Lost in Implementation: The Gap between Rhetoric and Reality in the Constitutional Right to a Healthy Environment

The world has been witnessing the constitutionalisation of the environment over the last several decades. With an enshrinement of the right to a healthy environment into the constitution, environmental performance is hoped to be enhanced in view of the paramount importance of the constitution in a nation’s legal system. However, despite the great expectation, a huge gap exists between the rhetoric of constitutionalised environmental right and the reality of increasing environmental challenges in many countries. This paper thus explores the reasons for an only limited effectiveness in adopting the constitutional right to a healthy environment as an instrument to address environmental concerns. Through a critical observation on the contentious role of the constitution as a paper tiger or the national soul, the inadequate protection of the constitutional right within the institutional infrastructure, and the controversies regarding the ambiguity of an environmental right recognised distinctly, it argues that the gap between rhetoric and reality in the constitutional right to a healthy environment mainly lies in the limited implementation and enforcement, which is nonetheless inevitable considering the above uncertainties around constitution, constitutional right and environmental right. In addition to these reasons, this paper further reveals that it is not easy to implement the constitutionalised environmental right strictly as a result of the constraints between economic development and environmental protection, of which decision-makers need to take into consideration and weigh in the balance according to the particular context. Instead of excusing the implementation deficit existed between law on paper and law in practice, this paper finally concludes that the gap between rhetoric and reality demonstrates the limitations of a solely constitutional regime including the right to a healthy environment as a mechanism for promoting environmental value and protecting environmental right.