A atuação do Tribunal Constitucional Português no contexto de crise: a supremacia judicial em foco

Abstract

This research is based on the analysis of the decisions of the Portuguese Constitutional Court in the context of what has been called of Jurisprudence of crisis. We analyzed the judgments of this Constitutional Court that judged the State Budget Laws for the years 2011, 2012, 2013 and 2014 in order to verify if the Court incurred in judicial supremacy. For that, the concept of Jeremy Waldron was adopted as a theoretical framework on which kind of judicial action, in the accomplishment of strong judicial review, tends to supremacy. Therefore, the objective was to verify if, by analyzing the allegation of offense to social rights, through the austerity measures present in the State Budgets, the Court consented to the requests for the judicialization of these rights and adopted a position of judicial activism. The research method adopted was the empirical-qualitative one, so that the theoretical framework operated as a measurement for reach the results and realization of the inferences. In this way, it was tried to test if the performance of the Portuguese Constitutional Court fits the Waldron concept. Thus, through this empirical approach, it was verified that the Court, in the specific scope of the Jurisprudence of the crisis, did not incur judicial supremacy. It was observed that the Court, in all the decisions, considered the public interest consubstantiated in the necessity of overcoming the economic crisis, restricting its analysis to the existence or not of specific offense to the social right submitted to its appreciation.