Due to these vague clauses under the FoI law, the guidelines and implementing regulation by which these clauses are to be interpreted and applied, must be drafted openly with a participatory approach, taking into account the views of the civil society and the business community altogether.


The writer is the founder of the Center for Law Information.

The summary of the UN expert consultation on the human right aspect of PSP is available in the FES website. The questions discussed can be seen here. Meanwhile, the number of feedback to the Independent Expert on the consultation continues to grow. This is the list of feedback.

Among the new feedback, Germany's view is particularly interesting.

Saya kira solusinya kita perbaiki moral melalui agama seluruh pimpinan negara ini. Sekarang ini kan orang tidak takut lagi sama Tuhan. Mereka tetap Sholat lima waktu tetapi korupsinya jalan terus. Kalau mereka ketemu daging babi muntah muntah, tetapi aspal dan pasir masuk perut.

Have a look at this interesting clip:



Same old question.

Let me put it another way.
1. Is education a commodity? You'd probably say no. But hey, why do we need to pay for piano and language courses? They should be freely provided by the state, no?

2. Is health service a commodity? If no, then why do you have to pay your health insurance?

3. Is water a commodity? If no, then why do we need to pay for coca cola, starbucks and all those beverages in Tesco's shelves?

If no water can be commodified, every bartender in this earth will lose their jobs. No one can open a Cafe' because all the drinks should be for free.

Now you probably said: no, because they are "processed". Those who process them added the value of water, and is entitled for their labor. But drinking water should be free.

Now wait a minute here. Aren't drinking water "processed" too? If you ask me to get you a bucket of water from uphill, aren't you supposed to pay me for my work? Those plumbing and water treatment plants need funds too, no? The tap's going have to come from somewhere.

But I agree that in some instances water should be provided for free by the state. In times of emergencies, natural disaster or for people in prison, the state should provide them with adequate and safe water. Also for those who can't afford to pay it. Subsidy measures should be available, or payment in arrears facility, or solidarity tariffs.

But we cannot say that water entirely cannot be commodified. Humans are not commodities, that I fully agree, both morally and legally. Sex should not be a commodity too, at least, morally. But some people think it differently. As such there are differences of opinion on whether the commodification of sex should be prohibited by the state.

That human is not a commodity is universal. But whether water is a commodity or not is highly contextual. It depends on what sort of water and in which situation.

The Indonesian Attorney General Office has started to investigate the allegation of corruption in the water sector. The amount money involved is 1 billion IDR. The project, which is fully funded by Makassar's regional budget is supposed to improve Makassar city's water supply. Read more (in Bahasa)

There is an interesting op-ed in today's Jakarta Post about Water Resources. The author argues:

There are three main reasons for the emergence of shadow users and the disappearance of water from the water table.

1. First, on face value, unlike countries that face water scarcity, Indonesia has abundant and easily accessible water resources.
2. Second, a small handful of non-state actors and activist organizations are not pluralistic by definition. These actors are politically driven, weak and sparse. Promoting a consensus based pluralistic dialogue and discourse is not their main agenda.
3. Third, both at the national and local levels, there are gaps in linking public policy-making with regulatory frameworks.

Quick blogging. The controversial blasphemy law verdict by the Indonesian Constitutional Court has been published. You can download it here.

What do you think about the verdict?

Have your say.





 

For those of you interested in Integrated Water Resources Management (IWRM), have a look at a 2007 sylabus for the course at Florida International University here. There are some links to downloadable materials, papers and lecture notes too.

Big Hat Tip to the author of our brotherly blog who send me the link to this free ebook from the FAO. The title of the book is Law for water management: a guide to concepts and effective approaches. If you are a water law aficionado, download freely here (and save it to your hard drive, before the link is broken!)

It's been decided a few hours ago. The Constitutional Court ruled with one concurring opinion (Harjono) and one dissenting opinion (Maria) that the blasphemy law is here to stay. I do not think that this ruling with outlaw the possibility to submit another judicial review in the future. In the mean time, it might be worth to have a look at the Court's Decision (its not yet online -- will provide a link when it is) and Justice Maria's Dissenting Opinion.

See my recent working paper on the constitutionality of the Indonesian Blasphemy Law at the SSRN.

See related news at Detik (in Bahasa).

We've been talking about FoI Law for quite some time in this blog, but I have yet to provide you with a link to the Indonesian FoI. Click here to see Law 14 Year 2008 on the Openness of Public Information (yep, that's the long name).

Right2info.org provide a compilation of links to world's FoIs. Have a look at it here.

Recent developments in the right to water saga points out the unlikelihood of the human right system to pinpoint the exact amount of litres as the 'minimum core' on the right to water. Instead, the system leans towards 'reasonableness' approach. According to the Water Law Blog:

Thus, the ex ante standard setting required by the materialisation of a determinate minimum core for human rights to water inevitably leads to the theoretical acceptance of exceptional situations where more water than actually required to cover basic human needs must be provided to a specific individual, BUT ALSO to situations where less water that actually required to cover basic human needs will be provided to a specific individual.

Quick blogging.

Click here for the links to publications by UN Bodies on Water Quality issues.

To give you an update, this is the list of speakers for the upcoming EPSCA 10:

1. Dr. Evita Legowo, Director General Oil and Gas, ESDM (tent.)
2. Trijana Kartoatmodjo, Deputy Operations, BPMIGAS
3. Benny Lubiantara, Fiscal Policy Analyst, OPEC (as Advisor)
4. Tariq Shafiq, Founding Executive, Iraq National Oil Company (also author of new Iraq oil law, Forum Chairman)
5. Ittiporn Boonpracong, Deputy Director-General, Department of Treaties and Legal Affairs (Malaysia-Thailand Joint Authority)
6. Faiz Shahab, Commissioner, PT Prime Petroservices
7. Joseph Amudi Tobing, Senior Legal Counsel, Hess Limited
8. Peter Godfrey, Vice President (Commercial), Arrow Energy International (on CBM development with PT Medco)

According to the Jakarta Post:

Currently, it is widely believed that many water companies are linked to powerful politicians, making the awarding of contracts, tariffs and other management aspects non-transparent and ineffective. Ideally, politicians that govern should act on the professional advice of the water managers and not the other way around. Another area of water governance that needs to be intensified is the war against corruption. In the water sector, there should also be an all-out war on corruption at all levels of governance, in both the public and private sectors. Government should make all contracts in the water sector awarded through open tender with public consultation to ensure professionalism, fairness, transparency, accountability and good governance. Equally, all contracts and other relevant documents drawn up between the government and private companies should not be "classified" but instead be public documents available to the public for discussion, review and improvement. Another area to ensure better governance is for the government to engage and actively involved all stakeholders in the water sector, especially civil society and NGOs. Finally, the Federal Government should reconsider its plans to centralize the water sector by taking it over from State Governments. This is because, centralization would be contradictory towards involvement of all stakeholders and also pose problems to many states that had already privatized the water sector. Finally, governance of the water sector should be based on Integrated Water Resources Management which is the logical way forward in ensuring sustainable development. 

To achieve the above objective, the government should make all contracts in the water sector awarded through open tender with public consultation. This would ensure professionalism, fairness, transparency, accountability and good governance. Equally, all contracts and other relevant documents drawn up between the government and private companies should not be “classified” but instead be public documents available to the public for discussion, review and improvement.

When a Jakarta citizen asks to what rights are they entitled as a water customer, there’s not much that the 1992 and 1993 bylaws can answer because the 1998 privatization has changed the landscape of accountability from Jakarta’s local government and PAM Jaya to its concessionaires.

Some of the answers could be provided in the concession contracts. Unfortunately, the concession contracts are said to contain a confidentiality clause and therefore are never to be found in the public domain.

Right to water skeptics normally pose this typical question: Why the right to water instead of governance?

Here's a short answer: you can't go to the court asking for good governance.

Illustration:

If you are disconnected from the services, you can't say to the judge:

"For the sake of good governance, please, reconnect me to the network."

compare with this statement:

"There is a human right to water in the constitution, I should, at least be permitted to pay in arrears, the disconnection is illegal."
 
Put it simply, the right to water creates rights and obligations. It can even create obligation for a good water governance. Remember, governance does not stand by itself. One of the indicator is the rule of law.

65. It is not known how many ad hoc funds there were, nor responses for one off payments, though there is reference to a number within documentation provided to the SFO by Innospec. These additional payments were variously referred to as the “Lead Defense”4 fund; “Lim WS account”5; “compensation fund”6; “extraordinary costs”7; “cumulative costs”8; “special funds”9; “promotion fund”10 or “exceptional promotional work”11; “special bonus”12; “cranes” 13 and the “Rachmat Sudibyo fund”.

 66. This fund was conceived and largely operated during a period predating the Indictment. In the first instance between 2000 until his departure in August 2002, a recipient of ad hoc bribes was Rachmat Sudibyo (“Sudibyo”). The “Rachmat Sudibyo Fund” was a corrupt vehicle to pay Sudibyo, the Indonesian Director General of Oil and Gas at the Ministry of Energy and Mineral Resources. He was in post until August 2002, whereupon he was appointed Chairman of BPMigas – the newly established oil and gas authority.

69. The Special Committee retained KPMG to examine all payments made to PTSI. KPMG found two large payments, one in 2001 ($265,000) and one on 8 January 2002 ($295,150) with invoices stating that they were: “For payment all Pertamina/Migas & Lemigas Personnel (sic) travel, hotel, daily expenses overseas during the year 2001 spent in promotion of OCTEL’s products, as earlier agreed.”.

76. Innospec’s agents therefore made corrupt payments to public officials at Pertamina which were not dependent upon or related to specific orders for TEL being made. Corrupt payments were made as general sweeteners “to clear the air”, through various mechanisms including the agents’ general commission, to “buy of [sic] some Pertamina people”, to maintain or increase market share.

77. Furthermore, Innospec’s agents also requested further funds in order to make corrupt payments to a rival agent – Wisnu – who had apparently been tasked with marketing Chinese-sourced TEL to Pertamina.

83. In 2003 and 2004, Innospec’s agent, Sebastian, targeted Suroso, who became the Refinery Director of Pertamina. It is believed that this position was second only to the President or CEO of Pertamina. In effect Suroso had authority, at least until 2005, to sign and agree purchase orders on behalf of Pertamina. Even after the creation of MIGAS, individual refineries and Pertamina more generally had certain autonomy to enter into contracts with particular suppliers.