The 1st International Colloqium on Interdisciplinary Islamic Studies (ICIIS 2018)

Graduate School UIN Syarif Hidayatullah Jakarta. October 9-10, 2018

Green Constitution (Study of the Thought of Jimly

Asshiddiqie from the Perspective of Maqa>s}id al-
Shari>’ah Ibn ‘A<shu>r)
JM. Muslimin, Sirojudin
Syarif Hidayatullah State Islamic University Jakarta
jm.muslimin@uinjkt.ac.id
sirojudin14@mhs.uinjkt.ac.id
Abstract- This paper is made to explore the thoughts of Jimly
Asshiddiqie on his idea about a green constitution. A green
constitution is a commitment to the environment. This principle is
part of a broader ideology that places human relations with nature
as the main starting point. Awareness of the environment that
deserves becomes an important and urgent global discourse. The
idea of Eco-rights must be a guideline in state policy making (legal
politics) in Indonesia, which must be executed in the state system as
outlined in green legislation and even a green constitution which in
this opportunity will be reviewed from the perspective of maqa>s}id
al-shari>’ah perspective Ibn ‘A<shu>r in terms of suitability of
theory and purpose
This study uses qualitative methods and library research.
Green constitution, as an idea and legal product is very promising,
because it can force the legislation below which regulates all sectors
of life to be pro-environment. However, in practice, it is less effective,
as evidenced by the large number of environmental destruction
activities. This happens, because in its application, green
constitution does not include metaphysical religious values (reward
/ sin), and natural sacredness such as the sacredness of trees, land,
rivers, forests, and water.
Keywords: green constitution, environmental rights, maqa>s}id al-
shari>’ah.
I. INTRODUCTION
Today many terms are displayed and used by linking green
words, such as green politics, green legislation, and green
constitution.
The green principle is the affirmation of commitment to the
environment as part of a broader ideology that places human
relations with the world, with nature as the basis [1]. Green is a
way of growing, building, producing, and living [2].
The green concept is closely related to green democracy,
namely: recognition of nature and the environment and what it
contains, understanding of ecological sustainability so that
humans do not take exploitative actions, the meaning refers to
the concept of ecocracy delivered by Henryk Skolimowsky
with his environmental philosophy, which considers the
relationship between one individual with the environment [3].
The environmental crisis is not purely derived from
environmental problems, however, it comes from economic
justice issues as well. The greenhouse effect that causes global
warming is caused by rich countries as contributors to
emissions thousands of times larger than poor countries. This
proves that the ecological crisis comes from social and
economic disparities [4].
In the book Environment and Politics, Timothy Doyle and
Doug McEachern, explained that environmental damage that
occurs in one country is closely related to politics in the country
[5]. ghfgdgfjgdjgfjdjfjfjdhjfhjdhjfhdjhfjd
Awareness of the political role that causes environmental
damage, raises a movement to place the environment as a legal
subject, inspired by the environmental declaration (Stockholm
Declaration) of February 6, 1972 which is the guidance for
members of the United Nations. Through this declaration, there
began to be formal recognition of environmental rights and was
considered an integral and complementary part of the 1948
Declaration of Human Rights [6].
The development of environmental policy according to Jimly
Asshiddiqie consists of 2 (two) stages. The first phase, occurred
with the encouragement of an increasingly widespread
awareness around the world of the importance of protecting the
environment from pollution and destruction, by pouring
environmental policies in the form of official legislation in
order to have a high position with binding force for the public.
Having been established as official legislation, it was found
to be ineffective in preventing environmental damage, so that
demands emerged to strengthen the legal umbrella of
environmental policy into the constitution as the highest law.
This insistence arises because in every battle between sectors
and agencies, environmental interests are always defeated by
other sector policies, such as the mining, energy and tourism
sectors [7]. This defeat does not only occur in executive forums,
but also in political and legislative forums. Therefore the idea
arises to raise the level of norms of environmental protection to
the level of the Constitution which has a stronger position, so
that every product of legislation made by parliamentary
institutions can be controlled [8].
From the explanation above, Jimly Asshiddiqie offered the
idea of a green constitution to be the value of every law that was
born in Indonesia.
This paper will examine the relationship between green
constitution and the rules in maqa>s}id al-shari>’ah perspective
Ibn ‘A<shu>r.
II. LITERATURE REVIEW
As for the previous relevant research studies, among others:
 The 1st International Colloqium on Interdisciplinary Islamic Studies (ICIIS 2018)
Islamic Environmental Theology. This dissertation states
that, the ecology that is developing today tends to be
anthropocentric, and secularistic, which is claimed to be the
cause of environmental damage. So it is very urgent to develop
alternative ecological concepts with religious spiritual nuances
[9].
Green Deen. This book says that: "Religion" green invites us
to look critically at environmental problems and find solutions
by combining the potential that exists in various sectors,
religions and beliefs [10].
Eco-Terrorism. This book invites stakeholders to increase the
term crime against humanity to be a crime against the joints of
life as a whole [11].
Nature Conservation in Islam. This book explains that
maintaining the environment in Islam is part of the totality of
human worship [12].
Environmental Conservation Argument as the Highest
Purpose of Sharia. This dissertation explains that conservation
is a mandate for all living things to maintain a variety of life
with all its systems [13].
III. RESEARCH METHODOLOGY
The method used in this study is a qualitative method in the
form of literature review, by choosing the type of normative
legal research.
The approach theory used as a analysis tool is the ecological
approach, the constitution and maqa>s}id al-shari>'ah. In its
implementation, this approach is used to analyze Jimly
Asshiddiqie's thoughts from the perspective of Maqa>s}id Ibn
‘A<shu>r.
IV. DISCUSSION
A. The Synergy of the Green Constitution and Maqa>s}id al-
Shari>’ah
The Constitution and the maqa>s}id al-shari>’ah have a
similarity, namely: both have the highest position in the
hierarchy of the rule of law. This synergy can be seen from
several things:
1. Green Constitution and al-Mas}lahah
Achieving benefit and rejecting damage is the main goal of
the Shari'ah [14], every pleasure or reverence for pleasure is
benefit and every suffering or disgust for suffering is damage
[15].
The birth of green constitution is intended to create a binding
legal rule in general for the sake of maintaining a good living
environment. All rules that are stipulated, both economic,
social, cultural and political rules are intended to guarantee the
benefit of citizens. However, the above activities will not
produce benefit if in practice they do not pay attention to the
environmental rights that are the place where the activity is
carried out. So, it can be concluded that the main purpose of the
idea of incorporating environmental protection rules into the
constitution is to guarantee benefit in all sectors of life [8]. From
this point (consideration of benefit) green constitution meets
Graduate School UIN Syarif Hidayatullah Jakarta. October 9-10, 2018
with al-Mas}lahah which is the main objective of maqa>s}id
al-shari>’ah, which makes human benefit as the main goal, both
the benefit of reason, action and the environment around [16].
2. Green Constitution and Sadd al-Dhara>i’
One of the functions of green constitution is to prevent or
cancel the emergence of rules in other sectors such as the
mining, tourism and plantation sectors which are also expected
to be successful in absorbing productive workers, who often do
not pay attention to environmental sustainability practices in
practice. So, it is very important to make the rules on
environmental conservation a constitution, because, in reality,
the idea of environmental protection often faces an imbalance
with the interests of the ruler (state), the ruler of the business
world (market), and the society itself [8] .
The substance of law like this, we get also in maqa>s}id al-
shari>’ah with the Sadd al-Dhara>i’ term, by preventing actions
that do not contain elements of damage because they can cause
damage [17], even though eyes are legally permissible, but in
reality they become a cause for prohibited actions [18].
3. Green Constitution and al-Mas}lahah al-‘A<<<<<mmah
Muqaddamah ‘Ala> al-Mas}lahah al-Kha>s}s}ah.
There is a provision that the getting a good and healthy
environment is a human right of every human being [19], then
the state is burdened to guarantee a good environment. In other
side, every one has the right to sue everyone not to damage the
environment in order to protect the public interest. This
provision also prohibits the existence of laws that are sectoral
in nature that do not support the preservation of nature which
has been recognized as a public interest [8].
These provisions, find compatibility with the “al-Mas}lahah
al-‘A<<<<<mmah Muqaddamah ‘Ala> al-Mas}lahah al-
Kha>s}s}ah” rule. [20].
A. The Green Constitution Synergy and al-Qawa>’id al-
Fiqhi>yah
1. Green Constitution and Tasharruf al-Ima>m ‘Ala> al-
Ra’i>yah Manu>t} Bi al-Maslahah
The constitution was born to be the basis of general and
binding policy makers, so it is important to create a green
constitution, so that all policies that are decided to guarantee the
preservation of the environment. This value is contained in the
rules of applicable fiqh, "the policy of the ruler must contain
benefit" [21].
2. Green Constitution and Ma> La> Yatimm al-Wa>jib Illa>
Bih Fahuwa Wa>jib
Maintaining the environment is obligatory, because the
proper environment is the maintenance of all the primary goals
of the Shari>'ah, and one of the ways to ensure the preservation
of the environment, by making all environmental conservation
tools into the constitution article, with this premise, creating a
mandatory green constitution. the law is in accordance with the
rules, "imperfect obligations will not to be comleted without the
support of something, then something becomes mandatory"
[22].
B. The Green Constitution Sinergy and al-Qawa>’id al-
Us}u>li<yah
The 1st International Colloqium on Interdisciplinary Islamic Studies (ICIIS 2018)
Graduate School UIN Syarif Hidayatullah Jakarta. October 9-10, 2018
Al-Qiya>s is one of the rules in us}u>l al-fiqh, meaning:
bringing the branch problem to the main problem in some of its
laws because there are similar legal reasons between the two
[23].
Examples of Al-Qiya>s contribution to natural sustainability
[24]:
1. The law on the prohibition of polluting water sources with
industrial waste is generated from an analogy to the law
prohibiting urination in stagnant water which can damage
water sources as reported by Imam Muslim.
2. The law on the prohibition of polluting fresh air with
industrial waste which resulted from analogy to the law
prohibits gathering with humans after consuming hard-
smelling foods such as garlic and shallots as narrated by
Imam Muslim.
3. The law prohibiting the destruction of human and animal
food sources which resulted from the analogy to the law
prohibiting damaging the food sources of jinn and animals
in the history of Imam Bukha>riy and Muslim.
C. Green Constitution in Application
Although it has occupied the highest legal position, in its
application, green constitution is still not effective, as
evidenced by the many environmental damage activities.
Responding to this phenomenon, there are 2 things that are
forgotten by green constitution so that it does not provide
maximum results, namely:
1. Not Including Religion / Metaphysical Value
Legal products should not be dry from religious values, it is
not ideal if they only promote logical positiveistic aspects,
without including the metaphysical sociological aspects
(reward / sin), because the teachings of all religions must forbid
damaging nature, as confirmed in the Qur'an (Q: S. 2: 205).
2. Not Including the Value of Natural Sacredness
In order to reach the target, the green constitution must
include the value of natural sacredness such as the sacredness
of trees, land, water, forests, and rivers, so that humans will be
encouraged to be friendly and glorify the environment.
V. CONCLUSION
The idea of incorporating environmental protection rules into
general and binding laws and regulations is an encouraging
start, because it is considered a concrete step of world
awareness of the importance of preserving nature for the
continued existence of human life. After officially being a
statutory rule and practiced, finding obstacles, namely the rules
of law at the same level in other sectors that are more numerous
and not pro-environment, resulting in an unbalanced fight
between pro-environment laws and those that are not pro-
environment . Then the idea emerged to raise the rules of
environmental law to the highest level, namely the constitution,
so that the pro-environment constitution was born which was
known as the green constitution.
The green constitution, as a legal idea and product is very
promising, as the highest legal guideline, he can force the
legislation below which regulates all sectors of life for the
environment. However, in practice, it is still proven to be less
effective, this is evidenced by the undeniable fact that there are
still very many activities that damage the environment carried
out by citizens who apply the principle of green constitution.
This happens because in its application, green constitution is
lacking or does not even include natural sacred values such as
the sacredness of trees, land, rivers, forests, and water. It does
not mention the existence of equality of rights and degree
between humans and nature, in the sense that all are creatures
and a sign of the glory of Alla>h SWT, when not glorifying
beings, it is also considered not to glorify Kha>liq. What is
missing from the attention of green constitution is also the
metaphysical aspect (reward and sin), because the rule of law
cannot only focus on the positive aspects of religious values,
culture and wisdom, because humans instinctively are more
easily touched by familiar values with his soul.
So, to increase the effectiveness of the principle of green
constitution, must be equipped with values that are religious
metaphysical and sacred nature.
REFERENCES
[1] Daniel Goleman, Ecological Intelligence: The Coming Age of Radical
Transparency, (London: Penguin Books Ltd, 2009).
[2] Thomas L. Friedman, Hot, Flat, and Crowded: Why We Need Green
Revolution, (Jakarta: Gramedia Pustaka Utama, 2009).
[3] Henryk Skolimowski, Eco-philosophy: Designing New Tactics for Living,
(New Hampshire: Marion Boyars Inc., 1981).
[4] Yudi Latif, Negara Paripurna: Historisitas, Rasionalitas, dan Aktualitas
Pancasila, (Jakarta: Gramedia Pustaka Utama, 2011).
[5] Timothy Doyle dan Doug McEachern: Environment and Politics, (New
York: Routledge, 2008).
[6] Munajat Danuseputro, Hukum Lingkungan Global, (Bandung: Bina Cipta,
1982).
[7] Kerry H. Whiteside, “A representative politics of nature? Bruno Latour
on collectives and constitutions”, Contemporary Political Theory, vol. 12,
pp. 185–205, March 2103.
[8] Jimly Asshiddiqie, Green Constitution: Nuansa Hijau Undang-Undang
Dasar Negara Republik Indonesia Tahun 1945, (Jakarta: Rajawali Pers,
2016).
[9] Mujiyono: Teologi Lingkungan Islam, (Dissertation of UIN Syarif
Hidayatullah Jakarta, 2001).
[10] Ibrahim Abdul Matin: Green Deen: What Islam Teaches About Protecting
the Planet, (San Francisco: Berrett-Koehler Publisher, Inc: 2010).
[11] M. Abdurrahman: Eko-Terorisme: Membangun Paradigma Fikih
Lingkungan, (Bandung: Pemerintah Kota Bandung, 2007).
[12] Fachruddin M. Mangunjaya: Konservasi Alam Dalam Islam, (Jakarta:
Yayasan Obor Indonesia, 2005).
[13] Mudofir: Argumen Konservasi Lingkungan Sebagai Tujuan Tertinggi
Syariah, (Dissertation of UIN Syarif Hidayatullah Jakarta, 2009).
[14] Ahmad al-Raisuniy, Muha>d}ara>t Fi> Maqa>s}id al-Shari>’ah,
(Kairo: Da>r
al-Kalimah, 2014).
[15] Muhammad al-Fakhr al-Ra>ziy, al-Mahs}u>l Fi> ‘Ilmi Us}u>l al-Fiqh,
(Bayru>t:
Muassasah al-Risa>lah, 1997).
[16] Muhammad al-T{a>hir Ibn ‘A<shu>r, Maqa>s}id al-Shari>’ah al-
Isla>miyyah,
(Kairo: Da>r al-Sala>m, 2009).
[17] Ahmad al-Qara>fiy, Anwa>r al-Buru>q Fi> Anwa’ al-Furu>q, (Kuwait:
Da>r
al-Nawa>dir, 2010).
[18] Muhammad al-Zuhailiy, al-Waji>z Fi> Us}u<l al-Fiqh al-Islamiy,
(Damaskus: Da>r al-Khair, 2006).
[19] Pasal 28 H ayat (1) UUD 1945 Amandemen Kedua.
 The 1st International Colloqium on Interdisciplinary Islamic Studies (ICIIS 2018)
Graduate School UIN Syarif Hidayatullah Jakarta. October 9-10, 2018

[20] Nu>r al-Di>n al-Khadimiy, ‘Ilm al-Maqa>s}id al-Shar’i>yah, (Jeddah:

Maktabah al-‘Ubaika>n, 2001).
[21] ‘Abd al-Rahma>n al-Suyu>tiy, al-Ashba>h Wa al-Naz}a>ir, (Bayru>t:
Da>r al-Kutub al-‘Ilmi>yah, 1990).
[22] Muhammad al-Ghaza>liy, al-Mustas}fa>, (Bayru>t: Da>r al-Kutub al-
‘Ilmi>yah, 1993).
[23] Muhammad al-Khin, Al-Qat}’iy Wa al-Z{anniy Fi> al-Thubu>t Wa al-
Dala>lah ‘ind al-Us}u>li>yi>n, (Damaskus: Da>r al-Kalim al-T{ayyib,
2007).
[24] Muhammad al-Muba>rak, Ri’a>yah al-Bi>’ah Min Khila>l al-Ta’qi>d al-
Us}u>liy Wa al-Fiqhiy, Majallah al-Jam’i>yah al-Fiqhi>yah al-
Sa’u>di>yah, vol. 17, pp. 409-502, Shawwa>l, 1434 H.