Administrative Environmental Litigation Rights: A Comparative Perspective between Indonesia and Nigeria -By Miftakhul Shodikin

Environmental degradation, in its essential meaning, may be understood as a process of environmental deterioration characterized by the declining capacity of ecosystems to support and sustain life. This phenomenon is reflected in the depletion of natural resources—such as land, water, and air—as well as the extinction of wildlife, all of which systematically disrupt the overall ecological balance.

From a normative standpoint, Indonesia has constitutionally recognized the right to a healthy environment, as enshrined in Article 28H(1) of the 1945 Constitution. This constitutional mandate is further elaborated in Law Number 32 of 2009 on Environmental Protection and Management, which serves as the principal legal framework governing environmental governance in Indonesia. However, recent legislative developments indicate a significant policy shift following the enactment of Law Number 6 of 2023. This statute emerged as a legislative response to the judicial finding of unconstitutionality concerning Law Number 11 of 2020 on Job Creation, initially addressed through Government Regulation in Lieu of Law Number 2 of 2022 before its formal adoption into statutory law.

Despite its stated objective of promoting ease of doing business, Law Number 6 of 2023 introduces several critical challenges within the environmental protection regime. First, it weakens the environmental permitting system by transforming environmental permits into environmental approvals, thereby diminishing the administrative control function as a mechanism for overseeing environmental compliance. Second, it shifts the principle of strict liability toward a fault-based liability regime, potentially undermining both the effectiveness of environmental protection and the realization of justice for affected communities. Third, it restricts public participation in environmental decision-making processes, now limiting involvement primarily to directly affected parties. Fourth, and most crucially, it abolishes the provision on administrative standing (administrative litigation rights), which was previously regulated under Article 93 of the Environmental Protection and Management Law.

In fact, administrative litigation rights serve a strategic function as a preventive legal instrument against unlawful administrative decisions (state administrative acts). This mechanism enables members of the public to challenge administrative decisions under specific circumstances, such as when environmental approvals are issued without the requisite Environmental Impact Assessment (EIA/AMDAL), without UKL-UPL documents, or when business licenses are granted without prior environmental authorization as a mandatory prerequisite. Therefore, the abolition of such rights not only affects procedural safeguards but also substantially weakens public oversight over the legality and accountability of environmental governance.

Regulating Administrative Environmental Litigation Rights in Indonesia

The enactment of Law Number 6 of 2023 (Law 6/2023) cannot be disentangled from the broader deregulatory agenda aimed at stimulating investment and accelerating national economic growth. However, from the standpoint of legal theory, the legitimacy of legislation cannot be assessed solely on the basis of economic efficiency. It must also conform to the three fundamental values of law as articulated by Gustav Radbruch—namely justice, expediency, and legal certainty. Where any of these values is substantially diminished, the normative legitimacy of the law itself becomes open to serious scrutiny.

Within this framework, the central problem of Law 6/2023 lies in the abolition of administrative litigation rights in environmental disputes, effected through amendments to the Environmental Protection and Management Law, particularly the repeal of Article 93. Previously, this provision granted standing to members of the public to challenge administrative decisions concerning environmental permits. Its removal signifies not merely a technical legislative adjustment, but rather a paradigmatic shift from a model of public oversight toward the concentration of administrative authority within the state.

Normatively, this abolition is grounded in three principal rationalizations. First, the transformation of the licensing regime from “environmental permits” to “environmental approvals” integrated into business licensing. Second, the loss of the legal status of environmental permits as State Administrative Decisions (Keputusan Tata Usaha Negara), which previously constituted objects of dispute before administrative courts. Third, the centralization of environmental governance authority in the hands of the central government. Taken together, these shifts construct a legal regime that significantly narrows the space for public participation in scrutinizing the legality of administrative decisions.

In classical administrative law doctrine, however, administrative litigation serves a strategic function as a form of preventive control. It enables the public to challenge administrative acts in circumstances such as the issuance of environmental approvals without a valid Environmental Impact Assessment (AMDAL), without UKL-UPL documentation, or where business licenses are granted absent adequate environmental prerequisites. This mechanism facilitates corrective intervention prior to the وقوع of environmental harm, thereby aligning with the doctrine of preventive justice that underpins modern environmental law.

From a constitutional perspective, the elimination of administrative litigation rights raises serious concerns. Article 28D(1) of the 1945 Constitution guarantees the right to legal certainty and equal protection before the law, while Article 28H(1) affirms the right to a good and healthy environment. By removing access to administrative remedies, the state effectively deprives citizens of a crucial instrument for safeguarding these constitutional rights, thus risking a failure to discharge its obligations to respect, protect, and fulfill human rights.

Furthermore, within the theory of the rule of law, Julius Stahl emphasizes that administrative courts constitute an essential institutional mechanism for controlling governmental action. The abolition of administrative standing implicitly weakens the principle of checks and balances, as administrative decisions in the environmental sector can no longer be effectively reviewed prior to producing tangible harm.

Paradoxically, at the same time, the Supreme Court has moved in the opposite direction by reinforcing the role of administrative litigation through Supreme Court Regulation Number 1 of 2023. This regulation explicitly recognizes administrative lawsuits as part of the broader struggle to realize the right to a good and healthy environment, while also providing legal protection for environmental defenders. This situation gives rise to what legal theory identifies as a norm conflict (antinomy of norms)—a condition in which two simultaneously applicable legal rules regulate the same subject matter but prescribe divergent approaches.

Such an antinomy generates not only legal uncertainty but also obscures the trajectory of Indonesia’s environmental legal policy. On the one hand, statutory law promotes efficiency through the simplification of licensing procedures; on the other, judicial regulation seeks to preserve mechanisms of administrative oversight. This lack of synchronization reveals that the legislative process has not been fully aligned with the principle of systemic legal integration.

More broadly, the abolition of administrative litigation rights signals a shift from preventive control to repressive control. In practical terms, legal protection becomes accessible only after environmental damage has occurred, rather than functioning as a mechanism to prevent such harm. This approach stands in clear tension with the precautionary principle, which forms a cornerstone of international environmental law.

Accordingly, the challenges posed by Law 6/2023 extend far beyond technical legislative concerns; they penetrate the philosophical and constitutional foundations of the rule of law itself. When the law loses its capacity to provide preventive access to justice, it ceases to function as an instrument of protection and instead risks degenerating into a mere tool of power legitimation. In this light, the preservation—or at the very least, the reconstruction—of administrative environmental litigation rights becomes an imperative necessity to maintain a just equilibrium between economic development and the protection of citizens’ environmental rights.

Regulating Administrative Environmental Litigation Rights in Nigeria

Comparative law offers a critical mirror through which national policies may be evaluated. In the context of environmental rights, Nigeria’s experience demonstrates that access to justice is determined not merely by substantive norms, but also by institutional design and procedural openness. As a state characterized by a pluralistic legal system—integrating common law, customary law, and Islamic law—Nigeria exhibits structural features that are not entirely dissimilar to Indonesia. Its constitutional framework, particularly under the 1999 Constitution, acknowledges legal pluralism and accommodates the integration of diverse legal sources within judicial practice.

In the environmental sector, Nigeria adopts a relatively progressive approach by expanding locus standi through the mechanism of public interest litigation (PIL). Under this model, any citizen—whether acting individually or collectively—may initiate legal action on behalf of the public interest against governmental or private conduct that harms the environment. This approach does not rely solely on individualized harm, but rather emphasizes the protection of broader public interests. Theoretically, it reflects a shift from private rights litigation toward public rights enforcement, a paradigm that is increasingly relevant in addressing environmental issues that are inherently collective and intergenerational in nature.

Historically, the institutional foundation of environmental protection in Nigeria can be traced to the enactment of the Federal Environmental Protection Agency Act of 1988, which marked the beginning of a comprehensive national approach to environmental governance. Subsequent institutional reforms were advanced through the establishment of a dedicated environmental ministry and the strengthening of regulatory frameworks under the NESREA Act of 2007. This legislation created the National Environmental Standards and Regulations Enforcement Agency (NESREA), an agency endowed not only with regulatory authority but also with enforcement powers, including the capacity to initiate legal proceedings and compel compliance with environmental standards. Notably, NESREA’s mandate is not confined to repressive enforcement; it also encompasses preventive functions, aligning with the precautionary principle in contemporary environmental law.

Furthermore, judicial dynamics in Nigeria reveal a tendency toward judicial activism in expanding environmental access to justice. This is exemplified in the case of Adediran v Interland Transport Ltd, where the Supreme Court rejected restrictive interpretations of standing in public nuisance claims. The Court held that any limitation preventing citizens from seeking the protection of their civil rights would be inconsistent with constitutional guarantees. This decision not only broadened access to the courts but also affirmed that environmental protection constitutes an integral component of constitutionally protected rights.

Normatively, Nigeria’s approach is further reinforced by human rights instruments, particularly the African Charter on Human and Peoples’ Rights, which has been incorporated into domestic law. The Charter explicitly recognizes the right to a satisfactory and healthy environment and broadens the category of legal subjects entitled to bring claims, including communities and organizations acting in the public interest. Consequently, Nigeria’s legal regime positions society as a central actor in environmental governance, rather than merely as a passive object of regulatory policy.

Reflections for Indonesia

When contrasted with Indonesia, the trajectory of legal policy reveals a striking divergence. Through Law Number 6 of 2023, the scope for administrative challenges against environmental decisions has been significantly curtailed. Conceptually, however, administrative litigation mechanisms embody the principle of preventive justice—aimed at averting environmental harm before it materializes. The elimination of such mechanisms restricts public oversight of administrative decision-making and shifts legal protection toward a more reactive posture.

From the perspective of rule of law theory, this condition generates a fundamental paradox. A democratic state, in principle, ought to expand public participation in decision-making processes, including through access to judicial remedies. Nigeria illustrates that democratic governance can coexist with, and indeed be strengthened by, robust access to justice—even within a complex framework of legal pluralism. Conversely, the restriction of administrative standing in Indonesia risks weakening the principle of checks and balances and diminishing the effectiveness of environmental oversight.

In a broader analytical frame, this divergence underscores a critical normative question: whether environmental governance should prioritize administrative efficiency or the preservation of participatory and preventive legal safeguards. The Nigerian model suggests that these objectives need not be mutually exclusive. Rather, a balanced legal architecture—one that integrates economic development with meaningful access to justice—constitutes a more sustainable pathway for protecting environmental rights in contemporary constitutional democracies.