It seems utterly beyond debate, but acknowledging legal right to clean air has assumed the makings of a slow march over the years.
Britain’s 1956 Clean Air Act arose from the lethal effects of London’s 1952 killer smog, which is said to have taken 12,000 lives. The act granted powers to establish smoke-free zones and subsidise householders to shift to the use of cleaner fuels (gas, electricity and smokeless solid fuel).
Advocacy for the importance of clean air has been reduced — at least historically — to the issue of the dangers of passive smoking. But this is small beer when compared to the general levels of global pollution that keeps the Grim Reaper busy on an annual basis.
According to the World Health Organization, air pollution kills about 7 million people each year, with 9 out of 10 people breathing air “that exceeds WHO guideline limits, containing high levels of pollutants, with low- and middle-income countries suffering from the highest exposures”.
United Nations Special Rapporteur on human rights and the environment, David Boyd, noted approvingly in 2019 that a majority of states have, be it through their constitutions, statutes or regional treaties, recognised the right to a healthy environment. But recognition for such a right on a global level remains an unfulfilled object.
The UN General Assembly, for instance, has adopted a range of resolutions on the right to clean water, but never on the right to clean air. This is despite such a right being, according to Boyd, “implicit in a number of international human rights instruments, including the Universal Declaration of Human Rights (right to adequate standard of living), the International Covenant on Civil and Political Rights (right to life) and the International Covenant on Economic, Social and Cultural Rights (right to health)”.
In October, a flutter of interest was caused by a ruling in the Central Jakarta District Court on a lawsuit lodged two years prior, accusing the Indonesian government of unlawfully permitting air pollution in the capital to exceed permissible, healthy limits. Istu Prayogi, who had never so much as touched a cigarette in his life, joined the suit after tests revealed he had the sort of lung damage that would arise from being a long-term, persistent smoker.
The unanimous decision by the three-judge panel found that the seven officials concerned — including President Joko Widodo, three cabinet ministers and the governors of Jakarta, Banten and West Java — were negligent in upholding environmental standards. One of the panel members, Duta Baskara, observed: “They have been negligent in fulfilling the rights of citizens to a good and healthy environment.” The judges, however, dismissed the applicants’ submission claiming that the president had violated human rights.
The Court directed the seven officials to take serious action to guarantee the rights of Jakarta’s residents by improving air-quality regulations and implementing measures to protect human health, the environment and ecosystems informed by science and technology. Environmental laws also have to be policed more rigorously, along with the imposition of sanctions for offenders.
The scale of this effort is hard to exaggerate. Jakarta registered the worst air quality in the world, on June 4, 2019, according to the air quality monitoring app, AirVisual. At 210 on the Air Quality Index (AQI), the city outstripped New Delhi, Beijing and Dubai.
Boyd offered his services to the 32 applicants, writing in his supporting brief: “Protecting human rights from the harmful effects of air pollution is a constitutional and legislative obligation for governments in Indonesia, not an option.” Director of the Indonesian Forum for the Environment, Nur Hidayati, affirmed this view, telling The Jakarta Post in early June that breathing “clean air is our right that the government has to fulfil”.
These are not positions plucked out of some speculative realm of legal reasoning. The right to clean air in Indonesia is guaranteed by such legal documents as the country’s 1945 Constitution and the 1999 Law on Environmental Protection and Management. But the writ of law is not always a guarantee of its policing.
Before the September decision, Jakarta’s governor, Anies Baswedan, thought a ruling against the authorities would not cause much fuss. As the governor’s climate change envoy Irvan Pulungan explained, “The governor doesn’t see this lawsuit as a disturbance to the government’s work but a vehicle for collaboration.” Pulungan also insisted that improvements had been made to the city’s air quality over the course of two years.
The tune coming from the office of the president has been somewhat different, more a case of fleeing rather than addressing a problem. In part, this is understandable, given that Jakarta has becme a city of nightmares for policy makers, urban planners and authorities. Few other concentrations of humanity on the planet are as plagued by environmental concerns. To debilitating air pollution can be added flooding, regular seismic activity and gradual subsidence.
Only a month after the lawsuit was filed, the president proposed relocating the capital to East Kalimantan, on the island of Borneo. “The burden Jakarta is holding right now,” he claimed at the time, “is too heavy as the centre of governance, business, finance, trade and services.” Such moves promise to abandon one problem by creating another, given the risks posed to the environment of East Kalimantan.
Showing a spirit not exactly collaborative in nature, an appeal against the ruling is expected by the government. Jakarta’s governor, in particular, is facing a range of orders from the court, including designing environmental strategies and policies to mitigate the air pollution — under the direction of the Home Affairs minister.
Modest as it is, this victory for the applicants in the Central Jakarta District Court shows, at the very least, that courts remain an increasingly important forum to force the hand of legislatures in ensuring that something so vital is not just seen as a right but enforced as one.
[Dr Binoy Kampmark lectures at RMIT University.]