Justice Unrobed: Judicial Review of Austerity Measures in Portugal

Résumé 0

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.