JUDGEMENTS

THE JUDGMENTS OF THE CONSTITUTIONAL JUDGES AND COURTS IN THE XXI CENTURY

By Lawyer Yulhma V. Balderas Ortiz- Doctor researcher in Public Law University of Rome “Tor Vergata”

The necessity of listening to the world citizens call, in particular the one coming from the poorest and weakest ones, victims of the high cost that has been paid to cure the wounds of the crisis we live (especially the Countries like Greece, Spain, etc.) where the citizens have seen taken away their fundamental rights, and who are asking for help from the justice organs, to get back that trust now lost towards the institutions, to receive a fast and efficient justice administration, who gives an always greater importance to the authority of the judges when in front of some of the arbitrary governments present in some of the state members of the International Community, and who still ask to get that trust back in the independence and professionalism of the judges and the laws.

So they should put in act those precious legal and forensic heritages (the lawyer, attorney, judge professions and with their noble ministry aimed to protect the rights of the citizens and cooperate with their intellect and their knowledge in good administration and law) to whom Giuseppe Zanardelli refers to in his work L’avvocatura (recently cured by the judge of the Italian Constitution Giuseppe Frigo, The forensic heritage of Giuseppe Zanardelli at the XXI century’s doorstep), along with Piero Calamandrei, through his work: Praise of the judges. Written by a lawyer, where the author particularly insists on the reason for the community of “parallel lives”: “the secret of justice is in a always greater humanity and in an always larger closeness humanity between lawyers and judges in the fight against pain”.

Pleas by those citizens of the world who represent the weakest parts of society and express that cry (a great cry that remained impressed in my mind like Munch’s painting) to a global level, concentrated principally on the topic “economical right”, in other words “it’s right balance and spread”, on the crucial topic in this difficult season of crisis. Regarding this the studies by the Vice President of the Italian Constitution Prof. Enzo Cheli result very useful: Il giudice delle leggi. La Corte costituzionale nella dinamica dei poteri, sull’operato delle Corti, where there is a meticulous analysis of this balance, consisting a huge challenge to the coherence and foresight not only of the legislators and the governments, but also of those whose Constitution at a global level give the difficult job of guaranteeing, under any circumstance, the compatibility of the laws with the fundamental principals on which the ordinances lay.

On this topic, in Europe in the different Constitutions of the EU28, the right to a proportionate retribution to the work done is guaranteed and is sufficient to satisfy the personal and family needs.

Circumstance that has risen now more than ever, in these days, through the recent sentences of the Italian, Greek and Spanish constitutional courts and the Courts of Strasburg and Luxemburg, in which we see an evolution in the reading.

In the past some European constitutional courts (amongst which we find the Italian one) on this topic they had established that even the pensions, like the retributions, must be adequate to the mutant value of the acquiring coin and such Courts asked the governments and the Parliaments to respect such principle. However since they were difficult times for the economy and for the public bills, the social rights started to suffer. Thus begun the season of re-liquidations and automatic cross-subsidies to the sound of sentences, defined “populist” and “balance-breakers” from nearly all of the political majorities of the ‘80s and of the last decade, who to answer left dead paper. A hard conflict was born between right and economy and a long arm wrestle begun between judges and politics, until the threat of financial failure of the European states convinced the courts to read differently the internal Constitution. Little by little the right to a proportionate retribution to the job done and sufficient to satisfy the personal and family needs and the sentences defined “balance-breakers” were overthrown in various States of Europe by Solomon-like verdicts aiming to the “equalization”, to “economical compatibilities”, to the “safeguard of the balance of the State balance”. Half way through the ‘90s, several Courts became the “realism” reign, and between judges, government and Parliament peace came through. “Loyal collaboration” took the place of strikes. But with the new millennium the economic-financial crisis begun to bite again and politics, to “save the European states in crisis, like Greece, Spain and Italy” took a bad turn on the railways pointed out by the “realist” Courts, who in 2015, tired of unheard warnings, accused the governments to have lost the “reason” in scarifying the right to “a free and dignifying existence” (even through an adequate pension) and have censured consequently opening a “hole” of several billions in the State’s balance. So that, even if broken, the Courts have made the scale tend again on the law’s right to a retribution proportionate to the job done and sufficient to satisfy the personal and family needs.

Another example that must be mentioned in this section is the recent sentence set out oversea by the Supreme Court of the United States regarding the sanitary reform in America. As we all know health is an inalienable right of every one, without any distinction of income. The principle on which it is founded in the concrete case the Patient Protection and Affordable Care Act, revolutions the access to medical cares for the American citizens. The bitter political and legal fight won by Obama against the lobbies of the insurances and the republican opposition ideally completes the circuit begun in 1935 by Franklin D. Roosevelt with the Social Security Act, and consolidated thirty years later with the introduction, under Lyndon Johnson, to Medicare and Medicaid, the sanitary federal coverage for the elderly and indigents. The law called Obamacare foresees the right and the duty (penalized with fines) for the nearly 48 million of people not ensured to create a policy with minimum cares guaranteed, along with cures for children up to 26 years of age. The Court, for the second time since it was changed in 2010, saved the law that represents one of the biggest heritages of Barack Obama. In this occasion, despite the conservatory majority, the maximum legal organism of the United States of America pushed away a huge attack at the public grants, key for the expansion of the policies to the less fortunate, main aim of the Obamacare. Today the Affordable Care Act offers assistance to millions of Americans who didn’t have any earlier. And the sanitary and insurance industries have already reorganized their business around the law’s existence. The American health care has been afflicted by enormous costs, wastes and holes of assistance, especially for the middle classes. All reasons, sure, to correct the reform in the future. Always less, though, a reason to go back and erase it.

With such courageous sentences the judges of the European and American laws are today contributing, in this climate of distrust generalized at a global level, especially in the weaker part of the world’s citizens, to give a “cultural persuasion” and a direction of sense that contributes in the level growth of general care of the social rights in an international context.

In this scenery we also find the general safeguard of the “family right:, asked by the world citizens, aiming to create their living conditions, essential for the full development of the family, fundamental cell of the society. Now the logic and necessary prerequisite to righteously safeguard the family and its rights, results being subject of study in the present research: the “right to a home”, that is a chronologically presumed condition for the full exercise of the “right to protection” against poverty and social exclusion, of the individual and of the family; the “right to privacy” and the “right to the inviolability of one’s domicile”, rights that cannot in any case be safeguarded if human beings become forced to live in the streets. In fact, we certainly cannot think that the dignity and integrity of the family nucleus can be safeguarded if the person becomes forced in the sad and desperate conditions that have been depicted by the movie The Pursuit of Happiness” (whose title refers to the declaration of Independence of the United States of America as written by Thomas Jefferson 1743-1826, where the inalienable rights of the human being are listed: life, freedom, and pursuit of happiness safeguarding) of 2006 directed by Gabriele Muccino, narrating the life of Chris Gardner, millionaire entrepreneur who lived intense days of poverty at the beginning of the 1980s, with his son and without a home to live grow him up in.

We cannot think of safeguarding the integrity and dignity of the family nucleus if human beings get relegated in the suburbs of the city, in a dump or a shack, in promiscuous conditions, like the ones told impetuously and with all their moral and material misery by the Italian movie Brutti, sporchi e cattivi (Ugly, dirty and mean) of 1976 (winner for best direction at the 29th Cannes festival) directed by Ettore Scola, who saw the great interpretation of Nino Manfredi, rewarded by the international critic.

NOTES:

1. Cfr. Maria Cristina Breida, Il caso Urgenda: un nuovo corso nella politica di riduzione delle emissioni inquinanti?, Il Sole 24 Ore, 7 luglio 2015.

1. V. web: http://www.cop21.gouv.fr/

1. Cfr. Pope Francesco, Laudato Si, Enciclica sulla cura della casa comune, Tipografia Vaticana, 2015.

1. Cfr. Jeremy Rifkin Economia all’idrogeno, Ecocidio e La fine del lavoro, Mondadori, 2003.

1. Cfr. Giuseppe Zanardelli, L’avvocatura, Discorsi (con alcuni inediti), curata da Giuseppe Frigo nell’eredità giuridica e forense di Giuseppe Zanardelli alle soglie del XXI secolo, Giuffrè Editore, Milano, 2003.

1. Cfr. Piero Calamandrei, Elogio dei giudici. Scritto da un avvocato, Ponte alle Grazie. 1999.

1. Cfr. Donatella Stasio, La Consulta fra diritto ed economia, Il Sole 24 Ore, 10 giugno 2015.

1. Cfr. Enzo Cheli Il giudice delle leggi. La Corte costituzionale nella dinamica dei poteri, sull’operato delle Corti, Il Mulino, 1999.

1. Cfr. Marco Valsania, Usa, ok della Corte suprema alla riforma sanitaria. Obama esulta, Il Sole 24 Ore, 25 giugno 2015.

1. V. http://obamacarefacts.com/affordablecareact-summary/