Judicial Crisis in Portugal: The Constitution in relation to the State, Social and Labor Movements/Crise judiciaria em Portugal: a Constituicao em relacao ao Estado e aos movimentos sociais e trabalhistas.
| Autor | Engelhardt, Anne |
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Introduction
The 'Tribunal Constitucional Portugues' provoked a flurry of debates concerning its role during the peak of the anti-austerity-movements in Portugal, between 2010 and 2014. The accusations culminated in the term 'juridical activism', (Fasone 2014a) meaning the 13 judges took an active political role in dealing with highly contested subjects such as cuts in the budget, wages, and the pensions of the Portuguese public sector. Concerning the legal yardsticks of equality, proportionality and reliability, the legal institution was accused of having made unpredictable and even unfair judgments (Ribeiro 2013). In some discourses the history of the Portuguese Constitution and several other institutional aspects are highlighted to explain this salient development during the European financial crisis. However, these studies fail to consider the role of anti-austerity movements in that same period and the influence that these protests, as well as the austerity measures in question, had on the judicial institutions. I argue that the inter-linkage between a serious economic crisis, the attempted solutions, and the rising social movements contesting these events, culminated in a judicial crisis--a point of conjuncture for different antagonistic actors and their (class) interests--creating several deadlocks and opportunities for political and social change in divergent directions.
Even critical judicial scholars tend to frame the Portuguese Constitutional Court (in the following quoted after Cisotta and Gallo 2014: PCT; Portuguese Constitutional Tribute) as a faceless institution, somehow political, but yet not affected by the cuts planned by the government or movements challenging new budget laws (see for example Fasone 2014a, Kilpatrick 2014). However, as this paper will show--the opposite is true: Even the judges were directly and indirectly affected by the outcomes of the budget laws and the negotiations with the Memorandum of Understanding (MoU) (Dias 2016). They were also reacting to the mass protests against it. On the other hand, authors whose research is focused on anti-austerity protests of the recent period (see for instance Baumgarten and Duarte 2015, Estanque 2015, Stoleroff 2013, 2015), neglect the impact that these movements had on state apparatuses and vice versa, thus neglecting the possible impact and (institutional) dynamics which can be generated by mass protests and mass strikes. At the same time, many articles that deal very critically with the role of the PCT, give evidence for links between social movements and the Constitutional Court. Often with a tone of annoyance about the Court being too political and giving in to the "tyranny of the majority" (Ribeiro 2013) or underpinned by the constant denial that social movements had anything to do with the judicial decisions (Dias 2016). Thus, the question is on the table: Is there any link between the anti-austerity protests in Portugal and the ruling of the PCT against certain austerity measures? What evidence exists in terms of the ruling of the Constitutional Court?
To answer these questions, the paper follows three goals: Firstly, to elaborate how and why anti-austerity movements and state apparatuses have to undergo a combined analysis--for this purpose, the materialist state theory of Nicos Poulantzas and its advancements will be introduced, as well as contemporary approaches to analyze social movements. Additionally it will be outlined how the Portuguese constitution was implemented after 1974/75 and how it changed since its installment. Secondly, different arguments about the active behavior of the PCT will be discussed and put in relation to the social-political and economic conditions of that period and the relation between the judicial apparatus, the national and the European state institutions. The term 'judicial crisis' will be introduced and discussed as a point of conjuncture in which antagonist political, economic and social interests and crises culminate and create several deadlocks. Finally, the questions of how and why the judges of the PCT became proactive against certain austerity measures, and how this activity is interlinked with mass protests, will be elaborated.
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The Context of the Debate: Crises, Austerity and Contestation
Portugal has a rich history of social movements, creative forms of protests and strikes. During the revolution from 1974/75, the working classes and social movements were able to inscribe parts of their interests, such as the right to strike, higher wages, universal suffrage, unemployment benefit etc. into the Portuguese Constitution (Sperling 2014). For a long time the Portuguese legal system was one of the most progressive worldwide (Fonseca and Domingos 1998). However, during the past decade, the ruling classes have been turning the wheel of history backwards. Casualization, privatization and the dismantling of the welfare state (Stoleroff 2015) have undermined the achievements of the social movements during the revolutionary period of the 1970s. Since 2011, new social movement networks have emerged, mainly organizing against precarious labor condition, an issue that the main trade union federations tend to neglect (Campos Lima and Artiles 2011). However, as the attacks on labor standards, jobs, and wages intensified during the financial and political crisis of the European Union, trade unions organized five general strikes between 2010 and 2013 and won several trials against the worsening of working conditions. Furthermore, since 2012, some austerity measures implemented by the government and the Troika were declared as unconstitutional by the PCT (Fasone 2014a).
This debate about the judgments of the Constitutional Court enters a country in which the medium wage is 25 per cent below the European average and where the human development indexes fell "from 29th place in 2007 to 43rd in 2013" (Accornero 2015, 36). The reason for the huge interest in the judgments of the PCT is twofold: On the one hand the conditions stipulated by international and European creditors for the rescue package were much more intense and had a deeper impact on the socio-economic landscape in Portugal, than for instance in Spain or Italy (Fasone 2014b, 3). On the other hand the success of several constitutional challenges had an impact on the negotiations between the Troika and the Portuguese government and thus "was accompanied by intense scholarly critique" (Kilpatrick 2015, 8). In the wake of the housing crisis in the US which shortly after triggered the Euro crisis in 2008/2009, the economies in countries like Portugal, Spain, Greece and Ireland suffered from a fast melt down (Moury 2014, 7; Esposito 2014, 15). Despite the very different reasons for this development, the populations and governments in these states have been declared guilty of corruption, wrong political and economic decisions and even for allowing too much democracy (Evert and Machold 2012). Faced with a state crisis, the governments in these countries opted for financial aid from the European Union (Esposito 2014, 15-16). Different new institutions emerged on the European level, such as the so-called Troika and the Euro-group. They are all based on alliances that actually have no legal admissibility in the EU-law and they were not elected by the European parliament, and thus cannot be made responsible for their farreaching decisions about whole state economies (Oberndorfer 2016, 563). Instead, these institutions testify to an enhancement of the executive state apparatuses on a national as well as on a European level (Buckel 2017, 36). Their decisions included the adoption of so-called Memoranda of Understanding with the states in questions; i.e. contracts in which the requirements for the financial supports are recorded. Before asking for conditional aid of 78bn Euro, the Portuguese government tried to solve the economic crisis on its own. From March 2010 until March 2011, it installed three so-called Pacts of Growth and Stability (PEC), which mainly included a higher VAT (2), cuts in the wages of the public sector, a restructuring of the health- and education sector, the closure of schools, hospitals, social centers and similar austerity measures (Stoleroff 2013).
Even before the European crisis emerged, scholars have been observing an 'explosion' of new laws, and governmental restrictions targeting citizens, in and around the Eurozone (Buckel 2016, 293). Along this line, the so-called 'Economic Governance' which was set up to standardize budget restrictions of EU member states was not imposed by the European Parliament and thus finds no legal basis in European Law (Buckel 2017, 20). Furthermore, the negotiations to set up conditional aid for 'crisis'--or so called 'PIIGS--states, embedded in the periphery of the Eurozone, were realized without even consulting the European Parliament (ibid.).
Against this background, the denial of the Portuguese Constitutional Court of several conditions set by the IMF, the EU commission and the European Central Bank, and that they declared these demands as unconstitutional comprehensively stir up uneasiness on the one hand, and a potential to challenge the ongoing de-democratization of national and regional institutions, on the other. Meanwhile, every attempt to dismantle democratic and social rights provoked new movements against austerity and for better democratic and living conditions (ibid.). Next to Spain, Greece and Italy, Portugal gave evidence for this claim (Accornero 2015, 38). The participation in public demonstrations has more than doubled from "2.4% in 2010 to 6.8% in 2012 [...] in Lisbon alone, the number of demonstrations increased from 244 in 2010 to 298 in 2011 and to 579 (an average of one every 15 hours) in 2012" (ibid.). In 2010, especially the affiliated trade unions of the 'Confederacao Geral dos Trabalhadores Portugueses' fCGTP), the biggest trade union federation, refused...
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