Introduction

THE CONSTITUTIONALISATION OF SOCIAL SECURITY RIGHTS AS THE WAY TO A SOCIAL JUSTICE STATE

Dr. Marcin Wujczyk

 

The debate on social security rights has been arousing strong emotions for years. Opinions have been voiced  negating the existence or the need to distinguish such rights, and others indicating the necessity to treat social security rights on an equal footing with other human rights. The economic crisis, which has affected numerous European countries in recent years, has made this debate even more topical. The purpose of this study is to re-examine the issue of social security rights and their significance.

It seems that during the assessment of particular social security rights, the most important role is played by the contents of international instruments and their significance in the system of international legal standards. It should be noted that, although many instruments of that sort exist at both a global level (the International Labour Organisation should be considered the most important organisation creating social security rights standards) and a European level (the most important international instruments seem to be the European Social Charter established within the legal system of the European Council, along with the European Charter of Fundamental Rights binding for member states of the European Union), social security rights have yet to obtain sufficient and effective protection in the system of international legislature. In consequence, the position of social security rights still depends on whether they are guaranteed in the internal legal systems of particular countries. And this is the perspective from which the issue of social security rights have been analysed in this study. The detailed presentation of all national legal systems from the perspective of social security rights is on the one hand impossible (due to, among other things, the specificity of many solutions comprising the content of social security rights), and on the other hand ineffective (excessive casuistics would not allow conclusions to be drawn). For that reason, the authors of this study have focused on the position of social security rights within the regulation of the most important instrument regulating the system of the state, i.e. the constitution. The adoption of the constitutional perspective has many advantages. Firstly, an analysis of the constitutional provisions allows the position of social security rights within the framework of human and civil  rights to be assessed according to a particular country. Thus, it is possible to obtain an answer to the question about the significance of social security rights in the legal regulations of the national law. Secondly, the constitutional provisions, and in particular, interpretations made on their basis by constitutional courts of particular states, indicate the minimal contents of social security rights. Finally, the analysis of the contents of constitutional provisions presents an opportunity to look at social security rights cross-sectionally, i.e. to include the perspective of international instruments ratified by the state, and of instruments of lower rank than the constitution.

The studies included in this collection allow for numerous conclusions on the perception of social security rights in the system of the national law of European countries. Furthermore, it must be noted that the variety of outlooks on social security rights by particular legal traditions still raises a number of questions and doubts.

In reference to the debate, mentioned at the beginning, on the issue of social security rights, it should be indicated that the mere act of defining the meaning of this notion raises doubts. The starting point may be the definition developed by the International Labour Organisation. For this institution, “social security is the protection that a society provides to individuals and households to ensure access to health care and to guarantee income security, particularly in cases of old age, unemployment, sickness, invalidity, work injury, maternity or loss of a breadwinner.” The core idea of social security rights is also well conveyed in the definition quoted by Greg Strban, who indicates that “social security is a public system of income protection in case of its loss or reduction (e.g. due to old age, invalidity, decease, accident at work or occupational disease, sickness, maternity or unemployment) or increased costs (e.g. for health care, raising of children or long-term care services), organised through a process of (broader or narrower) social solidarity” (Greg Strban, Constitutional Protection of the Right to Social Security in Slovenia).

  It is worth mentioning that social security rights differ from civil and political rights, the position of which has been well-established. The latter ones are mainly based on the necessity to provide certain liberties and freedoms of actions, whereas the social security rights provide the individual with the entitlement to demand that the state undertakes actions to guarantee the individual  the appropriate (minimal) living standards for that individual and his or her family members.

The majority of constitutions analysed in this collection has a reference to social security rights. In most cases, however, they lack a clear reference to the notion of social security rights. Yet, constitutional provisions mention the existence of specific qualifying entitlements as the social security right. Frequently, they also use notions that should be assumed to cover the term of social security rights. These are terms such as, for example, social justice (Estonia, Poland), or social state (Germany, Russia). Those notions frequently constitute the basis for distinguishing a series of social security rights or giving them specific wording. Some social security rights are regulated by instruments separated from the constitution that are, however, of a constitutional status (e.g. in the Czech Republic, numerous rights that have the character of social security rights are regulated by the Charter of Fundamental Rights and Freedoms). Yet, there are some constitutions in which social security rights have not been clearly regulated (in the case of Germany).
The rights regulated by constitutional provisions, most often considered to comprise the contents of social security rights, include the right to acquire the means of one’s livelihood by work, the right to adequate material security in old age, during periods of work incapacity, and in the case of the loss of their provider, the right to the protection of health and the right to free medical care and to medical aid on the basis of public insurance, social protection of family, the right of parents who are raising children to assistance from the state and the right of women for special care during pregnancy, the right to protection of health, voluntary and local government welfare services promotion, and assistance in finding employment.

With a view to the above remarks, an attempt may be made to define social security rights as a system of guarantees that is to provide help in spheres related to health, financial and accommodation needs, as well as related to the loss and search of work. The analyses to date have showed that this help is guaranteed by the state, yet there is nothing to prevent the duties concerning the execution of social entitlements from being imposed on private entities.

 It often happens that the property right is included in the group of social security rights alongwith other typical social security rights (see the case of Hungary). It seems to be rather the entitlement securing the execution of social security rights. Sometimes, social security rights include the right to free choice of profession and training, or the right to work (the case of the Czech Republic and Estonia). The question arises whether such an understanding of social security rights is not too broad. Such rights should be rather rated among the employee rights than social security rights. On the other hand however, the typical social security rights are often inseparably linked with the right to work. It is therefore worth considering the adoption of the broad understanding of social security rights. It would contribute to the strengthening of the institution of social security rights and would support the implementation of regulations that guarantee other social entitlements.

In some Constitutions, social security is indicated, not as a notion, from which the rights for particular individuals arise, but only as the objective the state should strive to attain (this happens in Hungary). Such an attitude should be considered disputable. Its definite advantage is the presentation of social security rights as entitlements of a dynamic character, i.e. such that should be continuously developed. On the other hand, this solution poses a serious threat that those rights will not be guaranteed at the minimal level. The lack of the possibility to derive a specific entitlement from the basic law carries the risk that state authorities, in the process of creating the law, will not endeavour to grant the real entitlements to citizens within the social guarantees. It is worth considering whether constitutional norms should not combine both of the above solutions, i.e. on the one hand include minimal securities of social security rights, and on the other hand, order that they be continually developed, taking into account the state’s current economic situation.

A question should be posed – what should be considered in identifying the scope of generally accessible social security benefits. It seems that, above all, an appeal should be made to human dignity. Dignity may be considered to be a moral and spiritual value, inextricably linked to mankind, finding its expression in the conscious and responsible self-determination of one’s life. The above constitutes a basis for demanding respect for that value from other entities.  An unambiguous definition of the notion of dignity seems impossible to be formed. It is differently interpreted and explained. A great thinker of the Enlightenment era, I. Kant, posited that “humanity is itself the guarantee of dignity. In consequence a human being may not be used by anybody (…) as a means but should be always treated simultaneously as the aim and this is exactly the expression of dignity”. (I. Kant, Critique of practical reason, Warszawa 1953, p. 61). Human dignity plays a special role in determining the limits of rights and liberties to which an individual is entitled to. Thus, it constitutes the foundation on which the system of subjective rights of humans is constructed, or in broader sense, the legal system, the central element of which is the individual. As F.F. Segado observes, “dignity and rights do not exist at the same level. Dignity is the ultimate value. It means (…) that even a person who behaves dishonourably may not be deprived of the same dignity, equal to any other person. Therefore, dignity is the source of all the individual’s rights, regardless of their nature – arising precisely from the dignity inherent in the human being.” (F.F. Segado, Godno¿¿ cz¿owieka jako najwy¿sza warto¿¿ porz¿dku prawnego w Hiszpanii (Human Dignity as the Highest Value of the Legal System in Spain) [in:] Godno¿¿ cz¿owieka jako kategoria prawna (Human Dignity as a Legal Category), eds. K. Complak, Wroc¿aw 2001 pp. 180-181). The position that dignity constitutes the basis of social security rights allows one to say that social security rights should be granted at least to the extent that would prevent the violation of dignity in the understanding above. In my opinion such a violation is depriving a homeless person of the right to accommodation, or depriving the families without adequate livelihood of social welfare. Furthermore, it is unquestionable that somebody may be denied health care. The possibility to obtain help from the state in case of illness should be considered to be one of the most basic entitlements arising from the essence of human dignity.

In assessing the scope of acceptable restrictions of social security rights, one should be guided by the principle of proportionality. Due to this principle, all restrictions should be made only to the extent necessary to achieve legitimate purposes.

Finally, when determining the scope of social security rights, the interests of particular individuals and the public interest should be taken into consideration, and an appropriate balance between them should be kept.

Some concern may be raised by the fact that in many constitutions the right to use numerous social security rights has been guaranteed solely for citizens of that country (see the case of Slovakia). This solution is justified mainly by the fear of excessive financial burdening of the budget. It seems that this is just the range of entities entitled to use social security rights is one of the most crucial issues, which should be amended in national legal systems. This is such an important issue since nowadays there is an ever-greater flow of citizens between particular countries. This substantial migration results in the formation of big groups of immigrants deprived of the right to social security in the place where, in reality, they have their centre of vital interests. What is more, in the face of the ongoing economic crisis, it is possible to observe the tendency towards even greater activities aimed to restrict the entitlements of persons who are not citizens of a given country (such actions have been undertaken e.g. in Great Britain). No matter how one may understand the endeavours to restrict access to benefits, in particular to monetary ones financed from the state budget, it should not lead to the migrants’ deprivation of the right to access  basic social security rights. The principle adopted in the constitution of Estonia seems to be a good solution. In accordance with that principle, everyone is entitled to the social security rights guaranteed in that act (thus, regardless of citizenship), and the restrictions apply solely to the rights which have been explicitly restricted in legal regulations. This solution leads to the assumption that there is a principle that newcomers from other countries are granted the right to use social security rights under the same terms as the citizens of that country (a similar solution has been adopted in the Russian constitution). One should further remember that all exceptions should be interpreted restrictively. Therefore, there should be no exceptions made from that principle in excess or in a way that may subvert the objective arising from the established principle.

One should notice that, despite the fact that most constitutions mention granting social security rights to their citizens, no specific entitlements derive from the contents of these constitutions. In many cases these rights are merely of a declaratory nature. It means that the entities that have been granted these rights may not pursue them on the basis of the constitutional provisions as such. They may be pursued solely within the limits stipulated by the regulations. In practice this means that the regulations of a statutory force may not thoroughly eliminate constitutional entitlements but the scope of these entitlements depends on the contents of the regulations of subconstitutional rank. This regulation raises many doubts. Since in reality, with this method of stipulating the contents of social security rights, they are deprived of strong constitutional protection. In effect, they may be changed by the legislator depending on immediate needs. It poses a threat to the significance of the constitutional guarantees of social security rights. Undoubtedly, the concept of minimum social security rights developed by some constitutional courts (such a principle has been developed by the Polish Constitutional Tribunal for example) constitutes important protection against such a threat. In accordance with this concept, the legislator may regulate the scope of entitlements for citizens, but may not, however, restrict those entitlements beyond the minimum arising from the constitution (the so called core of the law). Here a question arises as to whether the core of these social security rights should not obtain additional protection. This could be achieved by the implementation of an international instrument enacting the minimal standards of social security rights. It is an extremely difficult task, considering the diversity of social security rights in particular states. Yet, with the development of the level of social guarantees, it does not seem to be impossible to attain. In particular, considering the fact that in the European international law there are such instruments. In the first place, one may indicate the International Labour Organization Convention No. 102 or the Code of Social Security, which is based on it, existing within the framework of the system of standards of the Council of Europe. It is also worth noticing that a number of constitutions mention the validity of instruments of international law, including those that regulate social security rights in the national law of particular countries. Those remedies might undoubtedly constitute a significant factor reinforcing the protection of social security rights. However, as Professor Eberhard Eichenhofer rightly points out in his analysis of the situation in Germany, “there is a huge reluctance within the domestic judiciary to give an international law rule such an important impact that it will make a revision of internal law a legal imperative” (cf. Eberhard Eichenhofer, The right to Social Security in the European Constitutions). It seems then that the debate on the significance of international instruments in the national system of the state and the necessity of taking them into account in the judicial decisions of national courts should be encouraged.

The protection of social security rights is seldom restricted to their regulations in constitutional provisions. As it arises from the prepared studies, the protection of constitutional social security rights has been primarily entrusted to the constitutional courts and tribunals (the Czech Republic, Poland, Latvia, Lithuania, Italy and Slovenia). These bodies are to verify the consistency of statutory provisions with norms included in the constitution. Most frequently, constitutional courts are authorized to recognise certain instruments, the provisions of which violate constitutional standards as unenforceable. For that reason, constitutional courts are often referred to as “negative legislators”.  In the context of social security rights, the role of constitutional courts seems, however, much more important. The studies included in this book show that in numerous states these institutions have played a major role in providing often very general formulations included in the constitution with a very precise meaning, or in developing the rules stipulating the principles by which the legislator should be guided while regulating social security rights. The case of Latvia is a good example. The Latvian constitutional court is the author of the principle of a socially responsible state, in accordance with which “The duty of the State to form a sustainable and balanced policy to ensure the welfare of the society follows from the principle of a socially responsible state. Therefore the legislator has to elaborate such a regulatory framework that would be aimed at the sustainable development of the State.” (cf. Merle Mude, The constitutional Social Security Rights in Latvia). The jurisdiction of constitutional courts often also defines the terms under which it is possible to interfere in social security rights in the times of economic crisis (an example of this can be the Lithuanian constitutional court, which has allowed for the possibility of limiting the state pension entitlements during the difficult economic situation, on the condition that it is necessary to ensure vitally important interests of society and protect other constitutional values, and it is of a temporary nature). At the same time, the example of Hungary, where the competence of the constitutional court regarding the fiscal laws was limited due to the economic crisis, indicates that even this form of protecting social security rights cannot be considered sufficient.

The above observations lead to the conclusion that the strengthening of social security rights requires complex protective measures. It is undoubtedly of crucial significance to extend and then propagate (both new and already existing) international standards, at global and regional levels. The existing international organizations (such as the International Labour Organisation, the Council of Europe or the European Union) have already developed procedures for formulating new standards, and have many years of experience in stipulating the contents of those regulations and extending those contents. It then seems that the emphasis should be put on increasing the awareness of particular states and their citizens regarding the significance of protecting social security rights by acceding to the international instruments that formulate the guarantees of particular social entitlements.

Apart from the protection at the level of international law, the strengthening of the significance of social security rights should be achieved through formulating the guarantees in the national law. I fully agree with the position of Thomas Murray, who in his analysis of the situation in Ireland, stated that the constitutionalisation of social security rights supported the extension and strengthening of social security rights (cf. Thomas Murray The Right to Social Security and the Irish Constitution: Tracing the Rights-Free Way out of the Crisis). Thus, even the general reference to social security rights in the constitution contributes to raising the rank of those rights.

Fabrizio Proietti rightly observes that “in the dynamic perspective of the rights-values, it can be said that a right, even if in the early stage of its grounding it is not accompanied by instruments of judicial defence (individual or collective), can still be fundamental in the ability to link to the core values spread throughout the legal system, and to stimulate a strong cultural and political pressure, which ends up in remodelling its formal and substantive quality (cf. Fabrizio Proietti, The Right to Social Security in the Italian Constitutional System). This statement should be wholly referred to social security rights. It is by all means desirable that social security rights be stipulated in the constitution in such a way as to enable the derivation of specific meaning, further specified in provisions of other acts. Here, we reach the third crucial element constituting the system of the guarantees of social security rights. It is the existence of an objective and independent body responsible for the consistency of the law legislated by the state authorities with the values and subjective rights included in the Constitution. The analyses presented in this study indicate that these very institutions have frequently prevented the restriction of social security rights due to the contradiction between proposed amendments and the Constitution.

The maintenance of the aforementioned elements of the protection of social security rights is of the greatest significance during the economic recession. It cannot be denied that the economic crisis has exerted enormous influence on the scope of entitlements arising from social security rights. In many cases one might even talk about the recession in this field (e.g. in the case of Greece).

It seems that in the era of crisis, facing the negative consequences for social security rights the citizens are entitled to is unavoidable. For it is not possible to maintain high social security benefits in the situation of significantly reduced income. Should there be, however, any limitations imposed on restricting social security benefits? And if so, then what criteria should be applied in that situation. The issue undoubtedly requires a detailed discussion. In my opinion, it is beyond any doubt that the limitation of social security rights should not be excessive. The introduced restrictions should not violate the essence of a particular entitlement, in particular, when a given social right is rooted in the constitution. Furthermore, the restrictions should not be applied automatically to all entities who have availed of  help from the state up to this moment in time. The poorest people or people in the most difficult situation should be least affected by the introduced changes. People in a better financial situation may, in turn, be deprived of existing entitlements to a greater degree. Such an approach ensures the realization of social justice and reduces the risk of negative results for people who are most vulnerable to economic exclusion.

Yet, it should be noted that there are also positive aspects of the economic crisis in the context of social security rights. Its effects have forced the implementation of new forms of help for the most affected persons. Some aid programmes and public works are being introduced. What is more, the crises make it necessary to re-examine the distribution of resources within the framework of social aid. It provides a great opportunity to eliminate all irregularities that frequently appear in this field and to direct the aid to the persons who really need it. Hence, it is worth considering whether the crisis should not be used as an occasion to develop more efficient methods or realizing the entitlements arising from social security rights. It seems that the economic crisis creates an ideal opportunity to introduce new forms of social aid to the most deprived persons. Finally, the difficult economic situation of particular countries should be used as a source of information on the functioning of social aid and the introduction of all necessary changes (e.g. to the bodies responsible for the distribution of resources within the framework of social aid).

The analyses presented in this collection of over 20 national systems in regard to social security rights indicate that it may be said that social security rights are at a crossroads. In most cases, it is not clear whether there will be a significant reduction of entitlements within social security rights, or whether the existing protection will be maintained, and gradually extended. Much will depend on the development of the economy and also on the expectations of citizens of particular states. It is beyond any doubt that lawyers and scholars working on the social security rights issue will also play a major role in setting trends. Therefore, one of the challenges they should be presented with is the initiation of the debate on the future of social security rights and the determination of the directions they should follow.

One may hope that social security rights will find a permanent place in both international and national law, and in the latter case, they will be permanently regulated in the constitution. It will allow for the development of the state which is well-balanced, beneficial for its citizens and guarantees social justice.