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Constitutional Review
Number of Followers: 4  

  This is an Open Access Journal Open Access journal
ISSN (Print) 2460-0016 - ISSN (Online) 2548-3870
Published by Constitutional Court of the Republic of Indonesia Homepage  [1 journal]
  • Social and Economic Rights in the German Basic Law' An Analysis with
           Respect to Jurisprudence of the Federal Constitutional Court

    • Authors: Christoph Enders
      Pages: 190 - 209
      Abstract: The Basic Law for the Federal Republic of Germany did originally not provide for social or economic rights understood as claims to benefits. The Federal Constitutional Court (FCC) did, indeed, recognise the states obligation to protect individuals against assault by others (right to security) and further ruled that everyone has the right to use facilities provided by the state under equal conditions (right to participation). These rights, however, aim to ensure that the state uses existing means as intended. In addition, the FCC by now has recognised a “right to the guarantee of a dignified minimum subsistence”. It is an original entitlement as the state is obliged to create and provide benefits for individuals in need. This new legal construction, however, misconceives the division of responsibilities between the FCC and the legislator and collides with the principle of the separation of powers
      PubDate: 2020-12-30
      DOI: 10.31078/consrev621
      Issue No: Vol. 6, No. 2 (2020)
       
  • The Urgenda Case in the Netherlands on Climate Change and the Problems of
           Multilevel Constitutionalism

    • Authors: Gerhard van der Schyff
      Pages: 210 - 240
      Abstract: This contribution analyses the Urgenda judgments in the Netherlands which ordered the state to reduce the national emissions of greenhouse gasses by 25% by the end of 2020. In arriving at this conclusion, the courts relied heavily on international law, which was applied indirectly and directly to the case. The analysis shows various incongruencies and gaps in the judgments’ legal grounds and reasoning, and suggests that a focus on the Constitution is needed as well in addressing such important issues. This will require long overdue reform of the bar on constitutional review in order to stimulate a strong national legal culture based on the Constitution.
      PubDate: 2020-12-30
      DOI: 10.31078/consrev622
      Issue No: Vol. 6, No. 2 (2020)
       
  • Constitutionalized But Not Constitute: The Case of Right to Social
           Security in Indonesia

    • Authors: Stefanus Hendrianto
      Pages: 241 - 281
      Abstract: Previous studies on the development of socio-economic rights in Indonesia heavily focus on the Constitutional Court’s decisions in upholding the rights. But there is still minimum study on the political economy behind the development of socio-economic rights in Indonesia. This article will analyze the development of socio-economic rights through the lenses of the right to social security. This article relies on two major theoretical frameworks to analyze the development of the right to social security in Indonesia. The first theoretical framework is the authoritarian constitutionalism in the economic sphere. The second theoretical framework in this article is Kathrine Young’s theory of the construction of socio-economic rights. This article postulates that the rights to social security has been constitutionalized but not constituted in Indonesia for several reasons. First, and foremost, the legacy of authoritarian constitutionalism that prioritizing economic growth over the fulfilment of social economic rights. The “growth” ideology has contributed to the discrepancy between the constitution and reality, in which the government merely considers protection of socio-economic rights as extra cost, which will hamper the growth of the economy. Second, the lack of philosophical and comparative analysis in the interpretation of rights to social security. Third, the transformation of the Court as a detached court in the enforcement of the rights to social security. The element of detachment is clearly seen in the Court’s too much deferral to the Executive and Legislative branches in defining the scope and meaning of the right to social security. Finally, the failure of social movement to create a new narrative on injustice and the importance of rights to social security.
      PubDate: 2020-12-30
      DOI: 10.31078/consrev623
      Issue No: Vol. 6, No. 2 (2020)
       
  • The Role of Constitutional Courts in Promoting Healthcare Equity: Lessons
           from Hungary

    • Authors: Mária Éva Földes
      Pages: 282 - 310
      Abstract: This paper explores whether constitutional litigation contributes to sustaining the equity element of the right to health. Equity entails a fair distribution of the burden of healthcare financing across the different socio-economic groups of the population. A shift towards uncontrolled private healthcare provision and financing raises equity challenges by disproportionately benefitting those who are able to afford such services. The extent to which equity is enforced is an indicator of the strength of the right to health. However, do domestic constitutional courts second-guess, based on equity, policy decisions that impact on healthcare financing' Is it the task of constitutional courts to scrutinize such policy decisions' Under what conditions are courts more likely to do so' The paper addresses these questions by focusing on the case of Hungary, where the right to health has been present in the Fundamental Law adopted in 2010 and the Constitutions preceding it. While the Hungarian Constitutional Court has been traditionally cautious to review policy decisions pertaining to healthcare financing, the system has been struggling with equity issues and successive government coalitions have had limited success in tackling these. The paper discusses the role of constitutional litigation in addressing such equity concerns. In doing so, it contributes to the discussion on the role of domestic constitutional courts in the protection of social and economic rights.
      PubDate: 2020-12-30
      DOI: 10.31078/consrev624
      Issue No: Vol. 6, No. 2 (2020)
       
  • Enforcing Nonjusticiable Rights In Indonesia

    • Authors: Andy Omara
      Pages: 311 - 337
      Abstract: A debate over which branch of government is the most appropriate institution to deal with economic and social rights is far from ended. Is it the legislature which is democratically elected or the unelected Court that should determine the enforcement of economic and social rights' Problems pertaining to the lack of legitimacy and competence often come up when the Court is involved in determining economic and social rights. These problems arise because a court is not democratically elected and is not equipped with necessary tools to deal with such a complex issue in economic and social rights. However, others believe that the Court’s involvement in determining economic and social rights can strengthen democracy since the Court may enforce matter that is not sufficiently addressed by the lawmaker. This paper will address the above issue in context of Indonesia. Should the Court involve in protecting economic and social rights' If so, how far the Court can go to determine economic and social rights' This paper acknowledges that economic and social rights are a broad and complex topic. Therefore, this paper limits the discussion by analyzing four selected judicial rulings which have significant impact in the protection of economic and social rights in Indonesia i.e. the judicial review cases on Electricity Law, Water Resources Law, National Education System Law and National Budget Law. This paper argues that it is necessary for the Court to involve in determining economic and social rights, especially when the lawmaker does not sufficiently address issues related to economic and social rights in its legislative product. The Court may fill the gaps in the protection of Economic and Social rights. The Court roles in this context, however, potentially encroach the authority of other branches of governments i.e. the executive and the legislative. Therefore, the Court roles should be carefully and strategically conducted so that it does not infringe the jurisdiction of the government and the lawmakers.
      PubDate: 2020-12-30
      DOI: 10.31078/consrev625
      Issue No: Vol. 6, No. 2 (2020)
       
  • The Relationship Between the European Convention on Human Rights and
           Domestic Law: a Case Study

    • Authors: Kamil A. Strzępek
      Pages: 338 - 365
      Abstract: The article is pertaining to the relationship between the European Convention on Human Rights and the Polish national law. Upon the introduction of the system of economic, social and cultural rights contained in the Constitution of the Republic of Poland of 1997, the article considers what rules determine the relationship between the application of the law by Polish courts and the European Court of Human Rights in Strasbourg. The paper concludes by showing how Polish courts and the European Court of Human Rights in Strasbourg refer to the right of property. It’s one of the fundamental human rights, when they examine a case. It occurs that clauses, which limit this right, are sometimes understood in a different way by Polish courts and the European Court of Human Rights. Regarding the above, the case of Waldemar Nowakowski v. Poland of the European Court of Human Rights in Strasbourg is discussed. Furthermore, the article presents how the Polish Government executes the judgment of the European Court of Human Rights in Strasbourg delivered in the above-mentioned case.
      PubDate: 2020-12-30
      DOI: 10.31078/consrev626
      Issue No: Vol. 6, No. 2 (2020)
       
 
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