Making Social Rights Real? The 1945 Constitution and Social Rights Litigation in Indonesia

Abstract

Abstract Between 1999 and 2002, the Supreme Deliberative Council (MPR) amended the 1945 Constitution to, among other things, incorporate new provisions providing for better protection of social rights. This chapter assesses the impact of these changes, focusing on legal mobilization related to the rights to education and health. It makes four main claims. The first is that such legal mobilization has typically been collective in orientation, focusing on policy-related matters rather than individual claims. The second is that it has had a positive effect vis-à-vis the fulfilment of social rights in Indonesia because it has precipitated policy changes that helped to enforce or realize these rights. The third is that this outcome has been supported by—and conditional upon—a number of factors including the presence of judicial and health institutions that have limited the scope for citizens to engage in individually focused litigation and—instead—enabled them to engage in collectively oriented litigation; and the presence of non-governmental organizations that have had a strong commitment to social rights, the financial and technical resources to mobilize the law, and the ability to forge alliances with and mobilize popular forces. Fourth, and finally, it suggests that some of these conditions may no longer hold, raising doubts about the likely effectiveness of social rights litigation as a strategy for citizens to promote fulfilment of social rights in the foreseeable future.