The economic crisis of the last decade has had well-known detrimental effects on fundamental rights in the EU, in particular on social rights and especially in the south of Europe. The issue of social rights protection during the crisis was a clear case of multi-level constitutionalism (or inter constitutionality, the preferred term in Portuguese). The intervention of distinct national and European institutional actors – national courts, Ombudsman, the ECJ, the Social Rights Commission- and the need to take into consideration various catalogues of rights were frequent. This paper aims to make a preliminary analysis of the similarities and differences between standards of protection, whenever different catalogues of rights are used as a parameter to review the constitutionality or validity of a certain measure regarding social rights; the State’s or EU’s organs involved, the effectiveness of their decisions, as well as the legal reasoning behind them, will also be taken into account.
A. Sen has argued that the law lacks proper purchase on economic and social rights because these rights impose “imperfect” obligations, involving complex decisions about standards and resources. Courts have tended to agree and traditionally been wary of enforcing these rights. However, courts in some developing countries jettisoned this tradition. The Indian and South African judiciaries have been particularly influential in this regard. This paper considers whether courts in Indonesia and the Philippines have followed suit. I examine how judiciaries in both countries navigated the challenge of reviewing socio-economic rights. I argue that the Indonesian Constitutional Court has been bolder than its counterpart in the Philippines in grappling with these rights. I trace the ways in which the Philippines Supreme Court has shied away from taking socio-economic rights seriously and point to aspects of each country’s constitution that influence their differing approaches to these rights.
We are witnessing a deep transformation of our constitutional systems: the uncontestable crisis of the social democratic states goes hand in hand with the affirmation of a new global, supranational, transnational, multilevel constitutional order characterized, on one side, by a growing interdependence among national states and on the other side by the shift of authoritative power from national states to international actors and financial institutions.
This capture of power by these new actors has been evident during the economic crisis, which challenged the social rights protection standard in many countries. My argument is that during the economic crisis we witnessed a predominant role of courts in social rights adjudication, but this phenomenon should not to be read within the classical understanding of judicial activism: instead, it has to be considered as an intervention aimed to “restore” an imbalance within the separation of powers that occurred during the economic crisis.
The recognition of socio-economic rights in constitutions, legislation and policies, and the recent growth in jurisprudence in SER in different countries, is partly due to the rising interests in adopting a right-based approach to socio-economic issues and the increased demands in equality in government allocative decision making. This trend can also be seen in Hong Kong’s jurisprudential development. There were important social rights cases decided by the local courts in recent years. This paper analyses the courts’ approach in adjudicating social rights, to see how they view themselves as part of the mechanics in political deliberation and social engineering, the methodology and references they adopt in developing understanding of the content, scope and application of social rights in particular situations. It also looks at the dynamics between the courts and other branches of the government in tackling social rights issues in Hong Kong.