Bridging the gap between constitutional abolitionist and transformative critiques of South African constitutionalism

This paper examines two critiques of the South African constitution’s ability to eradicate inequality – ‘constitutional abolitionism’ (which argues that the constitution is embedded in liberal ideology and is thus inherently incapable of eradicating inequality ) and the ‘internal’ critique (which roots the problem not in the constitution, but in the failure of courts, the legislature and executive).

The paper will suggest a shift away from seeing the two approaches as dichotomous. Through a critical analysis of the departures from classic liberal constitutions (on which the theory of transformative constitutionalism relies), the paper will argue that, if radically and persistently pursued, these departures could pave the path towards the constitutional abolitionists desired rupture from the prevailing social and economic inequality in South Africa – work that will require commitment from the legislature, judiciary and executive – bridging the gap between the two critiques.

Three Courts, Three Faces of Non-Discrimination

The principle of non-discrimination has undergone a formidable evolution, both in its scope and in its interpretation and application. We offer three views of the prohibition of discrimination from some recent cases decided by three courts at different levels:
a) The ECJ, which in recent years has issued several preliminary rulings on non-discrimination between men and women in matters of social security, where the Court has found the Spanish legislation to be contrary to the Directives as it resulted in an indirect discrimination on grounds of sex.
b) The ECtHR, which has recently been applying a strict control of the prohibition of discrimination on the grounds of disability, limiting the State’s margin of appreciation and promoting a policy of full inclusion.
c) The Spanish Constitutional Court has incorporated both the doctrine of indirect discrimination and the assessment of discriminatory treatment based on disability, although their rulings have not been without controversy.

Singapore’s Work Injury Compensation Act: an indirect right to social security during a pandemic?

Singapore’s social security system is often lauded as a veritable alternative to the Western-style welfare state. Described as a “trampoline”, the system prizes self-reliance while intervening to enhance social mobility and maximise opportunities for the willing. Against this backdrop, the Work Injury Compensation Act (“WICA”) is a unique piece of legislation that quietly furthers socioeconomic rights and social welfare for workers. Through WICA, employees may lodge compensation claims for injuries suffered at work through a fast and simple procedure without having to prove fault on the employer’s part or commence a claim in tort.

I consider how WICA will evolve in application following the Covid-19 pandemic: How will Covid-19 impact the scope of compensation provided under WICA? Will a claim arising from an accident occurring while an employee was working from home qualify? What are the wider constitutional implications of these questions on equality and access to justice?

Legal Capacity of Persons with Disabilities in Indonesia: A Human Rights Perspective

Following the ratification of the Convention on the Rights of Persons with Disabilities (the CRPD), Indonesia, as a State Party to the Convention, adopted Law No. 8 of 2016 on People with Disabilities to show its commitment to protecting the rights of persons with disabilities. Despite this, people with cognitive disabilities are still denied equal rights to legal capacity. They are often treated as they are unable to make decisions and do not have will and preferences that deserve respect. This paper seeks to examine the compliance of Indonesia’s domestic laws with respect to legal capacity of persons with cognitive disabilities with the CRPD. It also discusses court decisions that denied persons with cognitive disabilities’ legal capacity, as commonly practised in Indonesia. While it acknowledges that reform should go beyond the legal framework, the paper offers legal and institutional reform to ensure the equal recognition of legal capacity for people with disabilities.