The Constitution of the Philippines and transformative constitutionalism

This article examines the 1987 Constitution of the Philippines’ provisions on social and economic rights and welfare. It considers how the 1987 Constitution fits within the post-liberal paradigm of ‘transformative’ constitutional texts that emerged during democratic transitions in the 1980s and 1990s. It then analyses how the Supreme Court of the Philippines responded to the constitutional call for egalitarian socio-economic reform in the first fifteen years after the People Power revolution. The article highlights how the 1987 Constitution envisions far-reaching, progressive socio-economic change, and incorporates both social and economic rights as well as open-ended policy goals in this regard. The article argues that this hybrid approach to distributive justice creates a distinctive set of interpretive challenges for the judiciary. It then argues that the Philippine Supreme Court’s approach to these provisions in the years following the transition to democracy was perfunctory and somewhat inchoate. The court affirmed its jurisdiction over these provisions, but did not develop meaningful standards or principles in relation to them. The article points out that transformative constitutional texts place difficult demands on the judiciary in relation to social and economic rights. They prompt the judiciary into unfamiliar domains. At the same time, institutional legitimacy – including legitimacy on questions of distributive justice – requires judges to sustain the sense of a cogent boundary between constitutional law and politics. The article argues that these challenges were heightened in the Philippines by the textual ambiguity of the 1987 Constitution as well as the relative dearth of jurisprudential resources at the time. It concludes by considering the implications of the Philippines experience for the design of transformative constitutions.

Upaya Efektifitas Kejaksaan Dalam Pengembalian Asset Negara Dalam Kasus Korupsi

The widespread and systematic crime of corruption is also a violation of the social and economic rights of the community. Therefore, all corruption crimes can no longer be classified as ordinary crimes but have become extraordinary crimes. In an effort to eradicate corruption in Indonesia, the Prosecutor's Office of the Republic of Indonesia continuously works hard with all available capabilities both at the central level (AGO) and at the regional level (High Attorney, District Attorney and District Attorney's Office). In connection with efforts to confiscate and confiscate the proceeds of corruption crimes, it is the most important point in efforts to eradicate corruption in Indonesia, even this is often forgotten by law enforcement where efforts to eradicate corruption are only related to how to punish corruptors. In this paper, the author uses a descriptive qualitative methodology. This paper examines the model of returning assets resulting from corruption crimes in the law enforcement process.

Constitutional Rights without the Notion of OptimizationLimiting Judicial Activism in the Realm of Social and Economic Rights

This chapter argues that apex courts should not take the place of the legislative or the executive branch. It takes a critical stance towards the notion of optimization that legal principles entail. Optimization results in judicial activism that, in turn, shifts the power from politics to courts. The chapter then looks at some decisions by the German Federal Constitutional Court considered 'activist decisions' in the realm of socio-economic rights, and compares their follow-up with the Colombian experience. It suggests that judges must play a rather modest role and limit themselves to a case-by-case rationale even if social rights are systematically under-enforced. The chapter also calls the courts' attention to be aware of the financial restrictions of their countries. Finally, it asks courts to create incentives for the legislatures and executive branch to commit with social and economic rights, and insists that follow-up measures should not be taken by apex courts, but rather by the political branches.

How can Rights be Individuated?

This chapter focuses on how courts should individuate social and economic rights. Although all rights can be judicially enforced, judges must have a different approach to each right; there are substantial differences even among social and economic rights themselves. Analysing the recent Dladdla case of the South African Court, the chapter argues that it is not possible to confine human interests regarding housing to bare survival, but other dimensions of the right to housing come into play. In this sense, it seems to take the stance of the 'interest theory' of rights, according to which despite their canonical formulations, rights have a dynamic character due to ever-evolving interest and duties that rights are there to protect and impose. This dynamism is even clearer in pluralist societies, where disagreement on those interest and duties flourishes. The chapter then calls the attention on how courts should do their job in regards to the interpretation and enforcement of socio-economic rights; it suggests taking an 'integrated' approach, which acknowledges the interconnection of the various rights.

A National Treasure? The Role of Civil Society in Promoting and Enforcing Human Rights in the United Kingdom

The article investigates the negative attitude towards civil society over the last decade in the United Kingdom and the repercussions for human rights. It considers this in the context of the United Kingdom government’s implementation of the policy of austerity. It reflects on the various policy and legal changes, and the impact on the campaigning and advocacy work of civil society organizations, particularly those that work on social and economic rights.

Social and Economic Rights

This chapter focuses on four social and economic rights which have been invoked in relation to children before the European Court of Human Rights: the right to health care, the right to a healthy environment, the right to property, and the right to social welfare. In relation to health care, it considers issues concerning consent to treatment, immunisation and disease prevention, privacy, and medical negligence. The chapter then examines the issue of abortion, focusing on the status of the unborn children under the Convention, as well as the right to effective access to treatment. The right to a healthy environment is also analysed, although this issue has only been briefly considered in the context of children’s rights. Finally, the child’s right to property, in the context of misuse of property, inheritance rights, and child maintenance are considered, as well as social security and social welfare, including parental leave and allowances, and access to state benefits.

Unions and the rights of migrants in the long run

We use historical data on union density and new historical data on policies toward migrants to study the long-run relationship between the strength of trade unions and the social and economic rights of migrants in the Global North. In countries with strong trade unions, there was, for a long time, a widening distance between the rights of migrants and the rights of citizens, probably because the rights of citizens expanded sooner and more quickly than the rights of migrants. Over time, however, the differences between countries with strong and weak unions have diminished, and in more recent years, the ‘rights gap’ between citizens and migrants has in fact been smaller in countries with strong unions than in countries with weak unions.