The small price for democracy and social rights

17 Jun 2014

It is not only citizens and trade unions who can voice their opinions against unfair austerity measures and budgets cuts. Constitutional Courts can act to. In Portugal, several times the Court has overruled government measures which would see workers squeezed to their limits. CESI Secretary General, Klaus Heeger, gives his take on the constitutional developments in Portugal...

The small price for democracy and social rights

How many court rulings will it take? In the aftermath of the European elections, the Portuguese Constitutional Court rejected government spending cuts for the sixth time.

In June 2012, the Court stated that since a plan to limit extra holiday and Christmas pay was targeted only at public sector workers, basic principles of equality were infringed. Four more judgements were to be delivered in 2013.

Among these, the Court defended the Portuguese people, in many cases jobless people, by banning measures which would cause excessive harm, such as a tax on unemployment benefits. Breaches of the principles of trust and dismissal without fair were the product of two more judgements.

This year, budget cuts, cuts to public sector workers, taxation of unemployment and sickness benefits as well as cuts in pensions paid to widows and widowers, forced the Court once again to step in.

These judgements place the constitutional court of a member state firmly behind workers and citizens and should cause us all pause for thought.

Even more so, it clearly states that laws and legal principles which lay the foundations for legal certainty, and therefore for our very democracies and the respect of our fundamental rights, are not at the free disposal of the political class – even in times of emergencies.

The Constitutional Court’s ruling is comforting. Fundamental rights, especially those on solidarity and citizenship, enshrined in countless national, European and international constitutions, basic laws, charters, conventions and covenants actually do have a meaning and a purpose.

The signals sent out to the entire EU indicate that these laws and principles may actually stand against free market principles and the “beyond-the-law-and-legitimacy-logic” of the economic adjustment programmes. At the very least, they show that the wold of economics and finances does not always necessarily have to prevail over social justice.

Here, the Constitutional Court seems more in touch with the needs of people than some of the politicians and government elected.

Reacting to last year’s overruling on pension reforms, Chancellor Merkel and President Barroso had said they were confident that “alternative measures” would be found and the immediate reactions of EU leaders to the latest court’s ruling consisted mainly in appeasing the financial markets.

According to the Financial Times, Portugal´s Prime Minster is “deeply concerned” about the judgement and, even more worrying, has obviously declared that he would “not allow decisions that ‘appear incomprehensible’ to reverse the important fiscal adjustment that Portugal had made over the past three years.”

This is an alarming approach.

One may argue in economic terms that the tiny glimpse of recovery has proven the austerity apostle right or, on the contrary, that given the current economic indicators, austerity driven policies alone will lead to even gloomier scenarios. But this debate is not purely economic; we have a very legal debate on our hands.

Legal certainty forms a strong part of the foundations of our democracies, our well-being and wealth and, in the end, any economic or fiscal activity we pursue.

If the law, its interpretation and application, is subject to the entire discretion of European economic and fiscal policies, our societies risk no longer being communities based on the rule of law. The absence of legal certainty and more fundamentally absence of democracy would be the consequence.

Perhaps, it is time for certain political actors to take a new perspective on these judgements.

The Portuguese court does not say that budgetary consolidation should not be pursued. It does not say that the memoranda of understanding – or any agreement between creditors and debtors- could not justify certain necessary reforms. And it does not say that cuts and reform in the public administrations may not be needed.

The Court simply states that if a constitution enshrines some basic rights and principles in black and white, then these rights and principles must be respected. This respect, just like democracy and the legal order, has its price. Compared to the benefits, this is a very small price.