Vol. 4, No. 1, January 2020, pp. 81-103
Available at: https://ojs.unud.ac.id/index.php/UJLC/issue/view/3398
E-ISSN 2549-0680

Citizens’ Constitutional Rights Regarding Habitable and
Wholesome Environment: Towards a Law State that Protects

the Environment

Nyoman Satyayudha Dananjaya*

The Graduate School of East Asian Studies Yamaguchi University, Japan

Kazuhiko Fuchikawa**
The Graduate School of East Asian Studies Yamaguchi University, Japan &

The Graduate School of Law Osaka City University, Japan

Article Received: 17th October 2019; Accepted: 27th January 2020; Published: 31st January 2020

Abstract

This paper aims to examine the protection of the environment in Indonesia which is part of the
realization of a law state that guarantees the constitutional rights of its citizens. It is a legal
research that reviews Indonesian constitutional and statutory provisions, besides adding a
comparative perspective from a Japanese Constitution and legal system. It is found that the
concept of a law state in Indonesia does not specifically follow the concept of a law state like
what is meant in “rechtsstaat” or “the rule of law”. It has peculiar characteristics which
indeed seem to adopt the noble values of those two concepts which clearly confesses in the
constitution along with the elements and characters stated in it. One of the most prominent
characteristics of a law state is the recognition and protection of human rights. In the
Indonesian Constitution 1945, human rights as the fundamental rights of human beings have
been arranged and compiled which is legally legitimized become constitutional rights. Among
human rights, rights related to the environment include essential rights in array of
international human rights formulations. Article 28 letter H of the Indonesian Constitution
1945 expressly states the rights to habitable and wholesome environment for citizen. The
protection form can be a normative arrangement in the constitution or in a formal juridical
through legislation. Protection of citizens' constitutional rights related to the environment is
faced with due process of environmental protection that requires consistency in order to
achieve the intention and direction of the Indonesian law state itself.

Keywords: A Law State; Citizens’ Constitutional Rights; Environmental Protection; Indonesia;

Japan.

How to cite (Chicago 16th): Dananjaya, Nyoman Satyayudha, and Kazuhiko Fuchikawa.

“Citizens’ Constitutional Rights Regarding Habitable and Wholesome Environment: Towards

a Law State That Protects the Environment.” Udayana Journal of Law and Culture 4, no. 1

(2020): 81–103. https://doi.org/https://doi.org/10.24843/UJLC.2020.v04.i01.p05 .

doi: https://doi.org/10.24843/UJLC.2020.v04.i01.p05

* Email/Corresponding Author: g504sn@yamaguchi-u.ac.jp
** Email : kf@yamaguchi-u.ac.jp

https://ojs.unud.ac.id/index.php/UJLC/issue/view/3398
https://doi.org/10.24843/UJLC.2020.v04.i01.p05
mailto:g504sn@yamaguchi-u.ac.jp
mailto:kf@yamaguchi-u.ac.jp

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

1. Introduction

The concept of law state has been thought of by philosophers and

legal experts. This concept is built by putting the law as a functional and

fairness system. The thought of a law state began when a Greek philosopher

Plato presented the concept of good state administration, starts with his

book named Politeia (The Republic) 1 and ends with Nomoi (The Laws) 2

described as regards the state and the law in relation to realizing the

concept of the state and the implementation of an ideal state would only be

able to be governed by laws. From the philosopher's thought, in ancient

European civilization times, the law has been placed as a central point in

people's lives in a region (state), indicating that the law in a state occupies

an important position. A law state is a state that stands on a legal basis to

organize the life of the nation and the state of its citizens as well as the

relationship between the state and its citizens. It is understandable that

every citizen is a human being wherever they are always bound by the rules

(laws) or norms of life.

The affirmation of a state as a law state is put on the presence or

absence of a constitution, a defining affirmation that the constitution is a

special national document and at the same time is a legal and political

document. The constitution contains the basic framework, structure,

functions and rights of state institutions, the relations between the state

and its citizens regarding citizens’ constitutional rights and supervision of

the implementation of good governance. This is what the so-called

constitutionalism is descriptive of complex concepts, embedded in historical

experience, which subdue officials who use government power restricted by

a higher law. This also means that if a state that is restricted by

constitutional law in using its power, then the administration of its

government will be orderly and prosperous. There is a perception in the

modern state which is then accepted as the fundamental principle for

governance that a constitution that is not based on constitutionalism is not

considered as a veritable constitution.3 Therefore, every independent state

has a constitution, which constitution is likened to a reflection of the soul of

1The Republic is a Socratic dialogue written by Plato concerning justice, character of

the equitable city-state, and the just man. See Plato, The Republic of Plato (London: Francis
Macdonald Cornford trans, Oxford University Press1941), 41-139, 265.

2 The Laws is Plato's final and extensive dialogue. The conversation described in the

work's twelve books begins with the purpose of government, examines the origins of
government and the merits of different constitutions, analyzes the correct method for

legislating law, on midway of the books describing the legal positions, introduces criminal

law include how determining a punishment and ends with legal code. The Laws
afterthought on the ethics of government and law have established it as a classic of political

philosophy. See Plato, The Laws of Plato (London: Thomas L. Pangle trans., The University
of Chicago Press 1980), 3-88, 137-77, 245-79.

3 Ito M, “The Modern Development of Law and Constitution in Japan,” in Japan

Legal System: Text and Material, ed. Meryll Dean, (London: Cavendish Publishing Limited

1997), 520-521.

https://en.wikipedia.org/wiki/Plato
https://en.wikipedia.org/wiki/Dialogue
https://en.wikipedia.org/wiki/Political_philosophy
https://en.wikipedia.org/wiki/Political_philosophy

Udayana Journal of Law and Culture

Vol. 4 No. 1, January 2020

a state. To the extent of achieving the ideals of a law state, the substance of

the constitution needs to be implemented. One of the substances contained

in the state constitution is a regulation related to human rights.

In the Japanese Constitution, Japan is a state that places human

rights as an important pillar. The protection of the environment is one of the

main agendas that continue to be maintained. Japan strongly supports UN

activities in the human rights field, believing that all human rights are

universal.4 In the Japanese Constitution, the Article 11 states that people

must not be obstructed in obtaining human rights. Human rights are

guaranteed by the Constitution. Likewise, in the Article 25 states that all

people have the right to maintain a minimum standard of healthy and

cultured living. In all spheres of life, the State must use its endeavors to

promote and expand social welfare and security, and public health. This is

then implemented through environmental policy and protection established

in various laws and regulations which then begin with the issuance of the

Basic Environment Law and the Basic Environment Plan.

Fulfilling and protecting human rights (as a fundamental rights of

human beings) is an absolute element that must exist in the constitution.5

The human rights were published as a form of state recognition and as a

guarantee of state protection for the rights of citizens, so that the rights are

legally legitimate. Thus, it will bring up a legal consequence that any form of

policy and legislation that is enacted may not violate or negate these rights.

Human rights are rights that universally recognized in intercommunication

of nations as part of the international community. Human rights are

inherent rights of all humans, regardless of our nationality, place of

residence, gender, national origin or ethnicity, color, religion, language or

another status. We are all equally entitled to our human rights without

discrimination. This is the essence of articles 1 and 2 of the Universal

Declaration of Human Rights initiated on 10 December 1948. Since its

declaration, several human rights in the Universal Declaration of Human

4 See Ministry of Foreign Affairs of Japan, Human Rights, Humanitarian Assistance,
Refugees, available at https://www.mofa.go.jp/policy/human/index.html

5 As a comparison, in Japan, in the context of Japanese history, although it is usual
to speak of the 1946 Constitution as the new constitution which in global context it is one

of the more long-lived and enduring constitution, there are three pillars of the present

constitutional framework; Popular sovereignty, Pacifism and Protection of fundamental
human rights are based upon the foundation of respect to the rule of law and are

guaranteed by the supreme court through the use of judicial review...this is demonstrated

by the fact that fundamental human rights are protected against the arbitrary exercise of

government power... See Meryll Dean, Japanese Legal System: Text and Material
(Cavendish Publishing Limited 1997), 506. See Also Hiroshi Oda, Japanese Law (New York,
Oxford University Press 3rd Ed.2009), 28-30 mentioned that there is an extensive bill of

rights in the constitution and respect for fundamental human rights is one of the three
fundamental principles underlying the present constitution of Japan. Fundamental human

rights guaranteed by the constitutions are coffered upon the people as eternal and

inviolable rights.

https://www.mofa.go.jp/policy/human/index.html

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

Rights or commonly called the 1948 UDHR6, it has been gradually adopted

by countries as a normative recognition which then mainly placed in their

constitution. When human rights are stated in the constitution of a state,

hence, human rights are constitutional rights.7

This paper aims to examine the protection of the environment in

Indonesia which is part of the realization of a law state that guarantees the

constitutional rights of its citizens. Furthermore, this paper questions who

has constitutional rights? are there certain requirements to have

constitutional rights? Likewise, the right to a good and healthy environment

as one of the constitutional rights of citizens. Does the inclusion of the right

to a good and healthy environment into the constitution as a constitutional

right for Indonesian citizens can guarantee the protection of the citizens'

constitutional rights? Nevertheless, what is stated in the constitution as a

constitutional right can be interpreted that the implementation of protection

and law enforcement will run well?

As an introduction, this paper describes the concept of a law state,

constitution and human rights in the constitution as constitutional rights.

This paper also explains the essence of the ideals law state by giving state

guarantees to the protection of its citizens' constitutional rights. In result

and discussion section will elaborate on the conceptional framework of

Indonesian law state and the citizen’s constitutional rights in the conception

of Indonesian law state. After that, the discussion will then elucidate the

protection of citizens’ constitution rights related to the habitable and

wholesome environment as an issue to examine. Furthermore, this paper

will compare the constitutional perspectives for environmental protection in

Indonesia and Japan before giving a conclusion as to the last part of this

paper.

2. Result and Discussion

2.1 The Conceptional Framework of Indonesian Law State

In a law state, the existence of a constitution is very important. The

constitution and the state are likened to two things that inseparable

existence. This is a logical consequence of the fact that without a

6 The Universal Declaration of Human Rights (UDHR) is a milestone document in the

history of human rights. Drafted by representatives with different legal and cultural
backgrounds from all regions of the world, the Declaration was proclaimed by the United

Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217

A) as a common standard of achievements for all peoples and all nations. It sets out, for the

first time, fundamental human rights to be protected universally, available at
www.un.org/en/universal-declaration-human-rights/.

7 Jimly Asshidiqie, Pengantar Ilmu Hukum Tata Negara [The Introduction of

Constitutional Law] 134 (Jakarta, Konstitusi Press 2006). See also Gerald L. Neuman,
Human Rights and Constitutional Rights: Harmony and Dissonance Stan. L. Rev. 55 (2003):
1863-1900, 1865 … and will refer to individual rights protected by national constitution as

“constitutional rights”.

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/217(III)
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/217(III)
http://,/
http://www.un.org/en/universal-declaration-human-rights/

Udayana Journal of Law and Culture

Vol. 4 No. 1, January 2020

constitution, a state cannot be formed due to the existence as a state

fundamental law. The constitution is an assurance in realizing a law state,

and in a law state, the importance of the existence of a constitution as a

state fundamental law because the state which is regulated by the law

brings up to a conception of the law state.

In general, the conception of law state is always oriented towards two

different legal systems, namely the common law legal system and the civil

law legal system. These two legal systems use different terms, namely

“rechtsstaat” and “the rule of law”. 8 In the Continental European legal

system, the term rechtsstaat is also referred to by other terms such as the

concept of legality or L’État de droit. The term of the rule of law became

popular in Anglo-American legal system after the publication of Albert Venn

Dicey book in 1885.9

The terminology used to refer a law state at that time, “rechtsstaat” and

“the rule of law” has a different historical background. In Europe,

rechtsstaat emerges rapidly and comprehensively which rests on a legal

system known as the civil law legal system. The rechsstaat, however, was

more complex and regarded government both “as the representative of the

general will (restricting the administration to the application of the enacted

law) and as having its own particular will (based on the government’s

subjective right to command). 10 The genuine concept of rechtsstaat by

establishing government legitimacy through compliance with laws. 11

Towards the end of the 19th century, the concept of rechtsstaat changed

and requires substantive legitimacy such as the protection of human

rights. 12 Conversely the rule of law has developed gradually which then

relies on common law legal systems. These two terminologies (rechtsstaat

and the rule of law) in principle lead to one main understanding and

meaning, namely a law state. Both terminologies are meant to view the law

as an effective means of managing the nation and state life. However, there

are many differences that clearly be seen from both rechtsstaat and the rule

of law. Rechtsstaat, in principle, contains basic features including the

protection of human rights, the separation or division of powers of state

institutions in order to guarantee the implementation of the state power,

and the existence of administrative justice. The rule of law in principle

8 See James R. Silkenat, James E. Hickey Jr., Peter D. Barenboim, eds. The Legal

Doctrines of the Rule of Law and the Legal State (Rechsstaat), (Switzerland: Springer,
2014),15-104. 145-151.

9 See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution,
(London: Macmillan, 8th ed. 1915), 107-122.

10 Mireille Hildebrandt, “Justice and Police: Regulatory Offenses and the Criminal

Law." New Criminal Law Review: In International and Interdisciplinary Journal 12, no. 1
(2009): 43, 59.

11 Ibid.
12 Ibid., 56.

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

contains basic characteristics such as the existence of the supremacy of law,

equality before the law and a guarantee of protection of human rights. The

traditional Anglo-American concept of the rule of law is also more precisely

defined as consisting of two interdependent components: 1) the obligation of

citizens to comply with the law and 2) government compliance with the

law. 13 In a law state that embraces rechtsstaat, it is clearly seen how

important administrative justice as a differentiating tool to other legal

systems. In a law state that adheres to the rule of law, places the

importance of equality before the law.

The history of Indonesian constitutionality describes the concept of a

law state which is affirmed in the constitution. This means that the concept

of a law state is more directed towards the realization of a prosperous state

and provides protection to the nation. Thus, the decent implementation of

the state constitution can provide guarantees to embody the state based on

the law.

Wheare defines the constitution of a state as “… the state’s

governance system, a set of rules which establish and govern the state”.14

Thomas Paine reveals more broadly that “a constitution is not the act of a

government, but of a people constituting a government, and a government

without constitution is power without right… a constitution is something

precedes the government and a government is only a constitutional

creature.15

Although there are several constitutions that have been implemented

in Indonesia, there have been replaced/amended, but the affirmation of

Indonesia as a law state is always stated in the constitution. This shows

that Indonesia itself views the importance of the concept of a law state in

organizing the life of the nation and state. Both in the constitution that was

once implemented in Indonesia16 such as the Indonesian Constitution 1945,

the Indonesian Federal Constitution 1949 and the Indonesian Provisional

Constitution 1950 until the re-enactment of the Indonesian Constitution

1945 to the Amended Indonesian Constitution 1945, the concept of a law

state always received its own emphasis in the constitution.

In the Indonesian Constitution 1945 before the amendment, both in

the Preamble and the Body or its articles, no formulation or term of a law

13 See Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional

Democracy, S. Cal. L. Rev. 74 (2001), 1307, 1335-36
14 K.C Wheare, Modern Constitutions (New York: Oxford University Press, 2nd

ed.1966), 1.
15 Thomas Paine, The Rights of Man 1971-1972, ed. H Collins, (Penguin Classics

1969), 93.
16 The Indonesian Constitution 1945 (commonly called the Constitution of the

Republic of Indonesia Year 1945) remained in effect until it was replaced by the Federal
Constitution on December 27, 1949. Then replaced by the Provisional Constitution on

August 17, 1950. Finally, at 5 July 1959 President Sukarno issued a decree returning to

the 1945 Indonesian Constitution.

Udayana Journal of Law and Culture

Vol. 4 No. 1, January 2020

state was found. The term of a law state is only found in the Explanatory

Section, namely "The State Government System", stated that "Indonesia is a

state based on law (rechtsstaat)" and described by a sentence “The State of

Indonesia is based on law (rechtsstaat), not based on mere power

(machtsstaat). The expression that mentioned state based on law

(rechtsstaat) is a term or formula often used in the Continent of Europe.

Therefore, it indicates that the substance of the Indonesian law state is

inseparable from the influence of the notions, characteristics, and elements

of the law state known in Continental European countries. Whereas, in the

Amended Indonesian Constitution 1945, the affirmation of the Indonesian

law state was stated in the third amendment to the Indonesian Constitution

1945, in Article 1 subsection (3) which states that "Indonesia is a law state".

However, no explanation is found regarding the actual law state that

Indonesia currently adheres to, whether it is a law state in the sense of

“rechtsstaat” or a law state in the sense of “the rule of law” or even a law

state with its own characteristics. When looking at the statements regarding

a law state as outlined in the Indonesian Constitution 1945 on the third

amendment, where no further elaboration is found in the explanation

section, it can be understood that a law state adopted by Indonesia has its

own character. The application of the principle of a law state in Indonesia

can be said to be carried out without referring directly to one concept of a

law state as intended in “rechtsstaat” or “the rule of law”. The concept of a

law state in Indonesia applies the principles in the general concept of a law

state outlined in “rechsstaat” and “the rule of law”. Thus, it is more

accurately mentioned as “the Indonesian Law State”. Based on its

implementation, important elements of the law state are well realized. The

Indonesian law state, in general, explained the administration of the state

based on applicable laws and regulations, the protection of human rights as

a citizen constitutional right 17 , separation or division power, 18 the

implementation of popular sovereignty, 19 and the existence of a state

administrative court20 are still used as a basis in realizing a law state in

17 As formulated in the Second Amendment to the Indonesian Constitution 1945,

there are 27 propositions concerning human rights contained therein, the provisions
concerning human rights have received constitutional assurance contained in Chapter XA

concerning human rights Articles 28A-28J and Chapter XI concerning Religion Article 29

subsection (2) of the Second Amendment to the Indonesian Constitution 1945.
18 The division of power referred in the concept of the law state are legislative,

executive and judicial power. In Indonesian Constitution 1945, legislative power can be

seen in the provisions of Chapter VII concerning the people's representative council, and

Chapter VII A concerning the regional representative council. Carrying out the executive
powers is contained in the provisions of Chapter III concerning the power of state

government and with regard to the judicial power in the provisions of Chapter IX

concerning judicial power.
19 The Constitution of Indonesia 1945, Chapter I concerning State Form and

Sovereignty, Article 1, subsection (2) of the Indonesian Constitution 1945.
20 Ibid, Chapter IX concerning Judicial Power, Article 24, subsection (2).

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

Indonesia. The Indonesian law state also applies the principle in “the rule of

law” concept such as the supremacy of law which requires that the law must

be upheld which can be affirmed by the sentence that the law is commander,

the administration of the state is based on law not by men/individual. In

addition, the principle of equality before the law 21 and the principles of

independence and impartially of the judiciary to realize the due process of

law are also determined as elements of the Indonesian law state.22

The elaboration of the principles of the law state contained in the

Indonesian constitution, the application of the law state principle in

Indonesia is based on its own principle which may not always be in full

alignment with the principles of the law state as it was known in the early

birth of the concept of the law state. Re-formulation of the main idea of the

concept of law state is interpreted as a form of dynamics or the development

of a law state at the present era. Even so, it will be the main pillars that

support the upholding of a modern law state that can realize the goals and

ideals contained in the constitution, namely justice and prosperity.

2.2 The Citizens’ Constitutional Rights in Indonesian Law State

Conception

Jimly Asshiddiqie argues that one of the absolute elements that must

exist in a law state itself is regarding the fulfillment of human rights.

Therefore, Indonesia which is a state based on law, has an obligation to

guarantee and protect its citizens.23 In the Constitution of Indonesia 1945, it

clearly states the rights of citizens, hereinafter referred to as constitutional

rights. In the implementation of the constitution in Indonesia, human rights

are manifested in a legal legitimacy become constitutional rights. I Dewa

Gede Palguna mentioned 24 the use of the term "human rights" has a

universal spectrum with a broader scope than the term "constitutional

rights". Constitutional rights have a domestic scope that applies to the

positive law of a state. The development of human rights at the international

level provides an impetus for the recognition of its existence at the national

level as constitutional rights.

However, it does not mean that there is a dichotomy among them.

Human rights and constitutional rights have similar functions, substances,

and structures. 25 The function of both is limiting government power and

21 Ibid, Chapter X concerning Citizen and Population, Article 27, subsection (1).
22 Ibid, Chapter IX concerning Judicial Power, Article 24, subsection (1).
23 Jimly Assiddiqie, Pengantar Ilmu Hukum Tata Negara, Cetakan Kedua,

[Introduction to Constitutional Law], (Jakarta: Rajawali Press 2nd ed. 2010), 343.
24 I Dewa Gede Palguna, Pengaduan Konstitusional: Upaya Hukum Terhadap

Pelanggaran Hak-Hak Konstitusional Warga Negara [Constitutional Complaints: Legal Efforts
Against Violations of Citizens’ Constitutional Rights], (Jakarta: Sinar Grafika 2013), 131.

25 See Stephen Gardbaum, Human Rights as International Constitutional Rights,
The Eur J. of Int’r Law 19, no.4 (2008): 749-768, 750-751.

Udayana Journal of Law and Culture

Vol. 4 No. 1, January 2020

protecting the basic rights of every citizen. 26 Substantially, both of them

contain basic rights such as economic, social, cultural, civil and political

rights, besides the protection of minority group rights and environmental

protection.27 In addition, human rights and constitutional rights also have a

similar structure where there is a distinction between rights that can be

restricted (derogable rights) and cannot be restricted or reduced by the

element of fulfillment (non-derogable rights).28

Constitutional rights29 are assertively defined and written in a state

constitution as the supreme law of the land, meaning that any other laws in

contradiction with it are unconstitutional and thus declared as invalid. The

form of legitimacy is found in the body of the Indonesian Constitution 1945.

The norms contained in the Indonesian Constitution 1945 not only regulate

the relations between state institutions that giving rise to the constitutional

authorities but also regulate relations between the state and its citizens in

the context that is dealing with the constitutional rights of its citizens. The

Indonesian Constitution 1945 determines the structure, functions, powers,

restrictions on the government and the individual freedoms, rights, and

obligations which will be protected and enforced by state institutions that

have a constitutional authority. In this connection, the citizens’ rights

determined in the Indonesian Constitution 1945 as constitutional rights are

a form of protection for citizens from state actions in the administration of

the state.

Addressing the citizens’ constitutional rights, it can be explained that

the citizens’ constitutional rights are rights granted by the state given due to

legitimated citizenship status in the Indonesian Constitution 1945. The

citizenship of an individual determines many aspects of the relation which a

person has with the state of which he or she is a national, and with other

states. 30 This citizens’ constitutional rights are the result of legitimacy

recognized in the constitution and other legislations. Rights of citizens are

rights granted by the state on citizenship status according to the laws and

regulations.

26 Gerald L. Neuman, op.cit., 1863-1865.
27 Stephen Gardbaum, op.cit., 750.
28 See Stephen Gardbaum, The ‘Horizontal’ Effect of Constitutional Rights, Mich. L.

Rev 102, (2003): 387-458. Note: the term derogable rights is defined as rights that can still
be deferred or limited (reduced) fulfillment by the state under certain conditions. Meanwhile
the term non derogable rights means that there are rights that cannot be deferred or limited

(reduced) by the state, even though in an emergency.
29 The Indonesian Constitution 1945 does not provide the meaning/definition of

constitutional rights. In Indonesian positive law, the meaning/definition of constitutional

rights is determined in Act Number 24 Year 2003 jo. Act Number 8 Year 2011 concerning

Constitutional Courts where constitutional rights are rights that are regulated in the
Indonesian Constitution 1945.

30 A.W. Bradley And K.D. Ewing, Constitutional and Administrative Law (Pearson
Education Limited 13th ed. 2003), 425.

https://en.wikipedia.org/wiki/Rights
https://en.wikipedia.org/wiki/Constitution

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

In achieving the ideals of state, one of the substances contained in the

state constitution is the regulation related to human rights. A state that

adheres to the rule of law or rechtsstaat (law state), one of the elements that

must absolutely exist is the fulfillment of human rights (as a fundamental

rights). The human rights are as a form of state recognition and state

protection for the basic rights of citizens, so that the rights are legally

legitimate. The consequence is that any applicable form of policy and

legislation may not violate or nullify human rights (as fundamental rights).

Constitutional rights are also related to the state's recognition of the

subject of constitutional rights, namely citizens. An Indonesian Citizen is a

person who legally recognized and legalized by Indonesian laws and

regulations. Therefore, as an Indonesian citizen, they have the same and

equal rights. Constitutional rights can be seen as reciprocity of

constitutional obligations, so that constitutional rights and constitutional

obligations cannot be separated, where it can be explained that the

existence of constitutional rights is due to the existence of constitutional

obligations raised of the Indonesian Constitution 1945. Constitutional

obligations are the consequence of citizens in their position on enforcing

actions that are required by the state. Citizens’ constitutional rights are

acquiring protection from the state actions in state administration due to

guaranteed by the state constitution. Such rights must not be violated and

become a barrier to state actions.

2.3 The Protection of Citizens’ Constitutional Rights

Assignation of the rights to habitable and wholesome environment has

an important meaning and rights as citizens' rights. In the history of its

development, rights to the environment are a human right. A

comprehension that can be traced and also be juxtaposed with Article 25 of

the UDHR31 which states, “everyone has the right to a standard of living

adequate for the wholesome and well-being of himself and of his family”.

Whereas in Article 12 paragraph (1) ICESCR32 is affirmed, “the states in this

31 The Universal Declaration of Human Rights (UDHR) then has been adopted by the

United Nations General Assembly on 10 December 1948 as Resolution 217 at the Palais de

Chaillot in Paris. It consists 30 articles affirming an individual's rights, it has been
elaborated in international treaties, regional human rights instruments, national

constitutions, and other laws. It was the first step of formulating process of the

International Bill of Human Rights which was completed in 1966 and a sufficient number of
countries had ratified.

32 On 16 December 1966 through GA. Resolution 2200A (XXI), a multilateral treaty

called the International Covenant on Economic, Social and Cultural Rights (ICESCR)
adopted by the United Nations General Assembly and came in force from 3 January 1976.

In General Comment 14, paragraphs 11–12, In connection with habitable and wholesome

environment mentioned that “states must protect this right by ensuring that everyone
within their jurisdiction has access to the underlying determinants of health, such as clean

water, sanitation, nutrition and housing, and through a comprehensive system of

healthcare, which is available to everyone without discrimination, and economically

https://en.wikipedia.org/wiki/United_Nations_General_Assembly
https://en.wikipedia.org/wiki/United_Nations_General_Assembly_Resolution_217
https://en.wikipedia.org/wiki/Palais_de_Chaillot
https://en.wikipedia.org/wiki/Palais_de_Chaillot
https://en.wikipedia.org/wiki/Paris
https://en.wikipedia.org/wiki/Rights
https://en.wikipedia.org/wiki/Human_rights
https://en.wikipedia.org/wiki/International_Bill_of_Human_Rights
https://en.wikipedia.org/wiki/United_Nations_General_Assembly

Udayana Journal of Law and Culture

Vol. 4 No. 1, January 2020

covenant recognize the right of everyone to relish the utmost standard of

physical and mental health”. Signify, the life needs of Indonesian citizens

must also be fulfilled according to adequate measures both for their health

and other matters related to the support of one's life. More broadly, this

norm is reinforced by its meaning as one of the state goals and ideals

(staatliche ideale) in the Preamble on 4th Paragraph of the Constitution of

Indonesia 1945, namely, to protect the entire Indonesian nation.

This provision implies that every citizen has the right and

constitutional guarantee to live and obtain habitable and wholesome

environment to grow and develop. The meaning of habitable and wholesome

environment can be seen in its philosophical foundation (the highest law of

the land). It was mentioned that habitable and wholesome environment is

the fundamental rights of every Indonesian citizen as mandated in Article 28

H of the Constitution of Indonesia 1945. Thus, the recognition of the rights

to habitable and wholesome environment as human rights then becomes a

constitutional right for every citizen in Indonesia. Therefore, the state

(through state administrators) and all stakeholders are obliged to protect the

environment in the implementation of environmentally sustainable

development and for the benefit of mankind at present and in the future.

Recognizing a constitutional right to environmental protection would

similarly curtail the power of a legislature to permit tampering with the

environment. This has not assumed that the right of the environment is so

important that a court will take the step necessary to assure its protection.

The judicial process, problems complexity, likewise conformity of

institutions for expressing values and devising solutions are worthy of the

most serious consideration in determining the existence and scope of any

constitutional right to a livable environment. But such considerations do not

necessarily preclude the right's existence nor, at this point, delimit its

scope.33

The court will find that the state action requirement is met the erect

manageable judicial standard and impose an affirmative duty on the state to

regulate private interest all in the name of the environment.34 Protection of

constitutional rights can be proven by the existence of constitutional rights

as a limitation for the actions of the state power holder which leads to strict

legal mechanisms in protecting the constitutional rights of citizens. There

are mechanisms that can be used to provide protection against

constitutional rights through litigation as follows:

accessible to all”.

33 See Ronald E. Klipsch, Aspects of a Constitutional Right to a Habitable
Environment:Towards an Environmental Due Process, Ind. L.J. 49 (1974): 204-206.

34 See John Y. Pearson Jr., Toward A Constitutionally Protected Environment, Va. L.
Rev. 56, (1970): 458-86, 470-75.

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

a. Through the Constitutional Court

There are at least 5 functions attached to the existence of a

constitutional court and are carried out through its authority, one of which

is as a protector of the citizens’ constitutional rights.35 The Constitutional

Court is a state institution that has the competence to adjudicate the review

of the constitutionality of the Act as an effort to enforce the citizens’

constitutional rights over the negligence of the legislative and executive

power in drafting the Act that violates the constitutional rights of citizens.

Hans Kelsen stated that the application of the constitutional rules

concerning legislation can be effectively guaranteed only if an organ other

than the legislative body is entrusted with the task of testing whether a law

is constitutional, and of annulling it if according to the opinion this organ it

is “unconstitutional”.36 He argues there is a special organ established for

this purpose, for instance, a special court, a so-called “constitutional court”.

In Indonesia, through constitutional court, the efforts to assure the

constitutionality are by both judicial review and constitutional complaint.

Judicial review and constitutional complaint must be distinguished because

the judicial review is an attempt to examine the constitutionality of the law

enacted in society, while a constitutional complaint is an attempt to examine

the constitutionality of the state power holder actions. 37 These two

procedures are indeed legal efforts that can be pursued in defending citizen

constitutional rights. However, judicial review can be seen as a legal

procedure in examining the constitutionality in a narrow sense. It is

different from a constitutional complaint. If it is related to the concept of a

law state and sovereignty, a constitutional complaint is a legal procedure in

the broad sense that protects citizen rights.

b. Through the State Administrative Court

The hearing procedural in State Administrative Court is used as one of

the legal efforts to protect the constitutional rights of citizens where there is

a violation of the citizens’ constitutional rights because of the issuance of

the administrative decree by the administrative institutions or officer due to

contrary to the laws and regulations. There are 3 (three) meanings contrary

to the laws and regulations, namely:

a) Contrary to the provisions of the formal laws and regulations;

b) Contrary to the provisions of material laws and regulations;

35 Nilwan Wilze Ananda Zen, Untung Dwi Hananto, and Amalia Diamantina

Jaminan Hak-Hak Konstitutional Warga Negara (the Protector of Citizen Constitutional Right)
dengan Implementasi Constitutional Complaint Melalui Mahkamah Konstitusi di Negara

Republik Indonesia, Diponegoro L. Rev 5, no. 2 (2016): 1-24.
36 See Hans Kelsen, General Theory of Law and State, (New York: Anders Wedberg

trans., Russell & Russell 1945), 157
37 I Dewa Gede Palguna, op.cit, 153.

https://scholar.google.com/scholar?q=Nilwan+Wize+Ananda+Zen*,+Untung+Dwi+Hananto,+Amalia+Diamantina

Udayana Journal of Law and Culture

Vol. 4 No. 1, January 2020

c) Issued by an unauthorized State Administration Institutions or

Officer.38

c. Through the General Court

In the procedure of the general judiciary through general court, there

are two types of cases which are the absolute competence of the court in

examining and adjudicating cases, namely courts for criminal cases and

courts for civil cases. In the civil cases, this legal mechanism can be

pursued if one party feels harmed conducted by another party so that one

party to be impaired by its constitutional rights. While in a criminal case,

the case is between individuals and/or legal entities for the actions of one of

the parties who have fulfilled the elements of violations of criminal law

provisions. The protection of the constitutional rights of citizens can be done

through filing claims and/or lawsuits in the first instance court, appeals in

the high court, cassation and judicial review in the supreme court. In

general, the purpose of this judicial system contains the principle of

protecting human dignity.39

2.4 The Constitutional Perspective of Environmental Protection in

Indonesia and Japan: A Brief Understanding

2.4.1 Environmental Protection in Indonesia

Habitable and wholesome environment as a citizens’ constitutional

rights contains environmental meanings that can enable humans to develop

optimally, in harmony and balance. The existence of this assurance gives

the possibility for everyone to demand the state that habitable and

wholesome of their environment needs to be considered and improved

continuously. Therefore, the state has an obligation to provide habitable and

wholesome environment for its citizens and continuously make efforts to

protect and manage the environment.

The recognition of the right to habitable and wholesome environment

in Indonesia cannot be separated from international influences because

Indonesia is part of a state in the world. Internationally, the right of

habitable environment is contained in the Stockholm Declaration, the

second part of the Stockholm Declaration 40 . During the preparation,

delegates at the conference thought the Stockholm Declaration should begin

38 See Phillipus M. Hadjon, Pengantar Hukum Administrasi Negara Indonesia

[Introduction to Indonesian State Administration Law], (Yogyakarta: Gadjah Mada University
Press, 2005), 326-327.

39 I Dewa Gede Palguna, loc.cit.
40 The United Nations Conference, having met at Stockholm from 5 to 16 June 1972,

having considered the need for a common outlook and principles to inspire and guide the
peoples in the preservation and enhancement of the human environment. On the report

proclaimed 26 Principles, commonly called Declaration of the United Nations Conference on

the Human Environment in 21st Plenary Meeting on the 16th of June 1972.

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

with the affirmation that every human being has the right to a decent or

wholesome environment.

Principle 1 Stockholm Declaration mentioned41:

“Man has the fundamental right to freedom, equality and adequate

conditions of life, in an environment of a quality that permits a life of

dignity and well-being, and he bears a solemn responsibility to protect

and improve the environment for present and future generations...”.

Links to human rights and environmental protection, the first sentence has

given interpretations. Narrowly, it restates pre-existing international human

rights of liberty, equality and an adequate standard of living, but innovates

in adding that the implementation of these rights depends upon

environmental conditions, reflecting the perception that environmental

degradation takes effect on the human rights. Broadly, Principle 1

Stockholm Declaration supported a growing movement to recognize the right

to a habitable and wholesome environment as a human right.

In the Article 28 letter (H) of the Indonesian Constitution 1945 states

that every person has the right to live physically and mentally, live and get

habitable and wholesome environment and is entitled to health services. The

mandatory of the Indonesian Constitution 1945 clearly considers that the

need to get a wholesome environment is one of the fundamental rights. The

state is obliged to provide protection and guarantee for habitable and

wholesome environment. Therefore, the state must have a strong authority

in managing and protecting the environment. The constitutional clearly

inspires (obligates) the need for the state to create a comprehensive rule that

is oriented far ahead. The elaboration on the constitutionality of

environmental protection along with the citizens rights to the environment

are set forth in the environmental law. The Act Number 32 Year 2009 42

concerning Environmental Protection and Management (hereinafter referred

to Environmental Act) 43 as a primary act of the environmental law in

Indonesia is a legislation which is the implementation of the provisions of

article 28 letter (H) in the Indonesian Constitution 1945. It contains norm to

41 See Dinah Selton, Human Rights, Health & Environmental Protection: Linkages in

Law & Practice, Health and Human Rights Working Paper Series No 1 A Background Paper
for the World Health Organization. See also Dinah Selton Stockholm Declaration (1972) and
Rio Declaration (1992), Oxford Public International Law, available at

http://opil.ouplaw.com/view/10.1093/law:epil /9780199231690/law-9780199231690-
e1608#law-9780199231690-e1608-div1-2.

42 This environmental act is applied in Indonesia as a replacement of the two

previous environmental acts. The first, Act No. 4 Year 1982 concerning the Basic Provisions

of Environmental Management, the second, the Act No. 23 Year 1997 concerning
Environmental Management. This replacement occurred due to the argument and opinion

at that time that the previous act had not been able to answer the challenges and

environmental problems that occurred in Indonesia.
43 In Indonesia, informally, UUPPLH refer to this Environment Act because it is the

abbreviation of Undang Undang Perlindungan dan Pengelolaan Lingkungan Hidup (The
Environmental Protection and Management Act).

http://opil.ouplaw.com/view/10.1093/law:epil%20/9780199231690/law-9780199231690-e1608#law-9780199231690-e1608-div1-2
http://opil.ouplaw.com/view/10.1093/law:epil%20/9780199231690/law-9780199231690-e1608#law-9780199231690-e1608-div1-2

Udayana Journal of Law and Culture

Vol. 4 No. 1, January 2020

settle environmental cases by using case settlement mechanisms through

administrative law, civil law and criminal law procedures to provide

protection and law enforcement efforts. Therefore, in all aspects of the

environment, there will always be interconnection with basic rights whether

with the scope of administrative, civil or criminal.

In the Environmental Act, it includes human elements and all their

behavior, therefore, humans as environmental subjects have a role that

includes rights and obligations as well as participating in environmental

sustainability. The right to habitable and wholesome environment as a

subjective right is the broadest form of citizen protection. What is called

"subjective rights" in this context is the most extensive form of protection.

Subjective rights provide legal rights to claim their interests in a livable

environment, claims that can be upheld by legal procedures and must be

respected.44 So that, the rights for habitable and wholesome environment as

a fundamental right for citizen must be protected to get an environment that

can affect the survival of humans and other living things that will be spared

from environmental pollution and destruction.

In accordance with Article 65 paragraph 1 up to paragraph 5 of

Environmental Act, it can be found that the rights which are contained in

the environmental field are:

a. The rights to good environmental,

b. The rights to obtain environmental education,

c. The rights to access information, access to participation and access to

justice in fulfilling the rights of habitable and wholesome environment,

d. The rights to submit proposals and/or objections for business plans

and/or activities that are expected to have an impact on the

environment,

e. The rights to have a role in environmental protection and management,

f. The rights to file complaints/ file a sue due to environmental pollution

and/or destruction.

The rights mentioned above can be grouped into two types of due process of

right. First, substantive due process rights (substantive right to

environmental quality in the form of rights to obtain habitable and

wholesome environment). Second, procedural due process of right that

includes the rights to get access for justice, the rights to participate, and the

rights to file complaints/file a sue. However, the Court has not always

distinguished substantive and procedural due process in setting forth such

44 Subjective rights are claims that are legally and lawfully recognized by legal

subjects for certain legal objects. Therefore, when a legal subject acquires the right to an

object as a real relationship with that object, that right is a subjective right See Heinhard
Steiger et.al., Tendances Actuelles De La Politique Et Du Droit De L'environnement (The
Fundamental Right to a Decent Environment, Trends in Environmental Policy and Law),
IUCN-WWF (project No. 1244) 2-5 (1980).

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

standards. The Court has maintained, in effect, that the due process clause

empowers the judiciary to impose natural law limitations upon the conduct-

regulating and enforcement.45

2.4.2 Environmental Protection in Japan

In Japan, protecting the rights of citizens to good, wholesome and

livable environments is an important priority. Constitutional protection of

these rights can be seen in the provisions of the Japanese constitution in

Chapter III concerning Rights and Duties of People Article 11 states that the

people must not be prevented from obtaining human rights. Human rights

are guaranteed by the Constitution which is given to present and future

generations as perpetual and inviolable rights. Article 11 is a strengthening

of understanding that the right to a wholesome environment is a human

right that gets protection from the constitution. This is confirmed in Article

25 states that all people have the right to maintain a minimum standard of

healthy and cultured living. In all spheres of life, the State must use its

endeavors to promote and expand social welfare and security, and public

health. Japanese people believe that this right guaranteed by the

constitution is a long struggle that cannot be contested. Article 97

emphasized that fundamental human rights have been guaranteed by the

Japanese people as a human struggle to be free; they have survived various

obstacles that demand endurance and given to present and future

generations in trust, which will be held all time without being contested.

As well as in Indonesia, in the 1960s, Japan also faced many

environmental problems and had not been able to guarantee the right to

habitable and wholesome environment to the citizen. Japan be avowed as

the most polluted state in the world due to rapid industrialization with a

lack of pollution control. In early 1960s, Japan began to think about

comprehensive pollution control policies. Several factors have accelerated

their realization. People's dissatisfaction with the national environmental

policy has arisen since the "big four" case and people are aware of the

continuing problem of cross-border pollution involving several prefectures.46

These were the Kumamoto Minamata Disease ( 熊 本 水 俣 病 Kumamoto

Minamata-byō) case 47 , the Toyama Itai-Itai Disease (富山イタイイタイ病

45 Leonard G. Ratner, "The Function of the Due Process Clause." University of

Pennsylvania Law Review 116, no. 6 (1968): 1053-1057.
46 Shiro Kawashima, “A Survey of Environmental Law and Policy in Japan,” J. Int'l L.

& Com 20 (1994).
47 Judgment of March 20, 1973, Kumamoto District Court, 696 判事 15 (Japan). See

Julian Gresser et al., Environmental Law in Japan, (Cambridge: The M.I.T. Press. 1981) 65.
Minamata's disease is caused by methylmercury waste from the Chisso Corporation
chemical plant from 1932 to 1968. It was suspected that mercury sulfate in wastewater was

metabolized to methylmercury by bacteria in the sediment. These highly toxic chemicals are

accumulated and biomagnified in shellfish and fish in the Minamata Bay and Shiranui Sea.

Udayana Journal of Law and Culture

Vol. 4 No. 1, January 2020

Toyama Itai Itai-byō) case 48 , the Niigata Minamata Disease (新潟 水俣病

Niigata Minamata-byō)case 49 and the Yokkaichi Asthma (四日市ぜんそく

Yokkaichi Zensoku) case50. In light of the importance of pollution prevention

in ensuring the health and cultural life of the people, the responsibility for

pollution prevention of business operators, national and local governments

are clarified, and measures for pollution prevention are clarified.

Enforcement of the basic provisions in the constitution is also emphasized.

Therefore, Japan's environmental policy has been promoted based on two

basic laws. One of them is the Basic Law on Environmental Pollution

Control, which was enacted in 1967 to tackle serious industrial pollution

that occurred in Japan in the period of rapid economic growth in the late

1950s and 1960s. The other is the Natural Environment Preservation Act,

enacted in 1972 to dismiss the destruction of outstanding features of the

natural environment. Established for the purpose of comprehensively

promoting pollution control by prescribing basic matters, protecting the

health of the people, and preserving the habitable environment.

The attitude of the Japanese government towards managing the

global environment has changed rapidly. The government has introduced a

variety of new environmental regulations aimed at resolving domestic and

international pollution and promoting greater resource conservation.51 Since

the early 1990s, environmental protection has become an increasingly

important national and international policy and program for Japan. Japan

Local people poisoned from eating fish. While the deaths of cats, dogs, pigs and humans

continued for 36 years, the government and companies did not make efforts to prevent

pollution.
48 Judgment of June 30, 1971, Toyama District Court, 635 判事 17 (Japan). See

Julian Gresser et al., op.cit, 49 , 55. The Toyama Itai-Itai Disease case is a case of cadmium

poisoning which causes softening of bones, joints and chronic kidney disease. victims who

suffer unbearable pain so often they shout "itai-itai" ("sick, sick"). for severe pain (Japanese:

痛 い itai). Cadmium was released into the river by the Mitsui Mining and Smelting

Company in the mountains, which was successfully prosecuted for pollution
49 Judgment of September 29, 1971, Niigata District Court, 642 判事 (Japan). See

Kazumasa Takemori, Niigata Minamata Disease and Showa Denko, 中部大学産業経済研究所

紀要 第 22 号 2012 年 3, (22 Bulletin of Institute of Industrial Economy Chubu University,
The Journal of Research Institute for Industry and Economics 56 (2012), Niigata Minamata

Disease is a Minamata Disease occurred in Niigata Prefecture. Niigata Prefecture defines

Minamata Disease is “a nervous disease with the nature of intoxication by eating fish
contaminated by organic mercury repeatedly and continuously.

50 Judgment of July 24, 1972, Tsu District Court, Yokkaichi Branch, 672 判事 30
(Japan). The Yokkaichi Asthma is a case caused by air pollution as a result of burning oil

and crude oil. large amounts of sulfur dioxide are released in the air which causes severe
smog, which results in chronic obstructive pulmonary disease, chronic bronchitis,

pulmonary emphysema, and bronchial asthma against the local people. Occured in the

town of Yokkaichi in Mie Prefecture, Japan, between 1960 and 1972. See Julian Gresser,
The Development of Pollution Control in Japan: An Historical Note, 1 Harv. Envtl. L. Rev.

541 (1976).
51 Miranda A. Schreurs, "Assessing Japan's Role as a Global Environmental Leader."

Policy and Society 23, no. 1 (2004): 88-89.

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Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

is one of 178 countries committed to the Rio Declaration on Environment

and Development with the principles outlined in Agenda 21 to promote

sustainable development at the United Nations Conference on Environment

and Development (UNCED) 1992. 52 Principle 7 of the Rio Declaration 53

recognized the specific responsibility of developed countries in promoting

environmental protection and development: “Developed countries recognize

their responsibility in sustainable development given their community's

pressure on the global environment and the technology and financial

resources they command”.

Japan is widely regarded as one of the developed countries with

modern and progressive economic levels in the world in terms of its

dedication to promoting environmental protection. In fact, Japan is very

responsive to dealing with air pollution and the dangerous hazards

associated with nuclear power plants. After years of change, beginning in

the early 1990s, many new environmental laws were introduced, and new

environmental institutions were established. Significant changes began to be

made to national environmental law.54

Basic Environmental Act was passed in 1993 replacing the Basic Act

for Environmental Pollution Control of 1967 (as amended in 1970) and

absorb the basic ideas of the 1972 Environmental Conservation Act. The

new law is labeled "basic/fundamental" because it unites two different

policies into one basic approach to preventing environmental pollution and

preserving nature. It determines measures of environmental protection of

the Japanese government by considering the modern global perspective.

Importantly, this new action places responsibility on the government to

protect not only the Japanese environment but the global environment. This

was followed by the ratification of the Basic Environment Plan, which

established policies and actions to reduce environmental impacts. Finally,

Japan introduced the Environmental Impact Assessment Act in 1997. Other

actions passed in recent years included a law requiring reporting the release

of toxic chemicals into the environment and a law to promote green

purchases. In the 2010 OECD report55, explained that Japan had made

52 Miranda A. Schreurs, ibid., 53.
53 See The Rio Declaration on Environment and Development (1992), available at

http://www.unesco.org/education/pdf/RIO_E.PDF See in detail Review of Implementation

of the Rio Principles, available at

https://sustainabledevelopment.un.org/content/documents/1127 rioprinciples.pdf
54 Miranda A. Schreurs,op.cit., 95.
55 See OECD Environmental Performance Review: Japan 2010 available at

https://www.oecd.org/env/oecd-environmental-performance-reviews-japan-2010-

9789264087873-en.htm. See also https://read.oecd-ilibrary.org/environment/oecd-

environmental-performance-reviews-japan-2010_9789264087873-en#page1 DOI:

https://dx.doi.org/10.1787/9789264087873-en

http://www.unesco.org/education/pdf/RIO_E.PDF
https://sustainabledevelopment.un.org/content/documents/1127%20rioprinciples.pdf
https://www.oecd.org/env/oecd-environmental-performance-reviews-japan-2010-9789264087873-en.htm
https://www.oecd.org/env/oecd-environmental-performance-reviews-japan-2010-9789264087873-en.htm
https://read.oecd-ilibrary.org/environment/oecd-environmental-performance-reviews-japan-2010_9789264087873-en#page1
https://read.oecd-ilibrary.org/environment/oecd-environmental-performance-reviews-japan-2010_9789264087873-en#page1
https://dx.doi.org/10.1787/9789264087873-en

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Vol. 4 No. 1, January 2020

significant environmental progress through a series of aggressive policies. In

their report, the OECD stated that progress was made in terms of reducing

air emissions, water use and municipal waste generation. In addition, it

noted that Japan has made a conscious effort to move from a truly

ecological sustainable development model to a broader approach that

focuses on identifying existing relationships between ecological protection,

economic growth, and social values.

2.4.3 Equating Japan and Indonesia in protecting constitutional rights

regarding and wholesome environment.

Every state that constitutionally committed to the recognition of

human rights determines the right to an adequate environment. This can be

seen how Japan and Indonesia also provide protection to its citizens in the

form of the realization of the right to habitable and wholesome environment

not only listed in the constitution but also implemented through making

various regulations in the field of the environment, protecting the

environment and making environmental policy. Constitutional provisions

relating to the environment not only in the form of provisions that are set

forth in constitutional as fundamental rights but also how the constitution

ensures the implementation of these provisions. Arrangements regarding the

protection of the environment cannot be determined entirely in a

constitution. constitution as a predominant regulation, thus, the elaboration

of each article in the constitution can be stated in the form of Act and the

implementation regulation of the Act as strengthening the realization of a

law state that prioritizes the protection and law enforcement of the rights of

its citizens.

3. Conclusion

Environmental protection is a joint responsibility of all Indonesian

citizens, but the state has obligations and responsibilities under the

constitution. The state was established to guarantee constitutional rights

through the constitution. The constitution as a state foundation that is used

as a guideline for state administration. The embodiment of the highest law

must be obeyed by the state administrators and its citizens because the

constitution was established as demand and expectation of the citizens to

achieve justice. By mentioning as a constitutional state, citizens surrender

rights to be regulated and implemented to ensure order for the state

administrators.

In the Indonesian legal system, arrangements regarding the rights to

acquire habitable and wholesome environment are contained in the

constitution. This is the main protection given by the state to its citizens as

an embodiment of citizens' constitutional rights. So that the existence of

citizens' constitutional rights in the constitution is not a display to

Citizens’ Constitutional Rights Regarding Habitable

and Wholesome Environment: Towards a Law State that Protects the Environment

Nyoman Satyayudha Dananjaya and Kazuhiko Fuchikawa

100

complement the Constitution of Indonesia 1945. Arrangements regarding

environmental protection are not determined in detail directly in the

constitution but explicitly regulate through articles in the constitution

(article 28 letter H) which instruct delegates to draft a legislation. As an

implemented regulation of the constitution, the Act on the Environmental

Protection and Management (The Act Number 32 Year 2009) became the

basis for all laws and regulations relating to the environment. The

description of the protection of citizens' constitutional rights regarding the

right to habitable and wholesome environment has been implemented into

the environment act. All provisions concerning the protection of the right to

habitable and wholesome environment in detail have been set out therein. If

this provision is carried out in accordance with the norms contained therein,

then, surely the citizens' constitutional rights can be realized. In addition,

even though based on Article 28 letter (I) paragraph (4) of the Constitution of

Indonesia 1945 determined that the state, especially the government is

obliged to respect, to protect and to fulfill in relation with the obligations

that arise from human rights, every citizen also have to carry out the

obligations and responsibilities together to overcome various environmental

problems. In this way, the protection of the environment from a

constitutional perspective can be strengthened.

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