Constitutional Judge, Social Rights and Public Debt Crisis

Abstract

The purpose of this article is to demonstrate the consistence and coherence of the case law of the Portuguese Constitutional Court concerning social rights during the public debt crisis. The Constitutional Court accepts that the legislature has a wide margin of appreciation to reverse the level of protection of social rights. This includes the right to a fair wage, the right to a pension, and the right to social benefits. However, the retrocession of social rights shall pursue a significant public interest and respect the principles of equality, proportionality and legal certainty comprised in the rule of law. When the Constitutional Court considers that these principles are violated, it does not hesitate to declare a norm unconstitutional, even if, according to the government, the norm or norms in question are essential in order to fight the economic and financial crisis. The so-called ‘case law of the crisis' has been strongly criticized. This study will mainly analyse and contest the arguments of the critics.