Strengths and Limitations of The Indonesian Constitutional Court’s “6 Basic Principles” in Resolving Water Conflicts

Abstract

Many parts of Indonesia are already experiencing water stress and the condition is expected to become worse by 2045, when, according to the World Bank, 67% of Indonesia’s GDP will be produced in areas with high water stress. Conflict over water resources has been reported between water users and uses, such as between agriculture and drinking water, between agricultureand fisheries, and between farmers and industries. In 2015, responding to the petition to curtail private sector control over water resources, the Constitutional Court invalidated Water Law 7/2004 and introduced the 6 basic principles, that have been used as normative guidance for implementing the regulation on water resources and for resolving future water conflicts. However, the principles are ambiguous in many ways. This paper will critically examine the principles and then outline the difficulties in its implementation. The methodology employed is normative-analytical; incorporating analytical frameworks from water law and governance into constitutional adjudication. First the paper clarifies some conceptual frameworks related to water conflict and how the principles have been interpreted by regulators. The paper then explains the general categories of water conflict and where those principles would, or would not, fit. The paper then continues with a critique of the principles, in terms of their (i) unclearscope, (ii) conflation between users and uses, (iii) neglect of footprint and (iv) the implications for water reallocation. This paper finds that one of the strengths of the principles is that they provides a basic normative guidance for solving conflict in water allocation, the protection of human rights and the environment. However, these benefits come with some limitations: neglect of efficiency over perceived equity and potential restriction of reallocation of water among different users. The principles are also difficult to implement where there is conflict over water quality or spatial development. As such, the paper recommends that the Constitutional Courts revise and expand the principles in future cases using teleological approach and that in terms of implementation, the 6 basic principles should also be interpreted teleologically.