Why Indonesia should legally protect its environment better

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.

Models

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.