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Dienstag, 29. Dezember 2009

Pioneering judgement from Latvia – basic rights preeminent before EU and IMF

Pioneering judgement from Latvia – basic rights preeminent before EU and IMF
Latvian Constitutional Court changes the world

international press declaration by Sarah-Luzia Hassel-Reusing, 27.12.2009

At the 22.12.2009, a few days before Christmas, the Lativan Constitutional
Court has ruled, that the cuts in the pensions because of loan conditions of
the International Monetary Fund (IMF) and of the European Union (EU) for a
credit of 7.5 billions of euro, are incompatible with the Latvian
constitution (Satversme) (file number 2009-43-01). 1 All pensions have been
reduced by 10 %, for still working pensionists even by 70%. 2
According to the basic principles of the judgement, a part of the new pension
law is void from its beginning, and other parts have to be replaced by a
constitutionally compatible version until the 01.03.2010. Art. 1
(souvereignty, democracy), 91 (equality), and 109 (social safety with regard
to old age, to inability to work, to unemployment, and to other cases
regulated by the law), have been violated. The Latvian legislator could
reduce social public spending in times of shorter financial ressources, but
only as far as the basic rights allow this. Already in an earlier judgement,
the Latvian Constitutional Court has had decided, that cuts within the social
security system are permissible for the purpose of the long-term securing of
the social system. The court, however, regards the actual cuts as
disproportionate. Possibly milder possibilies to reduce the costs, have not
been examined careful enough, and special provisions to make sure, that noone
sinks, because of the cuts, below the minimum of social security, which is
prescribed by the constitution.

In addition to that, the Lativan Constitutional Court held, that the basic
rights of the Lativan constitution must not be limited by international
agreements. While art. 91 and 109 contain basic rights, art. 1 of the Lativan
constitution contains structure principles. So the court has stated for
Latvia a preeminence of the Latvian basic rights and of the Latvian structure
principles before any international law. It has, in addition to that, ruled,
that the Lativan government may conclude international treaties only with the
authorization of the parliament (see art. 68 of the Lativan constitution) –
inclusively loan agreements with international organisations like the EU or
the IMF.

One may wonder, if there will be constitutional complaints also with regard to
the closure of hospitals and the lay-offs in the health sector 3, which have
had been enforced by the IMF holding back credit rates, because art. 111 of
the Lativan constitution garantuees every inhabitant of Lativa the protection
of health and the basical medical supply.

The 22.12.2009 judgement has also effects on European and world policy.
Already the German Constitutional Court had held in the first Lisbon
judgement 4 at the 30.06.2009 in basic principle no. 4, that the
constitutional identity of the Basic Law (German constitution) is
higher-ranking than the EU law. The constitutional identity (art. 79 par. 3
Basic Law) contains at Germany the basic rights and the structure principles
of the Basic Law (no. 217 and 218 of the first Lisbon judgement). In addition
to that, according to the German Constitutional Court judgement of the
30.06.2009, the „tasks of the state“ peace and European integration stand
above the EU law.

The Lativan judgement is a milestone for the protection of especially the
basic rights, democracy and the rule of the law as well as for the return to
normality in the international law. The IMF can autonomously formulate its
loan conditions, but it has to accept, that these conditions are complied
with only as far as they are compatible with the constitution of the
respective country, especially with the basic rights and structure
principles. In constrast to the EU law, the IMF law stands, because of the
souvereignty (art. 2 par. 1 UN Charter) of the states clearly below all
national constitutions and also below the UN Charter (art. 103 UN Charter).
All states of the world can now refer to the Latvian Constitutional Court
decision – exactly as far as the IMF conditions are incompatible with their
constitutions or with international law, which is higher-ranking than the IMF
law.

Also the decision, that credit agreements with the IMF depend on the
authorization by the parliament as well as other international treaties, is a
milestone. Hitherto, in many states of the earth, laws have been changed
because of IMF conditions without informing the public and the parliament
with regard to the IMF background. This intransparecy should be over now in
many states.

In the following a few examples of the violation of basic rights and of
structure principles of national constitutions and of universal UN human
rights by IMF conditions:

-starvation because of cuts in food subventions at Bolivia (1985), Zambia
(1986), Venezuela (1989), and Jordan (1989)5
-privatization of the water supply at South Africa because of IMF conditions
even though the basic right to water (art. 27 par. 1 lit. b of the South
African constitution) 6 7
-denial of food aid from the public millet stocks of Niger during the
starvation catastrophy at 2003, because the IMF has been afraid of
distortions of the competition 8
-IMF demanded in 2009 the privatization of the Turkish financial authority 9

Also at Germany, there are violations of basic rights, structure principles
and human rights of the UN social pact because of IMF conditions. 10

The IMF has, e. g., sent recommendations respectively demands towards Germany
at the 11.09.2006. In no. 5 of these recommendations, the IMF has demanded to
reduce the jobseeker's allowance II („Hartz IV“) for long-term jobless people
by 30%, if they do not try hard enough to find a job. This has been exceeded
by Germany with the aggravation ot the jobseeker's allowance II at 2007. Now,
according to §31 par. 5 of the second social law book (SGB 2), in cases of
insufficient proofs of job applications, the jobseeker's allowance II has to
be reduced by 30 % steps – in cases of several times lacking proofs down to
0,- euros. The IMF has „only“ demanded one such 30% step. Whenever such a
reduction takes place, the law puts, for Germany, the granting of benefits in
kind for the very survival into the deliberation of the state. So the IMF has
brought the hunger to Germany, to the illiterates, to the dyslexics, to the
inhabitans with little knowledge of the German language, and to all other
persons, who are able to work, but who have difficulty in proving their job
applications. In no. 14, the IMF has demanded, at the 11.09.2006, cuts in
pensions, and in no. 15 cuts in the health system, in order to prevent the
health fund from beoming too expensive.

The IMF will, if enough states, ngos, and parties will take this historical
chance, very soon have accept first the preeminence of the national basic
rights and structure principles and then also of the universal human rights.

One of the next steps for the limitation of the IMF power should be to strip
it of its states as a UN special organization.
For this status has the effect, that IMF can, legally, draft its conditions
without regarding the UN Civil Pact and the UN Social Pact (art. 24 UN Social
Pact, art. 46 UN Civil Pact). Here is action by the Un General Assembly
needed, because the cancelling of the treaty, which makes the IMF being a UN
special organization, would close this gap. This is crucial, in order to
protect also those human beings, whose national constitutions contain less
social human rights than the Social Pact of the United Nations.
In addition to that, the immunity of the IMF empoyees (see IMF statutes)
should be removed at least, whenever they disregard the preeminence of the
national constitutions.
The chances to civilize the often brutal IMF conditions, are good as never
before, because the US people will, in view of, simutanously, the record
indebtedness and the fall of the dollar exchance rate, soon urge for the
ratification of the UN Social Pact, because the US constitution does not
contain enough social human rights, in order to protect the social security
of the American people against the conditions of the creditors of the USA.

V.i.S.d.P.:
Sarah Luzia Hassel-Reusing
Thorner Str. 7
42283 Wuppertal (Deutschland / Germany)
human rights and civic rights activist

sources:
1 press statement of the Latvian Constitutional Court on the judgement in
English language:
www.satv.tiesa.gov.lv/?lang=2

2 newspaper taz, article of the 23.12.2009 „Lettland kippt von EU und IWF
erzwungene Rentenkürzung“
www.taz.de/1/archiv/print-archiv/printressorts/digi-artikel/?ressort=wu&dig=2009%2F12%2F23%2Fa0094&cHash=5e1fcecdb5

3 taz article „In Lettland gehen die Lichter aus“ of the 14.08.2009
www.taz.de/1/politik/europa/artikel/1/in-lettland-gehen-die-lichter-aus/

4 Lisbon judgement of the German Constitutional Court of the 30.06.2009
www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208.html

5 „Zum Beispiel IWF & Weltbank“, Uwe Hoering, Süd-Nord Lamuv-Verlag, S. 28+29

6 „Der Vierte Weltkrieg“ (Film von www.bignoisefilms.com , at Europe
distributed by www.cinerebelde.de )

7 basic rights chapter („Bill of Rights“) of the South African constitution
www.info.gov.za/documents/constitution/1996/96cons2.htm#27

8 Germanwatch interview with the then UN Special Rapporteur for the human
right to food, Prof. Dr. Jean Ziegler „Ein Kind, das heute verhungert, wird
ermordet“.
www.info.gov.za/documents/constitution/1996/96cons2.htm#27

9 taz article of the 07.10.2009 „Weg vom IWF-Diktat“ on IMF demands to Turkey
www.taz.de/1/archiv/print-archiv/printressorts/digi-artikel/?ressort=a2&dig=2009%2F10%2F07%2Fa0049&cHash=c6ee3d8560

10 IMF demands to Germany of the 11.09.2006
www.imf.org/external/np/ms/2006/091106.htm

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