Why Indonesia should legally protect its environment better
By Sarah Waddell
JAKARTA (JP): Virtually every national constitution revised or adopted since 1970 has addressed environmental concerns. An important question in view of the constitutional amendments that will be considered by the Indonesian People's Consultative Assembly (MPR) this month is will Indonesia be the only country in recent times not to take the opportunity to strengthen constitutional protection of its natural heritage?
The relevant article in the body of the Constitution is Article 33(3), which states: "Land and water and the natural resources therein shall be controlled by the State and shall be utilized for the greatest welfare of the people."
Why is Article 33(3) inadequate? One reason is that it is placed within a chapter entitled Social Welfare which in fact deals with the structure of the economy.
In terms of environmental protection, Article 33(3) does not focus on the environment but on who should benefit from the exploitation of the environment.
In regard to the duty of the state there is no guidance as to how the state is to utilize the environment for the greatest welfare of the people. It is completely within the state's discretion.
Furthermore, it is conceivable that environmental protection will not always be perceived as being for the greatest welfare of the people. For example, preservation of an endangered species or a sensitive ecosystem may not clearly fall within Article 33(3) if there is a conflict with economic growth.
A fundamental weakness in Article 33(3) is that it formulates environmental management only in terms of a duty of the state. It does not grant a human right to a clean and healthy environment. In this regard, it is out of step with developments worldwide over the last 30 years which have increasingly acknowledged the connection between human rights and preservation of the environment.
New constitutions and amended constitutions in other countries could provide guidance for Indonesia.
One of the most frequently cited constitutional provisions is from the new Brazilian constitution, which states that: "everybody has a right to an ecologically balanced environment, an asset for common use by the people, and essential to the wholesome quality of life. This imposes upon Public Authorities and the community the obligation to defend and preserve it for present and future generations." Article 225 of Chapter VI.
Similar provisions are to be found in the new constitutions of Slovakia, Slovenia, Hungary, Poland and South Africa. Other states with explicit environmental rights provisions include Turkey and numerous Middle American, African and Arab states.
Article 66 of the constitution of Portugal is notable as it places environmental obligations on the state and so may be compared to Article 33(3). Unlike Article 33(3) in the Indonesian Constitution, the role of the state has, however, been clearly specified. It states:
1. All have the right to a human, healthy and ecologically balanced human environment and the duty to protect it.
2. The state is obliged, through its agencies and by appeal and support of popular initiatives:
(a) to prevent and control pollution and its effects and harmful forms of erosion;
(b) to organize territorial space so as to establish biologically stable zones;
(c) to create and develop natural and recreational parks and reserves ...
(d) to promote rational enjoyment of natural resources while safeguarding their capacity for renewal and ecological stability;
In a similar approach, many EU member states including Germany, the Netherlands, Sweden, Finland and Greece have recently adopted environmental duties and state obligations to provide environmentally sound conditions.
The 1993 amendment to the German constitution included a new Article 20(a) that defines care for conditions of life and for future generations as a state obligation. Other countries that have made constitutional amendments to accommodate environmental responsibilities include France, Belgium and Luxembourg.
Why is amendment to Article 33(3) needed? The reasons include the following:
* Constitutional rights and duties act as fundamental principles that have to be taken into account by all branches of government when they create, interpret or apply the ordinary law.
* Constitutional provisions apply to arrangements between private individuals as well as to relations between the public and the state.
* Constitutional guarantees that take the form of human rights may be directly exercised by an affected individual.
* Once environmental protection provisions are contained in a constitution it is difficult to alter them. Thus they provide greater certainty than legislative provisions.
More specifically in regard to Article 33(3), it should be pointed out that where environmental legislation and/or regulations are incomplete or where the government is unable to carry out enforcement action, constitutional guarantees provide protection for affected communities and those acting on behalf of the environment.
Finally, there is still a high degree of legal uncertainty in environmental law in Indonesia as is being shown, for example, in the PT Inti Indorayon dispute. The commonly heard call for "legal certainty" in Indonesia is linked to the effective formulation of constitutional rights, powers, duties and obligations.
The sitting of the MPR in August to consider constitutional amendments provides an opportunity for both the protection of Indonesia's natural heritage and the enhancement of legal certainty. It should not be missed.
(For the summary of environmental provisions in national constitutions the writer is indebted to an article by Prof. Klaus Bosselmann, University of Auckland entitled Human Rights and the Environment: Redefining Fundamental Principles.
The writer is an environmental lawyer from Sydney who is currently based in Jakarta writing a doctoral thesis on environmental law in Indonesia.