Legislating Safety Nets: Comparing Recent Social Protection Laws in Asia
45 Pages Posted: 27 Apr 2015 Last revised: 5 May 2015
Date Written: February 1, 2015
In recent years, several Asian countries have begun moving away from patchwork welfare programmes, towards providing more comprehensive social protection. This is a significant shift in a region where social welfare has not been politically popular, and the family has traditionally absorbed the burden of supporting the young, the old and the ailing.
Two of these states – India and Indonesia – have put new social protection initiatives into law, rather than simply formulating executive policy. In this article, I examine recent social protection laws in both countries. I look in particular at India’s National Food Security Law, passed in 2013, and Indonesia’s laws on the National Social Security System, passed in 2004 and 2011. These laws deserve attention because they aim not just to extend benefits, but to advance economic and social rights, which are recognised in both India and Indonesia at the constitutional level.
These recent social protection laws potentially deepen what Brinks & Gauri describe as the “legalization” of welfare policy, whereby legal rights assume importance in policy, and legal professionals, judges in particular, become significant in implementing it. As such, these laws are likely to, and arguably should, impose quite hard-edged obligations on the government and enable individuals to hold the government to its obligations. At the same time, recent social protection laws have the potential to allay concerns that legal enforcement of economic social rights distorts policy and dilutes the separation of powers.
Through my analysis, I show that social protection laws in both India and Indonesia have primarily expanded the policies that preceded them, rather than fundamentally restructuring how particular forms of social protection are delivered. Further, none of these laws define the socio-economic rights underlying them in a detailed, substantive manner, creating rights that are minimal and definite, or broad but weak. I go on to argue that despite gaps, flaws and missed opportunities, these laws – with the sum of rights, remedies and accountability mechanisms they contain – have made the rights to food and social security more stable, and are likely to make them more accessible to individuals.
Keywords: India, indonesia, right to food, social security, right to health, social and economic rights
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