The Divergence of a Wandering Court: Socio-Economic Rights in the Indonesian Constitutional Court

22 Pages Posted: 8 Mar 2016

Date Written: March 7, 2016

Abstract

Constitutional convergence theory, which holds that there is a general trend on upward trajectory of the adoption of universal rights, has been disputed because it tends to neglect the complexities involved in constitutional convergence. This article focuses on decisions of the Indonesian Constitutional Court on socio-economic rights that were handed down in its first ten years of operation. The inclusion of socio-economic rights in the Indonesian Constitution is a fitting illustration of the global trend toward the adoption of socio-economic rights across the world. Yet this trend does not necessarily indicate a clear constitutional convergence. This article argues that the Court’s rulings on socio-economic rights indicate that convergence have, in fact, never taken place, rather, divergence has occurred. The Court has indeed borrowed the notion of socio-economic rights but it has interpreted them in a totally different way to the notion of individual private rights, which allow the rights holder to demand the enjoyment of the right. Rather, the Court has interpreted socio economic provisions as the state’s obligation to ensure citizens enjoy their rights. Moreover, instead of defining socio-economic rights as individual rights, the Court has consistently granted privileges to the State to control natural resources.

Suggested Citation

Hendrianto, Stefanus, The Divergence of a Wandering Court: Socio-Economic Rights in the Indonesian Constitutional Court (March 7, 2016). Australian Journal of Asian Law, 2016, Vol 16 No 2, Article 5: 173-193, Available at SSRN: https://ssrn.com/abstract=2744395

Stefanus Hendrianto (Contact Author)

Pontifical Gregorian University ( email )

Piazza della Pilotta 4, 00187
Rome
Italy

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