The small price of democracy
By Klaus Heeger
The Portuguese constitutional court recently 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.
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Four more judgements were 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.
This year, budget cuts, scaling back the number of public sector workers, taxation of unemployment and sickness benefits, as well as cuts in pensions paid to widows and widowers, saw the court step in once more.
These judgements place the constitutional court of an EU member state firmly behind workers and citizens and should give us all pause for thought.
In addition, the court 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 emergency.
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 world of economics and finance 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 governments elected.
Reacting to last year’s overruling on pension reforms, German chancellor Merkel and Jose Manuel Barroso, European commission president, said they were confident that “alternative measures” would be found. The immediate reaction of EU leaders to the court’s latest ruling consisted mainly of appeasing the financial markets.
Portugal's prime minster, meanwhile, said he is “deeply concerned” about the judgement and declared, according to the Financial Times, 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.
A very legal debate
One may argue in economic terms that the tiny glimpse of recovery has proven the austerity apostle right or, 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 its application is subject to the whim 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, the absence of democracy, would be the consequence.
Perhaps, it is time for the 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 memoranda of understanding – or any agreements 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 – yet compared to the benefits, it is a very small one.
The writer is Secretary general of the European Confederation of Independent Trade Unions, CESI