Justice Unrobed: Judicial Review of Austerity Measures in Portugal
A Justiça sem Toga: Controlo Jurisdicional das Medidas de Austeridade em Portugal
The severe financial crisis which several European states have been facing during the last few years has generated a voluminous and highly interesting wave of constitutional adjudication, since the austerity measures taken by the States’ legislatures as a response to the economic recession were challenged before domestic courts under claims of human rights violations. The present paper will critically evaluate the relevant case law of the Portuguese Constitutional Court, with a view to examining the role of the judiciary in questions of resource allocation in a community, like the ones which lie behind such challenges. It will be argued that decisions on the allocation of resources must, first, respect the equal status of all citizens and, secondly, serve the common good in a way which benefits the community as a whole. The first requirement relates to the constitutional limits of the legislature’s competence, since the state is not empowered to act in violation of the equal status of its citizens; therefore, its observance can and must be ensured by the judiciary. On the contrary, the second requirement calls for an assessment of the various plausible answers, rooted on various conceptions of the “common good”; as such, it can and must be monitored through political debate and, ultimately, through representative elections. This entails that the argument that the judiciary do not address the second question is not one of deference to the political branches, but one of allocation of power between the branches of a democratic government: while courts are mandated to address the first (logically prior) question regarding the constitutional limits of the legislature’s competence, they lack the power to review the plausibility of measures of resource allocation, for example by employing proportionality analysis. In this respect, the relevant practice of many European supreme courts is regrettable.
Introduction; I. The nature of rights; II. Resource allocation and the authority of judges; (a) The equal concern requirement - the American approach; (b) The common good requirement; (c) Synthesis; III. The authority of judges as seen by the Portuguese Constitutional Court.
Jurisprudence of crisis; constitutional courts; authority of judges; nature of rights
A grave crise financeira que vários Estados europeus enfrentaram nos últimos anos gerou uma volumosa e interessantíssima vaga de decisões de Tribunais Constitucionais, uma vez que as medidas de austeridade tomadas pelos respectivos legisladores como resposta à recessão económica foram contestadas perante os tribunais nacionais com fundamento na violação de direitos humanos. O presente artigo avaliará criticamente a jurisprudência relevante do Tribunal Constitucional português, com o objectivo de examinar o papel do poder judicial em questões de alocação de recursos numa comunidade, como as que estão por detrás desses desafios. Argumentar-se-á que as decisões sobre a alocação de recursos devem, em primeiro lugar, respeitar o estatuto de igualdade de todos os cidadãos e, em segundo lugar, servir o bem comum de uma forma que beneficie a comunidade como um todo. O primeiro pressuposto respeita aos limites constitucionais da competência do legislador, uma vez que o Estado não está habilitado a violar o estatuto de igualdade dos seus cidadãos; portanto, o seu respeito pode e deve ser assegurado pelo poder judicial. Inversamente, o segundo pressuposto impõe uma avaliação das várias respostas plausíveis, ligadas às várias concepções de “bem comum”; como tal, pode e deve ser monitorizado através de debates políticos e, em última instância, através de eleições. Isto implica que o argumento de que o poder judicial não atalha a segunda questão não é de deferência para com o poder político, mas de distribuição de poderes pelos diferentes ramos de um governo democrático: se por um lado os tribunais estão obrigados a atalhar a primeira (logicamente anterior) questão sobre os limites constitucionais da competência do legislador, por outro não têm o poder de rever a plausibilidade das medidas de alocação de recursos, por exemplo, com recurso à formula da proporcionalidade. A este respeito, é lamentável a prática levada a cabo por muitos dos tribunais superiores europeus.
Introdução; I. A natureza dos direitos; II. Alocação de recursos e a autoridade dos juízes; (a) O pressuposto do igual tratamento - uma abordagem Americana; (b) O pressuposto do bem comum; (c) Síntese; III. A autoridade dos juízes aos olhos do Tribunal Constitucional Português.
Jurisprudência da crise; tribunais constitucionais; autoridade dos juízes; natureza dos direitos
The phenomenon of the European debt crisis needs no introduction. By now, we are all familiar with the devastating consequences of the economic recession with which certain member States of the Eurozone were faced, and with the bailout agreements between the EU institutions and the governments of such States1. These agreements provided the necessary spending cuts including, inter alia, cuts in salaries and pensions of public servants, higher taxation and a series of other austerity measures. These agreed measures were challenged before national courts under claims of rightsviolation. Most prominent and leading judgments amongst them were those issued by the Portuguese Constitutional Court2. After a period of reluctance, in which the Court upheld the impugned measures, a second wave of case law sprangruling that these measures were incompatible with fundamental principles of the Portuguese Constitution.
What I would like to argue today relates, firstly, to the nature of the rights which have allegedly been violated and, secondly, to the institutional authority of judges to adjudicate on issues like the ones brought before the Court. These questions are closely connected to each other, and I will treat them in turn.
I. The nature of rights
In many cases,the applicants put forward three claims in support of theirconstitutional challenges to the specific policy measures enacted by the Portuguese legislature to achieve the broad objectives of the financial support and assistance programmes. They argued that the impugned measures ran counter to:
- a general principle of legitimate expectations, which amounts to a claim to some form of economic security (Article 2 Const.)
- the principle of proportionality,which requires that equivalent but less intrusive measures should have been adopted (Articles 2 and 18(2) Const.)
- the principle of equality in the sharing of public burdens (Articles13 and 104 Const.)
Regarding the issue of legitimate expectations (princípio da proteção da confiança), it suffices to mention that to expect that one’s salary will remain uncut or that one’s job will remain unaffected by any changes in economy, society, or technology sounds as legitimate as to expect that a cataclysmic earthquake will not tear down one’s house or take one’s life. Leaving the financial crisis aside, it is worth wondering if any sensible judge would find that all in-house postmen in governmental services (the people who used to deliver internal post from one office to another) had a legitimate expectation to retain their jobs after emails were invented and widely used.
Now, the claim that one may have a right to legitimately expect that his or her salary will not be reduced arguably entails a claim that one has a right, under certain circumstances, not to have his or her salary reduced3. This claim, then, accords great weight to the question of proportionality as a test to determine the circumstances under which this alleged right is lawfully “infringed” (to borrow the terminology used by the Strasbourg Court). This, in turn, brings me to my main point in this part, because it directly relates to the issue of the nature of the rights compared.
Taking a closer look at the claims concerned, we see that they are grounded on what in human rights law are termed “social welfare rights” – that is, rights which relate to the protection of the physical and economic well-being of the members of a society (either individually or collectively). These rights are different from basic liberties (or fundamental civil and political rights, or first-generation rights, or whatever you wish to term that category of rights comprising liberties like the freedom of expression, of religion, or of association). The latter constitute the framework within which the status and relationships between members of the community develop. As such, they are not only constitutionally entrenched in theory but they are also immune from social, financial or other conjunctures in practice – indeed no financial or social calamity would justify any infringement on the freedom of speech or of religion. At the same time, protection of these rights in a community can be asserted in black-or-white terms: it may sometimes be hard to determine whether what one sees is black or white (and indeed, the ones called to decide it often get it wrong), but it can only be one of the two – it can never be grey. In other words, one cannot claim that a right – for example, the freedom of religion – is protected “to some extent”, “a lot”, “a little” or anything like this in one state: the right is either protected or not. And each act of the state in question either violates the right or it doesn’t: it cannot violate a right “excessively” or “moderately” or “to some degree4”
I doubt, however, that one could say the same with regard to the category of social welfare rights, like the ones invoked in the judicial decisions in question. For example (and knocking on wood just to be on the safe side), if Portugal went bankrupt, or if its GDP plummeted by 90%, would the Court still have ruled that salary cuts were contrary to the Constitution? I think that the Court has already suggested that it would respond in the negative because, firstly, it upheld measures of similar nature (but not of similar force) taken shortly after the sudden outburst of the crisis (see judgments no. 399/20105 and 396/20116) and, secondly, in its subsequent judgments (judgments 474/20137 and 862/20138) it held that the impugned measures were only in concreto (and not in principle) unconstitutional, due to the fact that no adequate proof of their necessity was furnished by the government. What is more, even when deciding that certain measures had actually violated fundamental constitutional principles, the Court weighed the restoration of those principles as less important in light of certain competing considerations, which compelled the effect9 of those judgments to be suspended (judgment 353/201210) or to be produced only ex nunc (judgment 413/201411).
If one, then, admits that radical socioeconomic fluctuations potentially alter the judicial outcome reached on a question of constitutional entitlements12, then one accepts that these claims are not decided on principle, but by relying on varying circumstances. Indeed, these claims, as well as the underlying social rights on which they are grounded, pertain to the process of resource allocation in a society: they seek to inform our decisions as to how scarce resources of a community are to be distributed among its members. As such, these rights are highly dependent on the relevant demand and supply of resources in a society at each given moment; if the supply of a resource shrinks, then the demand will inescapably have to adjust accordingly. Therefore, a severe financial crisis like the one which struck Portugal may reasonably be addressed by taking measures which modify the level or the model or the rationale of resource allocation in the society. This, in turn, means that the extent to which social welfare rights are realized in a society depends on the size of the available state resources and, most importantly, on the political choices of the elected government regarding resource allocation. As a result, the social right to employment or health care or housing is realized to varying degrees under different governments, in the sense that, depending on the current state of the economy and the socio-economic program of each governing party, different governments subscribe to different (richer or less protective) notions of social welfare rights.
The question, then, becomes who and how should make the choices regarding resource allocation in a constitutional democratic state. In other words, what part should the different branches of government (to put it simply: the legislature and the judiciary) play in the decision-making process when it comes to resource allocation?
II. Resource allocation and the authority of judges
I will submit here that our fundamental conceptions of democracy should lead us into assuming that the political branches of a democratic government should have the final say on questions of what the common good is, and therefore how resources should be allocated among the members of the society13. Indeed, these questions touch upon public policy issues for the tackling of which political leaders are selected by the electorate: politicians are selected by their constituents to choose and arrange, in the way they deem best, how the economic and social life of a community is to be run, and they are held politically accountable for their choices. Likewise, the electorate bears the economic and social consequences for its political selection. Under this scheme, the political branches of government are entitled and required to make choices as to whether, for example, to give precedence to health over education or over employment. In fact, this process of decision-making holds equally when it comes to allocating funds (e.g. subsidizing one sector of the economy instead of another) or reducing benefits and pecuniary resources (e.g. making budget cuts). Consequently, it falls upon the electorate to assess and ‘judge’ the politicians for their choices in the subsequent elections. Put simply, questions of policy are to be answered by policy-makers (elected representatives of the people) and reviewed by the polis (the community) in its entirety.
Clearly, the interesting question is how this choice should be made by the political authorities; in other words, whether there are constitutional constraints upon the political branches of government when making their policy decisions. And the answer is in the affirmative: allocation of resources – which, it must be noted, holds equally for distribution and for deprivation of wealth (presumably in times of economic prosperity or recession, respectively) –, must:
- firstly, respect all citizens’ fundamental rights, that is not compromise the equal status of all citizens, and
- secondly, serve the common good.
Let us examine these requirements of resource allocation in turn.
(a) The equal concern requirement– the American approach14
The first requirement essentially ensures that the policy-makers abide by the framework outside of which no political decision may be taken, for it would deny the equal status of citizens within the community. In other words, no decision may be taken lawfully, if it is based on arbitrary or discriminatory classifications among the members of society who receive the benefits (or bear the detriments) of the decision. This relates to the rule of equality of all citizens, in the sense that every person has a right to expect that his or her welfare will be considered with equal concern and respect in the decision-making process regarding resource allocation (or any other matter in society), and that (s)he will not be discriminated against on the basis of unacceptable criteria. These criteria are especially those touching upon a person’s fundamental freedoms – for example a criterion of in what (if any) god one believes, or what (if any) thoughts one expresses – but are not necessarily limited to them: for example, a cut in unemployment benefits only of the citizens whose last name begins with an “A” is also discriminatory, for it is based on a criterion which is “irrational and wholly arbitrary.15”
However, in most European jurisdictions the equal protection guarantee of the Constitution is increasingly becoming a major doctrinal tool for analyzing, and sometimes striking down, economic and social measures which are unrelated to traditionally suspect classifications (such as race). A closer look at the prevailing judicial practice reveals a general methodology which virtually all courts use to resolve equal protection disputes. Broadly speaking, equal protection claims involve a challenge to laws that allocate benefits or impose burdens on a defined class of individuals. The plaintiff in these cases claims that the government has drawn the line between the favored and disfavored groups in an impermissible place. Of course, the fact of treating individuals differently cannot invariably give rise to an equal protection violation. Thus, the central question in equal protection cases involves deciding whether, under particular circumstances, a challenged classification is impermissible.
In addressing that issue, the approach of the Supreme Court of the United States has focused on three basic questions: First, how has the government defined the group being benefited or burdened? Second, what is the goal the government is pursuing? Third, is there a sufficient connection between the means the government is using and the ends it is pursuing? When reviewing classifications in the context of state social and economic regulations, the U.S. Supreme Court has consistently applied a form of scrutiny called “rationality review”. Under this method, the reviewing court asks whether the line the government has drawn is rationally related to the achievement of a permissible government purpose16. In other words, to survive equal protection review, a classification must bear some connection to a permissible government end. But when is a classification sufficiently related to justify conferring benefits or imposing burdens on the basis of the difference it tracks?
In almost all cases, the classification will not be perfectly efficient but will be either overinclusive (it will disadvantage a larger class than is needed to achieve the state’s purpose) or underinclusive (some people will not be disadvantaged even though the failure to include them undermines the achievement of the state’s interest) or both. According to the U.S. Supreme Court, the equal protection clause does not require the state to demonstrate that every member of the disadvantaged class possesses the trait relevant to the state’s objective. Indeed, such a test would make all legislation virtually impossible, for almost all laws group people together based on generalizations that do not universally hold. It is, therefore, sufficient to uphold the classification to show that it advances the state’s purpose to some extent. In the same vein, the Court has sometimes said that the equal protection clause permits the legislature to deal with one problem at a time or to proceed step by step18.
In practice, the application of the rational basis review has usually19 led to validation of the legislative scheme, particularly in cases involving what the Court sees as straightforward economic regulation20. Differences in treatment can be justified by relevant differences between individuals and a difference is relevant so long as it bears an empirical relationship to the purpose of the rule21. Notice that the requirement of a relevant distinction provides no guidance as to how the social costs of achieving the state’s objective are to be distributed when different distributions are reasonably efficacious in achieving the state’s goal. Nor does it provide any protection against the concentration of extreme costs on a small group even when a different distribution of the costs over a larger group might be less burdensome for each targeted individual22.
Admittedly, this version of the rational basis requirement becomes meaningless unless some restriction is placed on the kinds of purposes the legislature may pursue23.What makes a legislative purpose invalid under the equal protection clause? There are some purposes that are forbidden by other constitutional provisions: presumably a classification designed to accomplish one of those independently forbidden goals would be unconstitutional as well. For example, Article 41 of the Portuguese Constitution provides for the freedom of religion. Thus, if the state denied a generally available government benefit – for example, drivers’ licenses – to a class of people because of those individuals’ religious beliefs, that law would be unconstitutional. But in such a case, reference to the general rule of equality before the law (under Article 13 Const.) would seem superfluous: A reviewing court could simply rely on the substantive constitutional provision to invalidate the law. Does the equal protection clause of its own prohibit the government from pursuing certain ends? If so, what ends does it prohibit?
My thesis is that the government is barred by the equal protection requirement to deny a benefit or impose a burden on a class of people because it disapproves of their beliefs or status24. Nothing could be a plainer violation of the principle of equal concern than acts of government that exhibit blatant prejudice25 (e.g. assumptions of supposed superiority of one caste over another). Similarly, the equal protection clause does not tolerate classifications on the basis of an individual’s chosen lifestyle26. Individuals have a personal responsibility to define success in their own lives and no state that diminishes a person’s capacity to take charge of his own life can claim that it embraces an acceptable conception of human dignity27.Thus, it is unconstitutional for the legislature to determine that one way of life is preferable to another and therefore more worthy of support. It would be unconstitutional, for example, for the legislature to subsidize small family farms, but not large-scale industry, on the theory that farm life is “wholesome”. Similarly, it would be a violation of the equal concern requirement for a state agency to provide health insurance to the children of its married employees but not to the children of its unmarried workers, on the theory that marriage is an essential component of the ethical culture that society deems best. In short, government attempts to discourage certain lifestyles by means of imposing special burdens or withholding benefits violate the equal concern requirement.28
This aspect of the method by which resource allocation in a society is decided suggests that the political branches of the government have no authority, within the framework of operation of a constitutional state, to decide a resource allocation in violation of the rule of non-discrimination. Therefore, there should be no doubt that courts can and must review the observance, on the part of the government, of the rule of equality, for it relates to the respect of the constitutional limits imposed on the government’s power. The requirement that the government does not exceed its legitimate authority is indeed a matter of constitutional justice, and as such it can (and must) be resolved by a court29. Indeed, this is what the role of (constitutional) courts boils down to: ensuring that all exercise of government on behalf of the state (all state acts, if you wish) falls within its constitutional boundaries; this means that, in making any choice of policy, the government respects the equal status of all citizens. Under the scheme which I describe, the essential function of the court is to verify that the choice made by the political branches – the one of zillion alternative choices a political branch could make for any given problem – does not compromise the equality of citizens. In this process, the court must argue, persuade, and prove why an act of government (a political choice), irrespective of its merits, fails to abide by the obligation to accord equal concern and respect to all citizens. After all, the constitutional requirement for reasoned judgments reflects precisely the idea that good reasons must be given for a democratically legitimated choice not to be implemented30.
(b) The common good requirement
Does this mean that these questions of policy may be answered in a way which does not purport to reflect the common good in the community? Of course not. This is what the second requirement calls for: that resource allocation should serve a notion of the common good. However, in any given society there may be various – if not infinite – conceptions of what the “common good” is or how it will be best served, and many conceptions among them are reasonable, which means that they can be rationally defended. For example, one opinion (advocated by, say, one political party31) could be that resources are best allocated if funds were taken from the public sector and used for the attraction of private investments, or if funds were taken from industries and used to subsidize the agrarian sector, or anything under the sun. Indeed, all policies advocated by all voices in a political debate (whether in the government, in the opposition, or among the citizens) claim to further the public good. But precisely this variety of conceptions of what the public good requires proves that these are not questions that can have only one reasonable answer32 and any democratic constitutional state should enable and encourage debates on these issues, both in and outside the legislature33. The requirement that a decision serve the public good is not of the same nature as the requirement that a decision serve constitutional justice, and therefore its respect cannot be reviewed in the same way. It is a requirement to be monitored and fulfilled by political debate and, ultimately, by the (s)election of the decision-makers by the whole citizenry. This is, after all, why citizens’ representatives are (s)elected: to govern the community in a way which they deem good.
My point – which, I hope, should be clear by now – is that, essentially, we are faced with two wholly separate questions, which should accordingly be addressed by two different branches: one question is whether a choice on a matter of resource allocation complies with the constitutional framework of the community, the other is whether the choice advances the common good. The former question can only be answered in one way, and indeed in a way rooted on a theory of constitutional justice – it is a question of principle and, as such, it should be answered by the judiciary. In contrast, the latter is a question of policy, and therefore it invites many reasonable answers, depending on our conception of the “common good” and on the subject which gives the answer – as such, this question should be addressed to the political branches of government and, ultimately, to the electorate34. In other words, when it comes to the assessment of the requirement that a policy choice serve the public good, it is not that courts must defer to the political branches (and the electorate) – it is that courts have no authority to make such assessments in the first place35. Conversely, it lies outside the constitutional power of the political branches to make decisions which violate a fundamental right or fails to accord equal concern and respect to all citizens.
In fact, this order reflects a logical sequence between the two questions: the question whether a legislative enactment serves the public good presupposes an affirmative answer to the question whether that enactment is lawful. To give an example (and leaving international law aside for a moment36), a response to the severe financial crisis might have been to extradite all population living below the poverty line – in fact, some people, I fear, based on their economic or social perceptions, might embrace this measure as an effective way to advance the “common good.” Irrespective of whether this would indeed be a good solution, it would certainly be (fundamentally) unlawful, and as such it should be struck down by a court of justice. Conversely, raising taxes on the middle class may arguably not be an advisable way to react to the financial crisis – and many economists or other citizens may have solid grounds to believe it will fail to promote the “public good”– but it should be upheld in court, for it can hardly be seen as an “unlawful” legislative decision.
III. The authority of judges as seen by the Portuguese Constitutional Court
Now, let us apply this scheme to the question of austerity measures introduced by the Portuguese government, as reviewed by the Portuguese Constitutional Court. What emanates from secondary sources and translations of the pertinent case law37 is that the Court – in its landmark judgments 353/201238 and 187/201339, as well as in subsequent judgments such as 862/201340 and 413/201441–upheld the argument that the cuts were contrary to some concept of (proportional) equality between, on the one hand, the civil servants and the pensioners, who bore the consequences of the salary cuts, and, on the other hand, the other citizens42.In ruling this way, the Court erred in analogizing public with private sector servants, not because their position is different in terms of public security, trust or benefits but rather because their employer is different43. In principle, the same occurs with respect to private sector businesses when the latter are in economic trouble. If we were to follow the equation between the two categories for reasons of equality, the salaries of public servants should be cut in such circumstances to break even with those of their private sector colleagues. Hopefully, it is clear by now that a judgment would trespass into questions of resource allocation if it stated that the cuts on salaries of public servants amount, for example, to indirect taxation and that they should be mitigated, therefore, by taxation on the rest of the population44.
What is more, the Portuguese Constitutional Court went on to rule that the austerity measures taken were essentially affecting “disproportionately” the right of the civil servants not to be dismissed or not to have their salaries and pensions cut45. Given that – alas! – the state funds would not change (that is the financial figures would not improve by a wave of a magic wand), this inescapably meant that resources from other beneficiaries (other citizens, broadly conceived) had to be transferred to the benefit of civil servants: in this sense, the Court indeed advocates for a certain method of resource allocation46.
More importantly, the Court ruled that the measures ought to be struck down because the government had failed to argue plausibly that the measures taken were indeed proportionate to the harm suffered by the civil servants or the pensioners. There are two conclusions drawn from this argument. First, that the same measure can fall within or outside the government’s constitutional authority (and therefore be compatible with the Constitution or not), depending on (a) the substantiality of the “public interest” which the government seeks to advance and (b) the intensity of the setbacks suffered by the groups targeted by the measure. Indeed, if the financial crisis had been harsher or the salary cuts had been less severe, the measures would be potentially upheld by the Court. And secondly, that it falls upon the government to prove that the impugned measures merit precedence over the individual rights infringed.
Let us go back for a second to the example of the government deciding to extradite all poor citizens in order to preserve resources: this measure would always be considered as falling without the government’s legitimate authority (and therefore unconstitutional), no matter how compelling reasons – economic analyses, sociological reports or anything under the sun – the government put forward to support it. It would be a measure instrumentalizing people to serve other ends, and it would deny the targeted persons’ equal standing with all other members of the community. At the same time, it would fall upon the Court to argue that the extradition measures exceed the constitutional powers of a democratic government. It would obviously be fairly easy in this fictional example, but the point is that it is the Court which should argue in a reasoned manner that a measure fails to observe individual rights or the equality between citizens; it is not the government which bears the onus of proving that the measure does not violate the principle of equality or the rights of individuals47.
Coming back to the actual case of the austerity measures in Portugal, the difference is striking. Firstly, whether or not the same measures are a violation of constitutional rights is not a single-answer question decided by reference to unconditional propositions but rather depends on variable circumstances such as economic contingencies emerging amid the crisis. Secondly, the government bears the onus of proving why these measures must be upheld by the Court. The question, then, becomes: is this judicial operation more akin to an inquiry of principle or of policy? Does it investigate whether the governmental action is lawful or does it explore, instead, whether the legislature came up with an advisable course of action in furtherance of the public good? Doesn’t the reasoning advanced by the Court constitute an assessment of the quality of the decisions taken by our elected representatives, an evaluation which is alarmingly resemblant to a second-instance decision with regard to the wisdom or desirability of the resource allocation selected by the government? Arguably, it does constitute such a second-instance assessment. In fact, given that it falls upon the government to prove the plausibility of its actions, the government is called effectively to persuade the Court that the action taken was the best among many which could alternatively have been taken – and this task of persuading arguably resembles all too much the task of politicians before their constituencies48.
Indeed, if it is the Constitutional Court which decides whether a measure strikes a fair balance among the numerable conflicting or diverging interests within a community, then arguably we would need no elections at all: we could draw by lot an executive committee and let it issue decision after decision, feeding the Court with cases and hoping that some of them would eventually please the bench. If the judicial review undertaken by courts with respect to constitutional rights is perceived as broadly as the Portuguese (and other) Constitutional Court(s) suggest, then every piece of legislation potentially gives rise to a human rights issue, and therefore the judiciary will be called to decide on virtually any question of public policy, from fines for parking violations to the fluctuation of interest rates49. Furthermore, in doing so, it will be bound to employ a standard that is much more intrusive than mere rational connection, just as the Portuguese Constitutional Court did in the austerity cases50. Such a scheme, however, would tilt the institutional balance between the legislature and the judiciary impermissibly in favor of the latter: the courts would effectively not act as fora of review of the acts of public authorities, but as bodies of appeal of policy choices made by the representative and accountable officials – a task for which courts lack the resources, the know-how and (most importantly) the legitimacy.
What this paper has attempted to argue is not that courts must perform no judicial review of political decisions, nor that they should defer, as a matter of comity or who-knows-what, to the political branches when it comes to “political questions” or other sensitive subjects; on the contrary, a Constitutional Court can and must review all decisions which may compromise the equal concern and respect owed by the state to the citizens. This is in fact, a second “sin” committed by the Portuguese Constitutional Court: when it was constitutionally obligated to uphold the equality of citizens by ruling that a ban on same-sex marriage was discriminatory against same-sex couples (in 2009)51, it preferred to abstain from exercising its mandate, based on an ill-conceived notion of “deference” when it comes to “political questions”52. But ruling that the question of equality of citizens must be decided in the courtroom, while the question of implementing spending cuts must be decided by the legislature, is not a matter of some fluctuating and undefined notion of “deference”; rather it is a matter of institutional balance that is of proper allocation of power between the branches of a democratic government. And while it will always be unlawful to deny same-sex couples the benefit of founding a family enjoyed by opposite-sex couples, no matter what the legislature regards as “good” or “wise” public policy, it makes all the difference in the world whether the legislature believes that it is public spending which must be reduced or not.
The Portuguese Constitutional Court – like most of its European counterparts, I fear – misplaces its constitutional boundaries, depriving citizens both of their constitutional rights’ protection, when this is most needed, and of their political voice, when this is most essential. We must resist this.