4 Tema Besar Pengaturan Pelayanan Air di Jakarta

Dear All,

Sejak zaman Soeharto, Peraturan Daerah Air belum pernah dirubah, padahal pada tahun 1998 sektor swasta mulai beroperasi. Dengan demikian, sampai saat ini sektor swasta beroperasi tanpa aturan apapun dari Pemerintah Daerah. Terdapat juga wacana-wacana untuk mengakhiri kotrak konsesi. Namun demikian, yang paling penting bagi saya adalah agar kita menyusun tata kelola pengaturan air Jakarta pasca konsesi sembari mengatur konsesi yang ada sekarang ini. 

Dalam op-ed dibawah, saya mengemukakan 4 Tema Besar Pengaturan Pelayanan Air di Jakarta: 

1. Tata Kelola Yang Baik (Good Governance), 
2. Kepemilikan (Ownership), 
3. Model Regulasi dan 
4. Tingkat Pelayanan dan Hak Hak Pelanggan. 

Teknisnya, 4 tema besar ini bisa dibagi kedalam 4 Peraturan Daerah, atau juga bisa disatukan kedalam 2 (dua) Peraturan Daerah. Idealnya, kita semua yang merancang Naskah Akademis dan Draft Peraturannya dan menjaring aspirasi dan partisipasi publik. Isu tentang kepemilikan tentunya akan sangat menarik perhatian, lebih dari tiga tema lainnya. Insya Allah saya akan membuat paper yang lebih mendetail tentang 4 tema besar ini dan beberapa follow-up op-ed. Untuk saat ini ada beberapa paper saya yang berhubungan yang bisa diunduh di: Papers/working papers.

Saya bisa mempresentasikan kepada teman-teman tentang ide-ide diatas, dan setelah kita kritisi bersama dan dimatangkan, baiknya kita minta audiensi dengan DPRD DKI Jakarta.  



If there is one word that could describe water services in Jakarta, anachronistic regulation might be the most appropriate. 

Jakarta's water services are still governed by two early-1990s regional bylaws that contain not a single clause on private sector participation or consumer rights. After two concession contracts were awarded to the private sector in 1997 — both to Suharto cronies — the state seemed retreat from governing water services. 

Water service is a natural monopoly, which means that there is probably only space for one or two sellers in each city. Customers are at the company's mercy, forced to take whatever quality and price they are offered. 

Many blame it on privatization — and they might be correct, at least in part. However, even in a country such as Britain, where water companies are fully privatized, water services are regulated. In Britain, there is a strong presence of the state through its regulatory body, the Water Services Regulation Authority (Ofwat). British legislation guarantee service levels and consumer rights in addition to prohibiting disconnection when users are unable to pay. 

In Jakarta, by contrast, although the public still owns the assets, the state's presence is hard to be seen. Local legislatures have enacted bylaws of all sorts — from parking rules to street lighting to building codes — ever since regional autonomy was introduced, but on water services Jakarta remains governed by the antiquated 1992 and 1993 bylaws. 

Why has the regulatory process stalled? Partially because of the complexity of the late-1990s concession contracts, which may constrain the state's power to regulate, but also partially because of public debate that focuses only on the question of ownership of water utilities: the public-versus-private debate. 

The concession contracts will terminate at some point, either abruptly through an international arbitration or because they simply reach their expiration in 2023. If the contracts are terminated through arbitration, one of the most important issues is whether the state has attempted to regulate the services. If the state has not made such an attempt — and if the companies have delivered what is required by the contract — then the blame for failure to provide water services, which currently reach 50-60 percent of the city's population, would not solely fall on them. Companies are there to make profit. It is the state's duty to shape their behavior by regulating them. 

The next problem is what sort of governance arrangements we will have for the environment after the current concession contracts end. The answer is that other than those two Suharto-era bylaws, we don't have any. The bylaws contain no guarantee on consumer rights and service levels, which, although lacking and defective, are somewhat guaranteed by the concession contracts. They are also very weak, because they allow water utilities to be politically captured. We should bear in mind that it is the 1992-1993 bylaws that enable the utilities to be auctioned off to the private sector without public consent and without public tendering. 

Therefore, a phased transition is the best way forward. The most appropriate thing to do is to create the blueprint for the future of Jakarta's water services regulation and at the same time regulate the present concession contracts. 

What are we going to regulate and where should we start? There are four big themes in regulating water services. 

First is the question of governance, which consists of three themes: transparency, participation and accountability. Transparency is enabled by publishing information in public domains and by publishing explanations behind regulatory decisions. Participation is enabled by opening channels to assess citizens' aspirations, by giving them venues to voice their concern and to exercise control on the most important regulatory issues. Accountability is enabled by obligating the utilities to report to the public and the local legislature. 

Second is the question of ownership. Here we need to determine whether water utilities should be publicly owned, and if so, what type of legal entities are appropriate for them. Utilities could be incorporated as an ordinary legal liability company with 100 percent share ownership or as a state-owned enterprise, regional-owned enterprise or even as a cooperative. Each form has different benefits and advantages. 

We should also discuss the extent to which private sector participation is permitted and under what conditions. The conditions could vary — we could say that a local referendum would be required for a large-scale contract or that legislative approval is necessary. 

Third is the question of regulatory model. Utilities could be regulated directly by the provincial government and be obligated to present their accountability reports to the legislature and the public. Authorities could then benchmark their performance against other utilities. This obligatory benchmarking exercise is known as the "Dutch Model" of water regulation. Alternatively, we could implement designs in which the utilities and the government operate at arm's length. This way they will have independence and isolation from political capture. An independent regulator is then installed to act as a "referee" who supervises, monitors and sanctions utilities or sets prices. This "Scottish Model" appears robust but the regulatory cost is high. 

Fourth is the question of service levels and customer rights, entailing quality, quantity and water pressures, in addition to guarantees on service disruptions or contamination, as well as discount tariffs for and protection for vulnerable groups. 

Each of these four big themes contains many details that Jakartans need to discuss. The most important thing, however, is to get these blueprints discussed from the bottom up. This is the public's water, so discussion should not be confined to local political elites. Let the public discuss key regulatory features of their water services. The local legislature should select a review committee and issue a green paper outlining their proposal. Later, the draft regional bylaws should be published and feedback sought. 

Please, no more elitist regulation. Let us not repeat past mistakes. Water services are very politically sensitive, and the public must be involved in the regulatory process from the beginning. If they are not, transparency will suffer, ultimately to the detriment of both the capital's water services and the nation's democracy. 

Mohamad Mova Al Afghani is a doctoral candidate at the Unesco Center for Water Law, Policy and Science in Britain.