Law and the realisation of human rights: insights from Indonesia’s education sector

Abstract

Do justiciable legal frameworks for the protection of human rights (JLFPHR) promote the realisation of human rights? This paper considers this question by examining a set of recent Indonesian court cases related to the right to education. It argues that citizens in these cases successfully used Constitutional provisions related to education rights to challenge government policies that undermined these rights because: (i) they encountered judges sympathetic to their cause; (ii) they had access to support structures for legal mobilisation (SSLMs); and (iii) they engaged in simultaneous political mobilisation that created a broader political climate conducive to judicial activism and policy change. As such, it is argued, these cases confirm comparative findings that judicial activism and SSLMs are important preconditions for JLFPHR to contribute to the realisation of human rights through courts, at least in contexts where court cases are costly; and point to the important role that political mobilisation can play in creating a broader political climate favourable to judicial activism and policy change. In policy terms, the implication is that JLFPHR need to be accompanied by efforts to nurture SSLMs, judicial activism and strategies that blend legal and political mobilisation.