Executive Summary
The tsunami that devastated the Indonesian province of Aceh on 26th December 2004 caused tremendous loss of life and enormous destruction of infrastructure and property. This tragic event and the subsequent handling of the response, was a catalyst for the Indonesian government to rethink its approach to managing the range of disasters that affect its islands on an almost weekly basis. The impact of the tsunami led to the development of Law Number 24 of 2007 concerning Disaster Management (the DM Law). This law regulates disaster relief and governs the entire disaster management system in Indonesia, from preparedness to response and recovery. As a result, Indonesia is now at the forefront of disaster-prone countries that have developed and are strengthening, comprehensive legal frameworks to support the entire disaster management spectrum.
This study analyses the laws related to disaster risks in Indonesia using the pilot version of the ‘Checklist on Law and Disaster Risk Reduction’,2 which was developed jointly by IFRC and UNDP through a global consultation process. This report is the result of an integrated research process that combined desk-based legal research with stakeholder interviews in-country, followed by a multistakeholder consultation workshop held in February 2016 to verify the research findings and explore relevant issues with participants. It provides a ‘legal mapping’ of the laws and regulations that address disaster risk reduction (DRR) in Indonesia, analysing them against the questions contained in the Checklist and assessing their implementation based on stakeholder feedback and secondary sources.
It is intended to provide law, policy and decision-makers with an analysis for consideration in future developments of the legal framework for DRR and its implementation.
Overall, Indonesia has a strong and comprehensive legal framework for disaster management. The DM Law of 2007 provides the foundation for disaster management and DRR in Indonesia. Together with a series of regulations issued in 2008, it lays out a comprehensive set of provisions outlining national and regional government responsibilities, community rights and obligations, the role of businesses and international institutions, the different disaster management stages as well as disaster aid financing and management. Ultimately, this legal framework provides a foundation upon which the necessary structures, rights and responsibilities are being developed to properly integrate DRR into Indonesia’s disaster management sector.
These developments are linked to the key commitments on implementing DRR that have been made by the government of Indonesia through its adoption of the Hyogo Framework for Action (HFA)3 and the more recent Sendai Framework for Disaster Risk Reduction 2015-2030 (SFDRR)4 . Overall, Indonesia has made strong and positive steps towards integrating and implementing the key recommendations of the HFA and is planning for its implementation of the SFDRR that will take place over the next 15 years. The Sendai Framework calls upon states to review and promote national laws and regulatory frameworks for DRR, across all relevant sectors. This includes, among other things, assigning roles and responsibilities, promoting community-level engagement and ensuring compliance with safety-enhancing regulations. The legal framework in Indonesia already broadly addresses these priority issues and has a strong institutional structure for disaster management. Furthermore, the government of Indonesia and BNPB in particular, is actively engaged in reviewing, amending and promoting laws and regulations that contribute to DRR.
Most responses to the Checklist questions, however, revealed that further improvements in law and especially in implementation, are still needed to fully address the integration of DRR into the legal framework in Indonesia. Many sectors examined for this report possess a great deal of relevant legislation at the national, regional, district and even village levels. Yet analysing the national laws against the Checklist questions reveals several areas where legal provisions could be improved and better integrate important DRR considerations. The key to successfully promoting DRR lies in robust implementation of laws and policies on a whole-of-society basis.
The remainder of this section sets out some of the key findings of this report according to the Checklist questions, as well as some of the most important recommendations for future action.
1 Do you have a dedicated law for disaster risk management that prioritises risk reduction and is tailored to your country context?
• Indonesia possesses an extremely sophisticated legal framework for disaster management that also provides a solid foundation for DRR in Indonesia. Together with a series of regulations issued in 2008, it sets out a comprehensive set of provisions outlining national and regional government responsibilities, community rights and obligations, the roles of businesses and in ternational institutions, the different disaster management stages and their requirements, as well as disaster aid finance and management.
• Multiple regional, district and local level disaster management plans and contingency plans have been and continue to be developed. Whilst there is a strong focus on emergency response they present a strong opportunity to integrate appropriate DRR priorities.
• Links with other sectors and institutions, in particular climate change, could also be clarified and strengthened in law and practice. There is also a need to try and extend the application of the DM Law and Regulations beyond the authority of BNPB and better integrate other Ministries into the framework.
• The framework would also benefit from more detailed provisions on the measurement of success and implementation.
2 Do your laws establish clear roles and responsibilities related to risk reduction for all relevant institutions from national to local level?
• Roles and responsibilities for DRR in Indonesia are relatively well assigned under the legalframework but they could benefit from further clarification.
• Regional, district and village governments all technically maintain responsibility for DRR under the general transfer of powers to the local level. Their exact responsibilities, as well as how to effectively coordinate with regional and district Disaster Management Agencies (Badan Penanggulangan Bencana Daerah (BPBD)), would also benefit from further clarification.
• Effective coordination between the various agencies and sectors involved in DRR could also be improved and was highlighted by most interviewees as an issue, including from government.
• Although strong civil society-based networks for DRR exist (notably PLANAS, which maintains coordination at civil society level) there is no clear multi-ministerial/sectoral coordination mechanism at government level that meets consistently and ensures information is shared between different bodies.
3 Do your relevant sectoral laws include provisions to increase safety and reduce vulnerability?
Key findings according to the Checklist questions:*
• Environment: the legislation for this sector is comprehensive and contains important provisions relating to Environmental Protection and Management Plans, the Strategic Environmental Assessment Process and an Environmental Impact Assessment regime (EIA). It also links environmental protection and planning to development and spatial planning processes.
• The DM Law provides that disaster risk analysis should be incorporated into EIAs although no details on implementation are provided. A clear mechanism on how the analysis should be incorporated would be of great benefit.
• Forests: a detailed and sophisticated legal regime governing access to and exploitation of forests has been developed over many years and the risk of forest fires is considered and incorporated into forest planning.
• The framework law on forest management, number 41 of 1999, is supported by a number of important regulations issued not only by the Ministry of Environment and Forestry but also by the national, regional and district governments. The legal framework could however benefit from more explicit linkages between the forest sector and the DM ‘sector’ and more detailed regulations and guidelines on reduction of risks from forest fires.
• Water: the repeal of Law 7/2004 on Water Resources due to the potential for excessive privatisation and monopolisation of water resources halts the progressive content of law 7/2004, concerning disaster risk mitigation and community engagement and management of resources.
• However, other positive legislation and practices remain in place, as the water sector benefits from an extensive amount of regulation issued at national, regional and district level.
• Land use planning: coordination with the land use/spatial-planning sector is noted in Indonesia’s legal framework for disaster management, which refers to the implementation and enforcement of the spatial structure plan as a component of the pre-disaster stage as well as its place in prevention and mitigation activities.
• The ambitions of the DM Law and the activities of BNPB and BPBD agencies need to be aligned with those of the main actors in spatial planning in order for disaster risks to be considered appropriately within the planning system.
• Building and construction: a comprehensive construction regulation and permitting system is established under law 28/2002 on Buildings, secondary regulations and a long list of detailed standards and codes, most of which are adapted from international best practice and standards. A relatively strong sanctions regime also exists under law for non-compliance.
• Considerations relevant to DRR are included, both at a high level in law 28/2002 as well as through detailed standards (which include, among others, earthquake resistance, dam safety, general hazard prevention, rescue access, wind resistance). However, many of these standards would benefit from being updated (except for seismic risks) and levels of implementation are variable.
• Climate Change: a National Action Plan contains the country’s strategy and is well aligned with DRR considerations. However there is a need for further collaboration between the two ‘sectors’ of climate change and DRR and consideration should be given to implementing a coordinated approach on how they are to be developed as cross-cutting (and inter-linked) themes in other sectors.
4 Do your laws ensure that sufficient resources are budgeted for disaster risk reduction?
• Overall Indonesia’s laws provide mechanisms to budget for DRR, although the emphasis is on funds for disaster response and DRR is not mentioned specifically under the law.
• Stronger links and communications between the Ministry of Finance and BNPB may help clarify funding flows and procedures for DRR. The Ministry of Finance may also need to review its internal procedures regarding budget lines for DRR.
• The legal framework does not contain any provisions to reduce implementation challenges for DRR financing, nor do laws promote disaster insurance and/or other risk finance mechanisms.
5 Do your laws establish clear procedures and responsibilities for risk assessments and ensure risk information is considered in development processes?
• Although provisions under law are limited, in practice a significant amount of mapping of risks and vulnerabilities has taken place in Indonesia, led by a number of actors. In particular, the production of a detailed and comprehensive Risk Index provides a clear foundation for the integration of risk information into planning processes.
• The legal framework would benefit from including more comprehensive provisions on the nature and frequency of risk assessments, as well as mechanisms to ensure that at-risk communities are involved in any mapping and assessment processes.
• Stronger links between risk assessments and vulnerability maps and the development planning and construction sectors should also be encouraged.
6 Do your laws establish clear procedures and responsibilities for early warning?
• A robust and sophisticated EWS for major hydro-meteorological hazards has been developed in Indonesia. The legal framework for EWS, however, is limited and only high-level responsibilities are assigned under national law.
• Importantly,the role of various important actors, including technical ministries, communities, local authorities, scientific institutions, private media companies and civil society organizations could be strengthened both in law and practice.
• There is also a need to focus on the development of EWS for important recurring risks such as flooding, drought and landslides.
• Customary or ‘traditional’ EWS are relatively commonplace and demonstrate a high potential for useful integration into the ‘formal’ EWS. The legal framework would therefore benefit from provisions that seek to integrate customary EWS into government planning and implementation.
7 Do your laws require education, training and awareness-raising to promote a whole-of-society approach to DRR?
• In practice,the integration of DRR into the education sector is very strong in Indonesia.Although not mentioned under the framework law on education, under the DM Law, education and training are key components of the ‘pre-disaster’ stage. The government is required to carry out and stipulate education, training and technical standard requirements for disaster management.
• The issue of mainstreaming DRR into educational policy and curriculums has been provided for in some detail in a ‘Strategy for Mainstreaming DRR in Schools’ issued by the Minister of National Education.
• Overall the legal framework could also benefit from stronger assignment of responsibilities related to DRR education and awareness-raising, with more detailed measures on implementation.
8 Do your laws ensure the engagement of all relevant stakeholders, including civil society, the private sector, scientific institutions and communities in risk reduction decisions and activities?
• Legal provisions that explicitly ensure stakeholder engagement in risk reduction decision-making and activities are limited. The current legal framework encourages stakeholder participation although it could benefit from clearer mechanisms to ensure that this participation occurs.
• The DM Law and regulations as well as several other sectoral laws emphasises the importance of community participation and in some cases provide general frameworks to try to achieve this.
Under the ‘village law’ of 2014 a number of mechanisms exist for community representatives to take decisions that are relevant to the village’s exposure to risks, based on the principle that such matters are assigned to village authorities under law.
• A government regulation that deals specifically with the participation of international institutions and foreign NGOs in disaster management is a positive development that provides a basis for the inclusion of the UN and foreign NGOs in the disaster management system. However it would benefit from expanding the focus of their assistance beyond emergency response, to incorporate planning for and implement DRR activities.
• Overall the legal framework would also benefit from provisions that mandate the representation of civil society organisations and PMI as well as private sector actors in decision-making bodies and DRR activities.
9 Do your laws adequately address gender considerations and the special needs of particularly vulnerable categories of persons?
• Indonesia has a well-developed legislative framework that enshrines and respects the rights of women, the disabled and other vulnerable groups. A Ministry for Women’s Empowerment exists that is responsible for gender mainstreaming at the national level.
• A number of positive practices exist: for example, villages that have developed their own local-level regulations on the participation of women and vulnerable groups in local disaster management.
The challenge is to replicate these successes in other areas where local conditions, capacities and concerns may differ.
• The integration of gender considerations and the special needs of particularly vulnerable categories of persons could be strengthened under the current legal framework. Laws do not currently provide for analysis as to which categories of persons may be most vulnerable or exposed to disaster risks and specific responsibilities for integration into DRR decision-making are unclear.
10 Do you have adequate mechanisms to ensure that responsibilities are fulfilled and rights are protected?
• Institutional reporting lines and monitoring and evaluation provisions are included in the DM Law as well as Regulation 21/2008 and Presidential Regulation 8/2008, which ensures that BNPB reports to the President at least once a month and should combine forces with BAPPENAS and BAPPEDA to monitor and evaluate the implementation of disaster management activities. Accounting for disaster management funds receives a more detailed treatment under Regulation 22/2008.
• Penal provisions are also included under the DM Law, although they concentrate mainly on sanctions for high-risk development without disaster analysis. The law does not refer to wider issues of accountability and liability for DRR.
• Although administrative laws may require, for example, regional and district heads to submit accountability reports to their relevant administrations, there is no indication as to whether this would include information on DRR, whether they would report on a regular basis, or whether such reports are easily available to the public.
• The legal framework would benefit from clarifying how the public may access information. There are also presently no incentives for compliance with laws and regulations for DRR.
