The Effectiveness of the Constitutionalisation of Environmental Rights in Indonesia: Judicial Application and Government Compliance

Abstract

As part of amendments adopted in 2000, Indonesia’s Constitution now includes the right to a healthy environment, and several other environment-related rights. It thereby followed a global trend towards the constitutionalisation of these rights. However, the effectiveness of constitutionalisation of these environmental rights in Indonesia has been mixed. Indonesia’s Constitutional Court – the judicial institution with exclusive authority to ensure that national legislation does not violate the Constitution – has underutilised the right to a healthy environment in its decision making, as have litigants appearing before it, despite ample opportunities. Nevertheless, the Court has issued many decisions that have urged or required the legislature to pay more attention to environmental sustainability, employing the constitutional rights of indigenous communities and Article 33 of the Constitution to provide environment-related protections. Yet many of these decisions have been incomplete or vague, which has hampered genuine legislative and executive attempts to comply with these decisions. Worse, the need to amend or create laws to respond to those decisions has created opportunities for legislators to pursue their own political, institutional and even commercial interests, by effecting legal change that directly contradicts those decisions. By contrast, the decisions reviewing the Forestry Law appear to have prompted the executive, primarily the Ministry of Forestry and Environment, to act by issuing numerous regulations. While some of these appear directed to ensuring that Ministry’s continuing control over the sector, overall they are likely to increase environmental protections, while also respecting the claims of indigenous communities.