Law, democracy and the fulfilment of socioeconomic rights: insights from Indonesia

Abstract

In recent years a debate has emerged about the conditions under which justiciable legal frameworks facilitate the fulfilment of socioeconomic rights. This debate has pitted institutionalist perspectives that emphasise the progressive potential of democratisation against structuralist perspectives that emphasise the constraints imposed by relationships of power and interest. This paper considers the debate in light of Indonesia’s recent experience. It suggests that we need to examine how institutional and structural factors interact within particular contexts to shape socioeconomic rights fulfilment, not examine these factors in isolation. It also considers the strategic implications of this argument for rights proponents.

Keywords:

• Law
• human rights
• Indonesia
• democratisation
• structuralist
• institutionalist

Notes

1. Fukuda-Parr et al., Fulfilling Social and Economic Rights, 4.

2. Gauri, “Social Rights and Economics,” 465.

3. Mitlin and Hickey, Rights-based Approaches to Development, 3.

4. Fukuda-Parr et al., Fulfilling Social and Economic Rights, 102–103.

5. The SERF Index measures the extent to which countries are meeting their obligations to fulfil five rights provided for in the ICESCR: the right to food, the right to housing, the right to health care, the right to education, and the right to decent work. Fulfillment of these rights is measured, in the case of food, by the percentage of children under five who are not stunted; in the case of education, by primary school completion rates and combined gross school enrolment rates; in the case of health, by the child mortality rate, the age 65 survival rate and the contraception use rate; in the case of housing, by the proportion of the rural population with access to an improved water source and the proportion of the population with access to improved sanitation; and in the case of work, by the percentage of the population that earns more than $2 per day. The five rights are equally weighted, as are the indicators within each right. The right to social security is excluded from the index on the grounds that there are no reliable available measures. See Fukuda-Parr et al., Fulfilling Social and Economic Rights, for a more detailed description of the composition of the index.

6. Ibid., 110.

7. Khan, The Unheard Truth, 203.

8. See, for instance, the recommendations made in Amnesty International, Realizing Sexual and Reproductive Rights.

9. Epp, The Rights Revolution; Simmons, Mobilizing for Human Rights; Cousins, “Capitalism Obscured”; Wilson, “Institutional Reform”; Wilson, “Health Rights Litigation”; and Joshi, “Do Rights Work?”

10. See, for instance, Simmons, Mobilizing for Human Rights; and Fukuda-Parr et al., Fulfilling Social and Economic Rights.

11. See, for example, Cousins, “Capitalism Obscured.”

12. See Sangmpam, “Politics Rules”; and Dellepiane-Avellaneda, “Review Article” for surveys of this literature.

13. North, Structure and Change in Economic History; and North, “Economic Performance through Time.”

14. Fukuda-Parr et al., Fulfilling Social and Economic Rights, 132–133.

15. Ibid., 129.

16. Joshi and Moore, “Enabling Environments.”

17. Simmons, Mobilizing for Human Rights.

18. Ibid.

19. Ibid., 16.

20. Epp, The Rights Revolution.

21. Becker, “Constructing SSLM”; and Grenfell, “Realising Rights in Timor-Leste.”

22. Wilson, “Institutional Reform”; and Wilson, “Health Rights Litigation.”

23. Ginsburg, Judicial Review in New Democracies.

24. Leys, “Capital Accumulation”; Rodan et al., The Political Economy of South-east Asia; Harriss, Power Matters; and Rodan and Jayasuriya, “Hybrid Regimes.”

25. Scheingold, The Politics of Rights; Rosenberg, The Hollow Hope; and McCann, Rights at Work.

26. Cousins, “Capitalism Obscured.”

27. Baxi, “Taking Suffering Seriously.”

28. Ibid., 132.

29. Grugel and Piper, Critical Perspectives on Global Governance; and Grugel and Piper, “Do Rights Promote Development?”

30. Grugel and Piper, “Do Rights Promote Development?,” 94.

31. Grugel and Peruzzotti, “The Domestic Politics of International Human Rights Law.”

32. Piper, “The ‘Migration–Development Nexus’.”

33. Rosser, “Law and the Realisation of Human Rights.”

34. Lindsey, “Indonesian Constitutional Reform,” 29.

35. Fukuda-Parr et al., Fulfilling Social and Economic Rights, 104.

36. Countries with similar scores included Lao PDR, Cambodia, Bangladesh, Uganda, Ethiopia, Central African Republic and Mozambique.

37. The SERF Right to Food index probably underestimates the country’s progress in terms of realising the right to food. The Index is built on a single indicator – the proportion of children under five who are not stunted – that, in the Indonesian context at least, appears to be subject to some fluctuation, probably as a result of changes to measurement methodology. Other relevant indicators, such as the prevalence of underweight children under five years old and the proportion of the population below a minimum level of dietary energy consumption, have shown more substantial and secular improvement during the same period, suggesting that the country’s performance vis-à-vis the right to food is in fact somewhat better than the SERF index data suggest. See Government of Indonesia, Report on the Achievement of the Millennium Development Goals.

38. Ibid.

39. Mietzner, Indonesia’s 2009 Elections; and Aspinall, “Health Care and Democratization in Indonesia.”

40. On this, see Chang et al., Teacher Reform in Indonesia.

41. Rosser, “Contesting Tobacco-control Policy”; Rosser, “Law and the Realisation of Human Rights”; and Rosser, “Resisting Marketisation.”

42. See, for instance, ELSAM, Atas Nama Pembangunan; and Baswir, Pembangunan Tanpa Perasaan.

43. Mietzner, Indonesia’s 2009 Elections.

44. Pratisto, “Memburu Tambang Emas Biru”; Mahkamah Agung, “Putusan Nomor 05 P/Hum/Th.2005”; Rosser, “Law and the Realisation of Human Rights”; and Rosser, “Resisting Marketisation.”

45. Tjandra, “The Indonesian Trade Union Movement.”

46. Rosser, “Contesting Tobacco-control Policy.”

47. Ibid; and Rosser, “Law and the Realisation of Human Rights.”

48. Hadiz, “Reorganizing Political Power in Indonesia,” 593. See also Fukuoka, “Debating Indonesia’s Reformasi” for a review of the literature on Indonesia’s post-New Order transition.

49. Prawiro, Indonesia’s Struggle for Economic Development, 173–-211, 130–134; ADB, Indonesia; and Boediono, Ekonomi Indonesia Mau Ke Mana?, 13, 31.

50. Prawiro, Indonesia’s Struggle for Economic Development, 173–211, 130–134.

51. Hoemardani, Renungan Tentang Pembangunan; and Moertopo, Strategi Pembangunan Nasional.

52. Riady, “Jokonomics.”

53. ADB, The Social Protection Index, 13–14.

54. SMERU, Rice for Poor Families, 26, 40; and SMERU, The Effectiveness of the Raskin Program, 9–10.

55. Sumarto, Perlindungan Sosial Dan Klientelisme.

56. Rodan and Jayasuriya, “Hybrid Regimes.”

57. Simmons, Mobilizing for Human Rights, 377.

58. See, for instance, Epp, The Rights Revolution; Simmons, Mobilizing for Human Rights; and Wilson, “Institutional Reform.”

59. Cousins, “Capitalism Obscured,” 906.

60. Cousins, “Capitalism Obscured”; and Grugel and Piper, “Do Rights Promote Development?”

61. In this respect our analysis has much in common with recent work on ‘the politics of inclusive development’. See Hickey et al., “Exploring the Politics of Inclusive Development.” This work has demonstrated that the nature of ‘political settlements’ varies from country to country, in turn shaping institutions and how they work. Hence the same institutions can have quite different effects in different contexts, depending on the underlying structural context.