The Right To A Healthy Environment As Constitutional Justice: The Indonesian Experience -By Dr Tomy Michael

What does a country think when war breaks out? Victory at all costs will be pursued because it concerns sovereignty. It’s as if war is more important than maintaining environmental justice within a country. From a constitutional law perspective, war is the final step, leading to the emergence of the term emergency constitutional law. But globally, what is taught in emergency constitutional law is how countries survive by reducing the effectiveness of other countries. Some time ago, the United Nations General Assembly voted 141-8 to adopt a resolution supporting a world court opinion that countries have a legal obligation to address climate change, with the world’s largest historical emitter, the United States, among those opposing it.

UN Secretary General Antonio Guterres said the vote, in which 28 countries abstained, underscored that governments are responsible for protecting citizens from the “escalating climate crisis.” This means that climate is an important factor in maintaining human life in a country. The relativity of climate, which is part of the environment, when related to Indonesia, has a very strong influence. As stated in Article 28H paragraph (1) of the 1945 Constitution of the Republic of Indonesia, “everyone has the right to live in physical and spiritual prosperity, to have a place to live, and to have a good and healthy living environment and the right to receive health services.” Therefore, regulating a good and healthy living environment is the state’s obligation. However, if we look at global developments, environmental issues are also regulated by the United Nations or other international organizations. The recognition of the right to a healthy environment under Article 28H(1) of the 1945 Constitution places Indonesia within the growing movement of environmental constitutionalism. This constitutional approach regards environmental protection not merely as a policy choice but as a legal obligation of the state to safeguard present and future generations. Consequently, environmental degradation and climate change should be understood not only as ecological problems but also as constitutional concerns affecting human dignity and fundamental rights.

Providing a good and healthy living environment is not just about cleanliness but also includes the influence of customs or habits from the community that have existed for a long time in Indonesia but are considered not in line with the environment itself by other countries. The right to a healthy environment should also be interpreted through the lens of intergenerational justice. Constitutional protection is not limited to current citizens but extends to future generations. Therefore, the state bears a continuing responsibility to ensure that economic development, natural resource exploitation, and cultural practices do not undermine the environmental rights of those who will inherit the nation in the future.

For example, a customary law community is a human community that adheres to regulations or laws that govern human behavior in relation to one another, including the entirety of customs and morals that are truly lived because they are believed and adhered to. If violated, the perpetrators are subject to sanctions from the customary authorities. A customary law community whose structure is based on the principle of descent is a customary law community whose members feel bound by an order based on the belief that they all come from the same descendants. For example, Pamali, as an expression of Sundanese culture, is interpreted as a behavioral guide and a consistent reminder and deep respect for their ancestors. By adhering to this tradition, indigenous communities believe they will achieve salvation. Pamali means a teaching of a belief, a trust, that no one dares to violate. Amanah means a mandate from ancestors to continue carrying out a teaching. When these customary teachings become part of environmental law enforcement, it seems as if the concept applies only to the internal community but also has an impact outside the community. However, there are also customary ceremonies that produce waste without regard for the external environment, such as forest burning for shifting cultivation.

The dualism of such actions cannot be resolved in order to comply with the constitution because the Indonesian constitution also recognizes customs as the main source in the constitution. It is important to know that the sources of law in Indonesia come from customs, religious teachings or beliefs, social habits, domestic legal norms and the influence of international law. The country is confused about whether to obey customs or the constitution. In the end, the existence of customs must be integrated with the constitution because we have to return to the essence of the constitution as an agreement between the community and the authorities. Providing a healthy environment must involve various methods as long as these methods bring the common good. However, over time, traditional practices that conflict with the environment can be carried out in other ways without losing their authenticity. Maintaining authenticity is very important to provide understanding and as a legacy of customs for the community afterwards.

Ultimately, the right to a healthy environment constitutes a form of constitutional justice. In an era marked by armed conflicts, geopolitical tensions, and the escalating climate crisis, the legitimacy of the state should no longer be measured solely by its capacity to defend sovereignty but also by its ability to secure ecological well-being. Constitutional justice, therefore, requires states to protect both human communities and the environment upon which human survival depends. For Indonesia, this obligation necessitates the integration of constitutional values, international environmental commitments, and the living traditions of indigenous communities into a coherent framework of environmental governance.

Dr Tomy Michael is a Lecturer and Head of the Undergraduate Law Programme at the Faculty of Law, Universitas 17 Agustus 1945 Surabaya, Indonesia. He holds a Doctor of Law degree from Universitas Brawijaya. His research focuses on constitutional law.