The right to water is a human right that is absolute and non-derogable. It is recognized by the National Commission on Human Rights of the Republic of Indonesia (Komnas HAM RI) and the United Nations. In Indonesia, this right is guaranteed by the state under Art. 6 of Law No. 17 of 2019 on water resources (UU SDA). This regulation asserts that the right to water, at the very least, should ensure that residents’ day to day needs are adequately fulfilled – a sufficient amount of good quality water that is safe, sustainable and affordable should be provided.
Despite it already being regulated under UU SDA, issues regarding the access to water were still being faced by the residents of Sentul City, Bogor. On World Water Day, held on 22 March 2021, the residents of Sentul City filed a lawsuit against Perumdam Tirta Kahuripan Kabupaten Bogor (Perumdam) at the Bandung State Administrative Court (PTUN Bandung). The reason being that Perumdam had made it difficult for residents to access sanitary water, failed to connect their water supply systems, and refused to accept them as customers. “Refusing residents to be customers is an infringement of the law and violates residents’ right to water,” Alghiffari Aqsa, the Managing Partner of AMAR and one of the attorneys of the Committee of Sentul City Residents (KWSC), said.
The issue surrounding Sentul City residents’ right to water has been a topic of discussion for a long time. The Supply System for Drinking Water (SPAM) in the Sentul City residential area was previously privately managed by PT Sentul City. The Indonesian Ombudsman had once mentioned the maladministration in the management of drinking water in Sentul City in a Final Report on Investigation Results (LAHP) of the Indonesian Ombudsman. They stated that in addition to making the prices of water more expensive for residents in the Sentul City area, the profits made by the company in water sales can be harmful for the state. This is since the price of water set by the government was much cheaper compared to the price imposed by PT Sentul City.
Moving onwards, in 2017, members of the KWSC filed a lawsuit against the Bogor Regent to PTUN Bandung in order to revoke PT Sentul City’s SPAM permit. The lawsuit was won up to the cassation level. This resulted in the Supreme Court (MA) Decision No. 463 K/TUN/2018 which strengthened the verdict of the first court decision. PT Sentul City submitted a notice of appeal in relation to the case, however, it was rejected by the MA. Following the decision of the MA, Bogor Regent Decree No. 693/309/Kpts/Per-UU/2019 was issued. It stipulated that the management of SPAM in Sentul City and the surrounding areas would solely become Perumdam’s responsibility.
Despite this, the residents’ right to water was still not fulfilled – their water supplies were not connected right away, and those who had yet to pay their Maintenance and Repair Fees (BPPL) to PT Sentul City were barred from becoming customers even though the fees were no longer to be imposed. According to MA Decision No. 3415 K/Pdt/2018, the collection of BPPL was a violation of the law. Furthermore, Perumdam had no authority to impose BPPL on residents. Rather, it was a civil matter between the residents and PT Sentul City.
Additionally, an agreement between PT Sentul City and Perumdam arose during the return process of the SPAM permit. It stipulated that Perumdam would help collect BPPL from residents on behalf of PT Sentul City. This violates Art. 56 of Government Regulation No. 122 Year 2015 concerning Water Supply System (PP 122/2015). The PP regulates the kind of agreements that can be made between SPAM providers and private companies which are limited to SPAM development investments, SPAM distribution unit investments, and SPAM operational technology investments. Perumdam had devised an agreement with substances that are outside of the scope regulated in PP 122/2015. On this basis, residents of Sentul City filed a lawsuit against Perumdam at PTUN Bandung.
The residents’ claims were strengthened by an amicus curiae from the Indonesian National Human Rights Commission (Komnas HAM RI) that stated that residents not paying BPPL was an unjustified reason used by Perumdam Tirta Kahuripan to refuse the residents’ access to water. Komnas HAM RI stated that Perumdam Tirta Kahuripan failed to apply the General Principles of Good Governance (AUPB). Furthermore the LAHP of the Indonesian Ombudsman discusses the potential for maladministration and abuse of power by Perumdam due to SPAM not being carried out in the entire Sentul City area. Essentially, Komnas HAM RI and the Indonesian Ombudsman had the same recommendation – to order Perumdam to immediately carry out SPAM in the Sentul City area.
In the end, the residents of Sentul City won the lawsuit with Decision No. 28/G/TF/2021/PTUN BDG. The verdict stated that Perumdam had violated the procedures and substances of the law and AUPB. They were sanctioned to immediately grant residents access to clean water and to subject them to water tariffs that are in accordance with what was set by the local government of the Bogor Regency. PTUN Bandung had also granted the request of the residents for the management of SPAM to continue regardless of whether further legal proceedings take place.
Although the residents of Sentul City had greatly contributed in the return of a privatized water supply service to the state (remunicipalization) and benefitted the state by increasing the number of consumers of Perumdam, the struggles of the residents were not finished. Perumdam decided to file a notice of appeal at the Jakarta State Administrative High Court (PTTUN Jakarta) on 26 August 2021. Such actions showed that Perumdam prioritizes private interests despite it being harmful for residents. Residents of Sentul City hope that until the case has permanent legal force, state administrative courts at every level decide to strengthen the decision of PTUN Bandung.
AMAR Law Firm & Public Interest Law Office