Pravni Zapisi (Jan 2014)
Constitutional court protection of economic and social rights during the economic crisis
Abstract
The author's intention was to point out the importance of constitutional court protection of social and economic rights at the time of economic crisis. Social and economic rights depend on a country's economic possibilities and resources. Those possibilities and resources, together with the overall economy, are called in question during the economic crisis. That is why state authorities legitimately take various measures to preserve the former economic position or to at least minimise the negative effects of the crisis. Those measures are often contrary to the state's constitutional obligation to preserve the achieved level of human rights protection. Thus, the question of constitutional court protection arises as well as one of the criteria to be employed by the court in review of such measures. In this article, the author first presents two decisions of the Indian Supreme Court and the South African Constitutional Court because of their interpretation of the content of social and economic rights, their importance, as well as the nature of state obligations arising from them. A presentation of a recent decision of the Portuguese Constitutional Court concerning constitutionality of legislative measures aiming at combating the economic crisis follows. As the Portuguese Constitutional Court clearly indicated, the legitimate fight against the crisis needs to keep in mind the tools the state uses to resist the crisis, meaning that the measures undertaken, even if they are temporary, cannot go contrary to the constitutional principles of proportionality and equality. Finally, a decision of the Serbian Constitutional Court is analysed. In that decision the Constitutional Court declared unconstitutional a provision of a law relating to the content of an economic right since it was contrary to a generally accepted international standard accepted by Serbia through ratification of a convention of the International Labour Organisation. Since Serbia still has not escaped the economic crisis and that it can be expected the state will take measures to combat it, the author tried to point out the importance of constitutional court protection and the criteria which the Serbian Constitutional Court could utilise in the course of judicial review of such measures.
