Legitimacy of "legislative experimentation" in the civil-law procedural system
RULING Nº 69/08
31 of January of 2008
The mere fact that a civil law procedural system operating on a trial basis was only applicable to specific judicial districts identified by prescriptive provisions did not mean that it violated of the equality principle prohibiting arbitrariness and discrimination. Nor can the experimental method in itself be held to infringe other constitutional rules and principles. The legislation of any law-based State must create a stable system of law, and therefore keep the use of experimentation to a minimum, in accordance with the principle of proportionality.
In line with the principle that the economic and social reality is different from that at the time of the adoption of the Code of Civil Procedure, the Decree-Law no. 108/2006 brought about a system of civil procedure which has to be applied in certain actions. It is applicable only in specific judicial circumstances.
The constitutional point put to the Court is whether the application of the civil-law procedural system exclusively to these specific judicial districts is compatible with the Constitution, and whether "legislative experimentation" itself should be condemned as unconstitutional.
Constitutional case-law on the equality principle comprises three dimensions: prohibition of arbitrariness, prohibition of discrimination and the obligation of differentiation. The first of these three dimensions involves ensuring equal treatment of equal situations and prohibiting the equal treatment of manifestly unequal situations; the second presupposes the illegitimacy of any differentiated treatment base on subjective criteria (kinship, race, language, territory of origin, religion, political or ideological convictions, education, economic situation, social origin, etc); and the third dimension helps offset situations of unequal opportunities.
The prohibition of arbitrariness or differentiation imposed by legislation on inadequate grounds is one thing, but the prohibition of discrimination or differentiation based on specific "subjective criteria", which, under the Constitution, cannot serve to justify separate legal systems because of their close links to human dignity, is another. Where differentiation based on "subjective criteria" is established prescriptively, "it is necessary to presume, at least initially, that this is a constitutionally unacceptable type of discrimination", but "where subsequent examination reveals that this factor is the sole ground for the differentiation, there has indeed been a breach of the constitutional principle of equality". If the differentiation is based on multiple grounds, the constitutionality of the standards in question must be reviewed differently. The authority responsible for the aforementioned "examination" must verify the rationality and objectivity of the underlying reasons for the differentiation, whereby the legislation will be open to criticism only if these "reasons" prove arbitrary or absurd, in the absence of "rational, objective grounds" potentially justifying them.
Under the decision challenged, the norms in question infringed the equality principle in that they not only expressed "legislative arbitrariness" but also violated the equality principle presupposing the prohibition of discrimination. Article 13.2 of the Constitution enumerates the motives allowing for the prohibition of discrimination. However, this is merely an indicative "definition" rather than an exhaustive list. At all events, the grounds for the constitutional prohibition of discrimination must be "special". According to legal opinion, such "specialness" must be identified on the basis of the constitutional value of equal human dignity, so that the grounds or factors considered discriminatory are such as are "exclusively based on [subjective] attributes which individuals can in no way control, or choices of lifestyle (...) which individuals are free to make". Plainly, the rules in question give rise to differential treatment of different persons. The system introduced on a trial basis can only be applied to declaratory procedures unaccompanied by special proceedings, and special actions which are brought before specified courts and not others, with a view to ensuring compliance with financial obligations arising out of contracts. Anyone who is party to one of these procedures is "treated differently" from parties to other types of proceedings because of the location of the court action. However, the dubious aspect is this "different treatment", because it involves discrimination, which is prohibited under the Constitution. The discrimination is interpreted exactly in the same way as the aforementioned "prohibition".
No provision of the Constitution entitles individuals to a specific procedure for [civil] proceedings binding upon the ordinary legislator. The conformity of civil proceedings with legislation is bound up with the "due process of law" principle enshrined in the Constitution. The only consequence of this principle is the entitlement to legal settlement of disputes within a reasonable time, complying with the guarantees on impartiality and independence and ensuring proper application of the principle of adversarial proceedings.
Having established that the procedural system introduced on a trial basis is not discriminatory, we must ascertain whether or not it is arbitrary. Under the decision challenged, the "arguments" used to justify the restriction of the spatial application of the system introduced on a trial basis are far from providing an objective and rational justification.
Nevertheless, in connection with the principle of prohibiting arbitrary decisions, the Court has always stressed two fundamental ideas: there can be no "judgments" on the soundness of the legislative solutions; and since the Constitution only prohibits differential treatment without any adequate material basis, it is necessary to pinpoint the rationale behind the provisions at issue in order to assess, on the basis of this rationale, whether or not they are based on a "reasonable criterion".
The fact is that the rationale behind the provisions in question is the "experimental" nature of this new procedural system, which is based on the principles of "simplicity", "flexibility" and trust "in the capacity and interest of parties to the proceedings to settle judicial disputes expeditiously, efficiently and equitably". It is precisely because the legislature wished to "test" and "improve" the system before expanding its scope that it began by restricting its application.
Since the challenged decision shows that it is accepted that unequal treatment can be reasonably based on the experimental nature of the system, we end up challenging the "experimentation" per se. This raises a pertinent question. The "grounds" or "adequate material bases" corresponding to criteria of constitutional significance are alone capable of shielding legislation from criticism in cases involving the prohibition of arbitrariness. The outstanding question is therefore whether the phenomenon of "legislative experimentation" should per se be included in this category.
This legislative "method", which is in fact hotly debated in comparative law, is no novelty for us. "Experimental legislation" first of all tries out the application, and the effects of the application, of the rules in question in a limited area for a limited time, in order to obviate risks which, in situations entailing a high degree of uncertainty as to the effects of a given regulation, would probably lead to the adoption of "definitive" prescriptive systems. In view of their aim, such experimental methods are not discriminatory in themselves and cannot be considered arbitrary.
For the Portuguese system, an "experimental law" is a law like any other, being the expression of the constitutionally recognised legislative system, and it can therefore never infringe the (organic, procedural and material) constitutional principles governing all legislative activity.
Since all these conditions and limits have been respected in the instant case, there are no grounds for declaring the text in question unconstitutional.