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Australian Journal of Asian Law

Abstract from Volume 10 No 1 (2008)

Determination of Economic, Social and Cultural Rights by the Indonesian Constitutional Court

Philippa Venning, BA, LLB (Hons), LLM, is a Senior Policy Analyst, AusAID. This article was written while the author was a consultant with the World Bank in Indonesia. The views expressed here are those of the author in her personal capacity and do not necessarily reflect the views of either the World Bank or AusAID.

Indonesia’s Constitution contains a swathe of economic, social and cultural rights which can now be judicially determined by the newly established Constitutional Court. Approaches to judicial determination of economic, social and cultural rights range from these rights being expressly justiciable to being mere statements of principle to guide the executive and legislative branches. These approaches, explored and evaluated in the light of practical examples from developing countries, are used as a basis to analyse how the Indonesian Constitutional Court has determined economic, social and cultural rights since its establishment in 2003. Two judicial review cases on the Electricity and the Water Resources Laws are examined in detail and indicate that the court is taking a strong-form approach to determination of economic, social and cultural rights, squarely placing it in the realm of policy-making. The analysis in terms of theories of justiciability is placed in the context of the socio-political realities present in Indonesia to conclude that strong-form judicial review can provide a useful tool for the poor to advocate for social change in a transitional democracy prone to financial crises.

(2008) 10(1) Asian Law 100

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