Institutional set-up for constitutionality control

Finland’s constitutional culture is close to the other Nordic systems, all of which employ mechanisms for reviewing the constitutionality of legislation.Footnote ¹⁹ Accordingly, these systems presuppose some form of separation of powers, distinguishing especially between the legislature and the judiciary, and formal hierarchy of norms. Nevertheless, different constitutional arrangements determine how judicial review of legislation is organised. ^{Footnote 20} Denmark does not have an explicit constitutional provision covering judicial review. However, it hesitantly recognises judicial review as a part of its system. Finland and Sweden have explicit written constitutional provisions concerning judicial review, although in practice judicial review is resorted to cautiously. Norway formally added judicial review by an amendment to its Constitution Act in 2014, although judicial review has long been a part of the Norwegian system. Iceland also allows judicial review, which it regards as a non-problematic element of the constitutional system. ^{Footnote 21} In a comparative Nordic view, the most distinctive feature of the Finnish system is the modus operandi in which it monitors the constitutionality of statutory laws enacted by the parliament.

Finland, like other Nordic systems, maintains no constitutional court but all courts are allowed to perform judicial review of legislation to a certain limited extent. After the total reform of the Constitution Act in 2000, it became possible for courts to perform judicial review of legislation. ^{Footnote 22} The notion of monitoring constitutionality, however, is not limited to judicial review because, in addition to the courts, other public authorities are also obliged to interpret legislation in adherence to the Constitution and to respect constitutional and human rights. ^{Footnote 23} According to the Constitution Act (Article 106), the courts, when deciding a case, must give preference to the Constitution if applying a parliamentary Act would manifestly conflict (ilmeinen ristiriita) with the Constitution Act. In a handful of cases, starting from 2004, the courts have applied Article 106. However, in the overall picture judicial review by the courts plays a minor role in terms of safeguarding the constitutionality of parliamentary Acts. ^{Footnote 24}

In practice, the constitutionality of laws is examined in advance, that is, even before an act enters into force. Review mainly takes place in the parliament’s influential Constitutional Law Committee (perustuslakivaliokunta). The key function of this parliamentary-bound control is advance prevention of laws that conflict with the Constitution being enacted in the ordinary legislative procedure. From the constitutional point of view, the Committee’s key function is to issue statements on Bills sent to it for consideration (not all Bills undergo Committee review) and on the constitutionality of other legislative matters and their bearing on international human rights. ^{Footnote 25} While the Committee members are ordinary members of the parliament, the Committee calls experts (based on constitutional convention, explained further below) to give evidence, and the Committee itself operates in a non-party-political manner in reporting to the parliament. These experts are external and, in practice, they are mostly law professors specialising in constitutional law or more generally in public law. ^{Footnote 26} The Committee’s reports are legally grounded written formal statements and are respected by the government, which must seek to amend the provisions of a Bill that the Committee has found to be unconstitutional before the Bill can be passed. If the unconstitutionality is significant it means, in practice, that the Bill is withdrawn and the government has to think of another way to proceed because in the Finnish multiparty system governments do not have the required qualified majority to change the Constitution Act. ^{Footnote 27}

From a comparative point of view the fact that the Constitutional Committee functions in a non-political quasi-judicial manner (statements are based on the evidence given by external constitutional experts; the Committee follows its own ‘precedents’; there is no party-political discipline) is significant. All this results in a system of controlling the constitutionality of legislation, a system which combines an abstract ex ante and concrete case-bound review mechanism. Importantly, the significance of the perustuslakivaliokunta is reflected in the whole legal system and its statements hold a special status as a source of law as de facto precedents. ^{Footnote 28} Only with slight exaggeration, one may characterise the weight of these statements as de facto ‘constitutional precedents’. Importantly, the Committee does not say anything about the actual content of a Bill because its only concerns are constitutionality issues. In this respect, the Committee is different from all the other parliamentary committees that concentrate on the substantive issues of Bills and where members follow party discipline.

Overall, the constitutionality control system may be described as an institutional arrangement that combines a constitutional tradition of legislative supremacy and the notion of democracy as majority rule with a more recent tendency to practise rights-based judicial review of parliamentary legislation that arises from the national constitution and European commitments. ^{Footnote 29}

Locking in autocracy

In order to understand how the current constitutionality control of laws came to be, we must look back at those pivotal moments when essential institutional factors were born and key occurrences took place. In this case, the first lock-in moment took place in the late eighteenth century, when absolute monarchy was established by Gustav III (who ruled 1771-1792), diminishing the power of the Diet of the Estates and resulting in the end of the Age of Liberty with the introduction of the Swedish Constitution of 1772.

Swedish and Finnish history are necessarily intertwined because Finland formed the eastern part of Sweden from about 1200 to 1809. Sweden itself became a state during the rule of Gustav Vasa (1523-1560), who organised the state in the form of a hereditary monarchy.Footnote ³⁰ Later, in the seventeenth century, the Estates were able to compel the King to recognise the competency of the Diet of the Estates (Svea rikes ständer) to take part in legislating by convening from time to time. The first genuinely constitutional document came about in 1634 when the Form of Government (1634 års regeringsform) was adopted.Footnote ³¹ This constitution limited the powers of the monarch for the following decades.Footnote ³² In essence, the monarch could not rule alone as an absolute monarch, but had to act together with his council (med råds råde, meaning ‘with the council’s advice’), and also had to take advice from the Estates in matters concerning taxation.Footnote ³³

The turn of events in the early eighteenth century did not mean a radical change, in that constitutional continuity from the previous century was surprisingly unbroken. Importantly, the 1723 Form of Government (1723 års regeringsform) once again limited the powers of the monarch and required the monarch to comply with common decisions of the Diet of the Estates.Footnote ³⁴ In other words, power shifted further from the King to the Estates. The period from 1719 to 1772 has been called the Age of Liberty (frihetstiden).Footnote ³⁵ However, this early form of constitutional monarchy did not root deeply because of what happened in 1772, the year when the path-dependent relevant lock-in took place. At first, though, the powers of the monarch were not reinstated during the years 1719-1723 when a new constitutional document was adopted.Footnote ³⁶ Later, this state of affairs was to change drastically.

The harsh winds of constitutional backsliding blew strongly in the last decades of the eighteenth century. The Age of Liberty ended suddenly in 1772 when Gustav III turned back the constitutional clock by reasserting royal power over the Diet. His coup, although containing a military threat, was bloodless but at the same time meant a significant shift in the power structure of governance. Even though the Constitution of 1772 was, in part, also inspired by the Enlightenment and the ideas of Montesquieu, in practice it meant a strong monarchy and a weak Riksdag.Footnote ³⁷ Essentially, the King governed the state machinery and the Riksdag was assembled only at the monarch’s will in cases when taxes were to be raised or new legislation was to be passed. During the Age of Liberty, the King could be described as relatively powerless because the Estates were clearly more powerful than the monarch. This all changed with the coup by Gustav III.Footnote ³⁸ In short, the Age of Liberty of the Estates was over.

Both the King and the Estates swore that the country would go back to autocracy, which the 1772 Form of Government in fact reinstated.Footnote ³⁹ In a nutshell: the Estates more or less voluntarily accepted the new Form of Government without changes.Footnote ⁴⁰ The new constitutional document stipulated that the King was unable to make new laws or repeal old ones without the consent of the Diet, and that the Diet was unable to do the same without the King’s consent.Footnote ⁴¹ However, because the Riksdag would convene only on the King’s call, in reality this meant that the monarch could rule with lower-ranking decrees and by simply using political influence based on the monarch’s ruling position. Later, the Deed of Association and Security (Förenings- och säkerhetsakten 1789) further strengthened the autocratic features of the system of government. The normative baseline of the Deed was clear: the King ‘possesses full power to govern’ and matters having to do with ruling are to be taken care of ‘in the manner the King sees useful’.Footnote ⁴² This constitutional document added new provisions to the 1772 Form of Government, thus creating a system of two constitutional documents. In practice, the Deed further strengthened the King’s constitutional centrality while simultaneously seeking to further decrease the power of the aristocracy. This constitutionalised autocracy was literally ‘the rule of one’ (envälde) and was directly opposed to the idea of ‘the rule of many’ (pluralitetsvälde).Footnote ⁴³ Significantly, the Estates other than the nobility did not oppose the King’s constitutional reform because it was beneficial for them, leaving the nobility dissatisfied with the monarch – and behind his later assassination.Footnote ⁴⁴

For Finland, the lock-in of the Swedish system of autocratic governance is evident in the fact that both constitutional documents of this period – the 1772 Form of Government and the 1789 Deed of Association and Security – remained formally in force in Finland until 1919. Every previous embryonic Finnish plan to pass a new Form of Government before 1919 was blocked because of reluctance on the part of Russia, of whose empire Finland formed part from 1809.Footnote ⁴⁵ In other words, these new documents formed the constitutional foundation of the Grand Duchy when Finland was part of the Russian Empire. The fact that Finland was made a constitutional autocracy in 1772 turned out to be decisive, in the sense of path dependence, for what was to follow.

Grand Duchy of Finland

Due to Gustav III’s coup, Finland’s constitutional system, comparatively speaking, lagged behind developments elsewhere in Western Europe. With revolutionary ideas neither current nor relevant, the result was that revolutionary constitutionalism was absent. After the Finnish war (1808-1809) between Sweden and Russia, the eastern part of the realm was established as the new autonomous Grand Duchy of Finland within the Russian Empire. In hindsight, it is surprising how little actually changed even though the Russian governance model clearly differed from the Swedish one.Footnote ⁴⁶

After the war, the new situation required constitutional re-organisation due to the fact that 600 years with Sweden was over. The Russian Tsar Alexander I (who ruled 1801-1825) called the representatives of the Estates to convene in the town of Porvoo. At the Diet of Porvoo – actually called the Landtag, i.e. not the Riksdag – the Estates acknowledged the change in governmental power and took an oath of allegiance.Footnote ⁴⁷ The Estates promised loyalty to their new monarch who, in turn, declared that he would leave inherited Swedish rules in force. This was a kind of backward medieval-style occurrence, in which the Estates made a dominion pact with the sovereign ruler. In the Act of Porvoo, the former eastern part of the Swedish realm became transformed into the Grand Duchy of Finland and Alexander I became the Grand Duke of Finland.Footnote ⁴⁸ In effect, Finland became an autonomous part of Imperial Russia. Importantly, Finns came to regard the Act of Porvoo as a pledge according to which Finland would be governed according to its existing laws.Footnote ⁴⁹ This interpretation was somewhat legalistic and fitted well with Finnish views, although it is not really clear what the Tsar actually meant when he promised to uphold the privileges of the Estates and existing fundamental laws.Footnote ⁵⁰

In any case, Finland’s outdated constitutional laws from the eighteenth century played an important role in this, because the Russian Tsar ‘would certainly not have tolerated more developed political self-governance’ than that which Finland had at that time.Footnote ⁵¹ Later, Finnish legal scholars fulfilled a key role in defending the constitutional position of Finland as a separate state-like entity, distinct from the rest of Russia – a view challenged, in turn, by Russian scholars.Footnote ⁵² Throughout the eighteenth century, the budding culture of early Finnish constitutionalism mixed legal, political, and historical views and arguments when struggling to preserve its Swedish constitutional rules. The existence of written constitutional rules provided a source of legal arguments against attempts by the Russian authorities to interpret autonomy narrowly.

It may sound paradoxical but what the Tsar meant or did not mean is of less relevance here. The Finnish understanding of the importance of written constitutional rules, which came into being during the 1800s, is important for path dependence because this understanding had a formative significance and because it substantiated how the Swedish constitutional heritage was (internally) understood and upheld in the Grand Duchy. Regardless of the fact that the exact constitutional significance of the pledge, as the Tsar himself understood it, was not clear in terms of this constitutional heritage, it was nevertheless important for constitutional path dependence.Footnote ⁵³ The significance of the constitutional documents of 1772 and 1789 became decisive partially because for decades the Tsar did not call the Diet to convene. Indeed, it was only in 1863 that the Diet was called to meet by Alexander II (ruled 1855-1881), then regularly from 1876, because new legislation required the approval of the Diet according to the Grand Duchy’s constitutional laws. In other words, it took 54 years before the next Diet was held after Porvoo. Of course, new legislation was de facto passed during the years between 1809 and 1863.Footnote ⁵⁴ The fact that legislative reforms were carried out mainly by imperial decree meant that the constitutional framework remained officially unaltered.Footnote ⁵⁵ This meant, furthermore, that the constitutional practice of autocratic Sweden was continued in the Grand Duchy: instead of a Swedish king, a Russian tsar was ruling by royal decree. The Gustavian period thus continued, albeit under a different monarchy and state structure.

As such, the period during which the Diet did not convene was not unconstitutional, in the sense that under the Deed of Association and Security the King was entitled to call the Riksdag to convene and, moreover, ‘the Estates will not deal with any other matters than those proposed by the King’.Footnote ⁵⁶ In 1863, when the Diet convened for the second time after 1809 because of growing legislative needs, the Tsar emphasised his intention to retain the constitutional powers that were his under Finland’s existing fundamental laws. To that end, the Tsar accepted the transformation of the Diet into a regularly convening legislative body organised so that it was based on the Estates. The Grand Duchy of Finland’s Diet consisted of four Estates, namely nobles, clergy, burghers, and peasants. During its active years, the Finnish Diet passed some 400 pieces of legislation.Footnote ⁵⁷ The long inactive period between 1809 and 1863 was termed ‘state night’.Footnote ⁵⁸ Now that it had ended, new legislative activity was needed. This meant a formative lock-in-phase for the Finnish model of constitutionality control, a phase built directly on the existing constitutional framework provided by the Swedish constitutional heritage and Finland’s politically precarious position as a Grand Duchy. The Era of Liberal Reforms involved active legislating on matters that were needed to reform the economic system, such as freedom of contract and freedom of enterprise, which had not been neecessary under the previous mercantilism.Footnote ⁵⁹

A key factor behind the next step in the path was the fact that the Finns were keen to keep their constitutional laws. In practice, the majority of Finns vigorously opposed all Russian efforts to bring Finland more tightly into Russia’s grip. Moreover, the idea of ‘Finland’ grew stronger, and there was a will to reform Finnish society according to Western European models, animated by the budding idea that Finland formed a separate nation within the Russian Empire. Finland had its own culture and language, clearly different from those of other places in the Empire. This had an effect on how the legacy of 1809 was conceived as the foundational act of a Finnish autonomous (de facto) state with its own constitutional laws.Footnote ⁶⁰ The existence of Swedish constitutional documents was an important part of the equation, though not the only one, in which the Swedish heritage had a constructive capacity as a legal basis on which to build without direct Russian interference.

The start of the active period of the Diet was not problem-free. Members of the Diet quickly noted that Swedish-period procedures included rules that were inadequate, contradictory, or even impossible to implement.Footnote ⁶¹ The new Diet Act, accepted in 1869, was applied by the Diet until 1906. Because the Act was conceived merely as a technical reform of the earlier 1617 Order, it was not regarded as an important constitutional document.Footnote ⁶² However, because the Diet started to convene from 1863 onwards, a more up-to-date collection of procedural rules for the Diet was required in practice.Footnote ⁶³

Constitutionality control devised

The underlying constitutional dilemma in the nineteenth century, from 1863 onwards, was how to ensure the constitutionality of new laws so that the constitutional heritage of 1772 and 1789 would stay intact in order to protect autonomy. It is important to clarify the distinction between Finnish and Russian doctrine because, as time passed, the further away from each other their constitutional views grew.Footnote ⁶⁴ Gradually, Finns started to think that some of the constitutional practices that were based on the earlier constitutional documents had gained the position of constitutional customary law.Footnote ⁶⁵ The interwoven deterrent was, however, that much of the desperately needed modern legislation would unavoidably stand in contradiction with constitutional norms. The normal solution would be to change the constitution or, alternatively, empower the courts to undertake judicial review, thus ensuring that laws would not contradict the constitution. The problem was that both of these options were undesirable and could not be fitted in the constitutional path without serious deviation.

Changing the text of old fundamental laws that Alexander I had promised to uphold in 1809 might risk compromising the legal basis of autonomy, leaving the door open for deeper Russification of the Grand Duchy. For the majority of the Finnish elite, who wanted to protect and preserve the constitutional foundation of autonomy, this was not something to be done lightly. For similar reasons, opening the door for judicial review was out of the question. This was because judicial power was within the reach of Russia. At that time, the domestic government and the highest judicial power were organised under the same roof, namely the Senate. This organ combined the functions of a cabinet and the highest court from 1816 until the early steps of an independent Finland. There were two separate divisions, the Economic Division (talousosasto) and the Judicial Division (oikeusosasto). Importantly, Russia chose individuals to fill positions in the Senate. In practice, this meant that judicial power ultimately lay in the hands of Russia. Now, to entrust judicial review into the hands of the Senate’s Judicial Division would have meant surrendering the interpretation of fundamental laws to individuals who could have been favourable to the expansion of Russian power at the expense of the powers of the Grand Duchy.

As became clear from this complex situation, both of the seemingly obvious solutions to the constitutional dilemma regarding new legislation were, in practice, out of the question. In the Finnish view, the core essence of constitutional thinking was that the Tsar had pledged to govern Finland according to its existing laws and in particular constitutional laws. This essential idea was locked in to three key occurrences: 1772, 1789, and 1809. The path-dependent solution to the problem with new legislation had to be based, in a legal culture adhering generally to the idea of legalism, on earlier steps that limited freedom of choice if and when constitutional continuity was going to be preserved.Footnote ⁶⁶ That said, constitutional law would not necessarily have remained purely Gustavian. Old rules needed to be applied, and thus interpreted, in new situations. This meant, nevertheless, that certain fundamental features of the constitution were shaped and tuned under Russian pressure, yet at the same time they were based on old fundamental laws that were mixed with the slowly growing political consciousness of an awakening nation.Footnote ⁶⁷ As a result, national identity and law became intertwined under the threat from the East.Footnote ⁶⁸

A constitutional solution was pioneered in connection with the draft 1878 Military Service Act (Asevelvollisuuslaki). It was realised that many of the provisions of the Bill were in clear contradiction to the 1789 Deed that secured the privileges of the Estates. The problem was clear and unavoidable because the Bill had to be passed. To put it simply, how to preserve the fundamental law without altering its text, yet at the same time pass required legislation known to be contrary to those very rules that needed to be kept unaltered? Moreover, to pass new law and leave constitutionality to the Senate’s Judicial Division was, as explained above, inconceivable.Footnote ⁶⁹ In essence, a solution had to be devised within the Diet of the Estates in order to keep important constitutional interpretative power in the hands of the Finns. Critically, Russia had no direct reach inside the Diet, unlike the Senate. Crucially, the 1869 Diet Act provided that members of the Diet were not to follow any other rules in their capacity as a member; only ‘the country’s constitutional laws’ were to be taken into account.Footnote ⁷⁰

A constitutionally feasible path had led to a situation in which the Finns simply had to come up with a solution that could put all the pieces in their correct places. This was a path-dependent tightrope-balancing act between legalism and political realism. What was done was technically simple; some articles of the legislative Bills were proclaimed to be constitutional as to their nature, and thus were passed under the same legislative procedure that would have been required for changing a constitutional document, namely support by three-quarters of the Estates. This solution enabled the passing of enactments contradictory to the constitution, though without changing the text of the constitutional documents themselves. In other words, an ingenious path-dependent solution was to eat the cake and yet at the same time to have the cake, namely to amend the constitution without changing its text.

The solution that was devised also includes another important procedural peculiarity termed an exceptive law (poikkeuslaki). This is the result of a priori constitutionality control because these laws change the constitution substantively without altering the text of the constitutional document. Therefore, adoption of poikkeuslaki depends on a priori constitutional control and determining constitutionality takes place as part of the legislative process. In practice, the constitution is interpreted by the legislature in order to preventively remedy any detected unconstitutionality. The key outcome is clear. Exceptive laws are contrary to the idea of legal constitutionalism because they mean that the intended legislative act is conceived to be explicitly in conflict with the constitution and yet is passed by the legislature, even though under the same procedure that would be required to change the text of the constitution. What is more, exceptive laws are by-products of the fundamental solution to entrust the parliament (first the Diet) to take care of constitutionality control before parliamentary laws come into force. Now, discussing exceptive laws would require a paper on its own, so cannot be dealt with here in more detail.Footnote ⁷¹ Nonetheless, suffice to note that the idea of changing constitutional laws without changing the texts of constitutional documents was already instilled in 1809 by the Tsar’s pledge.Footnote ⁷²

The constitutional doctrine that was created is the institutional solution (one parliamentary committee reviews constitutionality preventively) that remains a functioning part of Finnish constitutional law and political constitutionalism. In the late Russian period, just before independence, the legislative assembly functioned as a constitutional bulwark against Russification. Constitutional interpretation ideology as to its nature was mostly unanimous and clear in terms of Finland’s legal status: constitutional laws must be interpreted extremely narrowly and in autonomy-friendly mode.Footnote ⁷³ Much of the prestige that the Committee gained during these years was transferred to the budding constitutional practices of an independent country that chose not to rely on legal constitutionalism, instead relying on an interwoven constitutional doctrine rooted gradually in the constitutional system. The institutional core of this solution is to make one of the Committees of the Diet (later parliament) responsible for controlling the constitutionality of Bills. At first, it was the Diet’s Legal Affairs Committee (lakivaliokunta) and then from 1906 onwards the Constitutional Law Committee to which this central constitutional function was assigned. Thus it was Finnish constitutional invention that kept constitutionality control as an internal affair of the Grand Duchy rather than a power that would have been either directly in Russian hands or, at least, under Russian influence.Footnote ⁷⁴

The newly crafted control model was first used in its fully developed form in 1882 when the Seat Farm obligation was abolished.Footnote ⁷⁵ The Bill was sent to the Law Committee, which was tasked with issuing a statement on constitutionality (and what legislative procedure was required) to another Committee that was dealing with the Bill substantively. In international comparison, this institutional solution was and is rare: in a situation when concerns exist about the constitutionality of a Bill, it was sent to a specialist Committee that had to evaluate and decide exclusively on the constitutionality issue.Footnote ⁷⁶ In practice, the Finnish Diet now (from 1882 onwards) had a specialist Committee tasked with providing an authoritative interpretation on the constitutionality of a Bill.

The new control mechanism rooted quickly as it was deemed an important means of safeguarding autonomy. In 1888, this practice was already described as ‘a normal procedure’. In effect, the function of the Committee may be rightly described as quasi-judicial.Footnote ⁷⁷ Rather soon, the Committee started to use its earlier statements as a kind of precedent. The institutionally peculiar foundational idea was to admit that the Law Committee’s interpretation was not necessarily the right one; however, it became de facto binding guidance for the Diet, so the Committee’s statement on the correct legislative procedure had to be taken into account. That is to say, the Estates themselves assumed the role of guardians of the constitution.Footnote ⁷⁸ In other words, Finnish constitutionalism developed from the outset as political constitutionalism and developed as such during most of the twentieth century.Footnote ⁷⁹

In the late nineteenth century and at the beginning of the twentieth century (1899-1905) Russia started to severely limit the special status of the Grand Duchy. This period was followed by a second period of Russification (1908-1917) that maintained similar goals regarding Finland. In Finnish, these periods are called collectively the Times of Oppression (sortokaudet). Eventually, Finnish opposition to Russification played an important role leading to the declaration of independence in 1917. Notably, Finnish opposition to oppression was constitutional in nature. Arguments were based on existing constitutional documents and customs. In practice, Finns resisted Russification by making legal – and ultimately legalistic – arguments when they sought to defend the status of the Grand Duchy.Footnote ⁸⁰ During the second period of Russification, the crux of the Committee’s work, both qualitatively and quantitatively, focused on interpreting the constitutional position of Finland defensively.Footnote ⁸¹ As a corollary, the Constitutional Law Committee became a core institution, as indeed it remains to this day.

Russification started with a constitutional shock move by the Tsar in 1899 with the February Manifesto, which limited autonomy and the former constitutional legacy. In short, the Manifesto was aimed at abolishing Finland’s fundamental laws.Footnote ⁸² Nicholas II’s explicit purpose was to make earlier constitutional laws obsolete. The Tsar added with his own hand a marking in the margins of the presentation agenda of the Manifesto that ‘[I]t is time to forget the [1772] Form of Government’.Footnote ⁸³ According to the Manifesto’s Preamble, legislative issues concerning the general interests of the Empire ‘cannot be exclusively treated by the institutions of the Grand Duchy’.Footnote ⁸⁴ In the end, Russification tempered the institutional position of the Diet as a constitutional key player. Mounting Russian pressure impelled lawyers, historians, politicians, and ordinary people to defend Finnish autonomy and the constitutional basis on which it relied.Footnote ⁸⁵ These developments had a lasting impact on Finnish legal culture, which learned to place its belief in legislative procedures stipulated in a detailed manner but also adding and allowing customary elements as an integral part of a living constitutional system.Footnote ⁸⁶

Centrality of the Constitutional Law Committee in constitutionality control

The most influential Finnish constitutional lawyer and professor during the twentieth century, Paavo Kastari (1907–91) described the Finnish solution as ‘a tactical trick with more far-reaching consequences than any contemporaries could have guessed. Later, developed as a systematic modus operandi, it became a typical feature of our constitution and a symptomatic aspect of our constitutional perception’.Footnote ⁸⁷ Even though Kastari called the Finnish solution a tactical trick, it was not assumed hastily. In fact, it had been doctrinally considered and was backed by theoretical thinking. This was demonstrated by Leo Mechelin (1839-1914), an important law professor and statesman. Mechelin, who was keen to defend the constitutional position of the Grand Duchy, developed an idea according to which one special Committee of the Diet ought to specialise in interpreting constitutionality in connection with Bills.Footnote ⁸⁸ And that, as we have seen, is precisely what happened in practice.

Under this approach, the idea was that one of the Committees should take responsibility for giving ‘the right’ constitutional interpretation to the whole Diet.Footnote ⁸⁹ Remarkably, this manner of organising constitutionality control today remains a distinctive feature of the Finnish constitution even though the system was slightly revised in the 2000 total constitutional reform.Footnote ⁹⁰ From the point of view of path dependence, it is important that the solution devised in the Diet of the Estates during the period of the Grand Duchy transposed successfully to an independent Finland. Likewise, the authoritative status that the Law Committee had acquired during the late nineteenth and early twentieth centuries was transferred to the new Constitutional Law Committee.Footnote ⁹¹ In other words, there were no side steps from the path of constitutionality control.

The civil discontent and unrest that broke out in Russia following military defeat by Japan provided an opening for parliamentary reform in Finland in Autumn 1905. The hopelessly outdated Diet of the Four Estates supported a Bill calling for the establishment of a unicameral Parliament and the introduction of universal suffrage. Weakened because of military defeat by Japan – leading to a short period of quasi-constitutional monarchy – the Tsar approved the proposal and thus the Finnish parliament (Eduskunta) was established in 1906.Footnote ⁹² Finland’s position as a Grand Duchy with special status was also confirmed in the first Russian Constitution in 1906.Footnote ⁹³ From a historical viewpoint, the Parliament Act of 1906 was a monumental constitutional reform:Footnote ⁹⁴ in short, ‘a profound break from the past’.Footnote ⁹⁵ The old Diet of the Estates was replaced by a modern unicameral Parliament; moreover, universal and equal suffrage was introduced. In defiance of otherwise large-scale and deep-reaching reform, including abolition of the Diet and creation of a modern parliament, the constitutional control model did not change even though a new special Committee was established. The Constitutional Law Committee saw the light of day. Under the Parliament Act of 1906, this special Committee had to ‘prepare legislative issues that concern passing, changing, explaining or abolishing the constitution’.Footnote ⁹⁶ The existing practice was merely described and codified in the new constitutional document, first in 1906 and later – with slight modifications in wording – in 1928. Constitutionality control followed the path of continuity, unlike the 1906 reform in other ways, whereas 1928 was more or less a technical reform updating parliamentary procedures.Footnote ⁹⁷

From the point of view of continuity, the new Committee continued the tradition from the previous century. After independence, much of the earlier constitutional practice was transferred to an independent Finland. This concerns not only the institutional solution and the legislative process but also the interpretative modus operandi, relying on academic experts and earlier statements of the Committee itself, which was born in the late nineteenth century. Many interpretations concerned, in an almost routine-like manner, property rights, and the interpretative tradition continued.Footnote ⁹⁸ This is reflected in the fact that change is minimal in the constitutional text concerning constitutionality control between the Parliament Acts of 1906 and 1928.Footnote ⁹⁹ More importantly, not only the text and interpretative tradition but also the accompanying constitutional thinking continued their existence as a part of the constitutional framework of an independent country. In a broad legal-cultural sense, legalism prevailed.Footnote ¹⁰⁰ At an early stage, even in the mid-1920s, the Committee assumed a key role in constitutional interpretation. As an illustration of its power we can register how the 1919 Constitution did not specify – and the same applies to the Constitution in force today – the procedure by which exceptive laws could later be changed: as ordinary laws or as constitutional laws. The Constitutional Law Committee created a doctrine in the mid-1920s that remains valid today, even though rarely used.Footnote ¹⁰¹ As a result, the constitutionality control system is the best-preserved part of the constitutional culture built on a path laid down in 1772.

The key question, from the viewpoint of path dependence, is why the system of constitutionality control was not reformed when the new Constitution – literally Form of Government – was drafted and passed in 1919.Footnote ¹⁰² The Finns had already tried to create a new Form of Government in 1907 under the leadership and initiative of Mechelin, but the Bill was stopped by Russia’s prime minister.Footnote ¹⁰³ The answer to why the control mechanism remained unchanged lies in the significance of the constitutional path.

After independence, reform of the constitutionality control mechanism would have been an option. However, the 1919 Form of Government did not change a system devised in the previous century and under very different circumstances. Nevertheless, Gustavian constitutional rules acted as a loose paradigm for the 1919 Constitution.Footnote ¹⁰⁴ This is the point where we can see the significance of path dependence. Whereas the Constitutional Law Committee had gained trust and dignity, as a key guardian of autonomy, the Supreme Court – the former Judicial Division of the Senate – was conceived as less trustworthy and less dignified as the highest institution of constitutionality control. In short, institutional and legal cultural continuity played an important role; it limited the actual space for new constitutional patterns to emerge by limiting the possibility to transfer constitutionality control to the Supreme Court. Accordingly, the Parliament inherited the role of guardian of the constitution.Footnote ¹⁰⁵

In 1917, discussions took place on the possibility of allowing constitutional judicial review. Nevertheless, little willingness was shown to giving constitutionality control to a purely judicial organ. Thus, propositions by politicians to establish judiciary-based constitutionality control did not succeed. Nevertheless, after the Civil War of 1918, some further discussion took place about giving full constitutional power to judicial organs.Footnote ¹⁰⁶ During the drafting of the Form of Government, formulations were circulating on this matter but in the end the finally accepted version did not change constitutionality control. All the different versions that would have allowed constitutional judicial review were wiped away by a Parliament that guarded its power to take care of constitutionality control preventively, that is, before a Bill becomes an official parliamentary Act.Footnote ¹⁰⁷ Unsurprisingly, then, in 1919 the Parliament rejected the Supreme Court’s competence for judicial review by a vote of 104 to 77.Footnote ¹⁰⁸ The constitutional space left for the judicial branch in constitutionality control was non-existent.Footnote ¹⁰⁹

Yet independence brought something new to the system, especially after 1919. A novel constitutional custom came into being: the Constitutional Law Committee began regularly to seek statements from outside experts. Before 1919, there had been no need for outside expertise simply because many of the Committee members were public law experts. Later, it gradually became a constitutional custom for the Committee regularly to hear public law professors. During the following decades, this was to become a signature feature of constitutionality control.Footnote ¹¹⁰ The practice of hearing outside experts, and giving great weight to written their statements (lausunto), is still a customary part of the Finnish constitution.Footnote ¹¹¹ Even though, no doubt, the primary source of constitution is a written constitutional document, the de facto significance of outside experts cannot be overstated.Footnote ¹¹² This path-dependent tailored constitutional custom is not - and here is the thing - part of a codified constitutional document.Footnote ¹¹³ Historically we can note, nevertheless, that when it comes to the written constitution, very little is left of the text of the 1772 constitution.Footnote ¹¹⁴ Political constitutionalism, on the other hand, has proved to be quite a resilient feature. Only relatively recently has constitutional development concerning judicial review crawled towards more active courts. This development has been due to European Union law, international human rights, and the growing domestic importance of constitutional rights.Footnote ¹¹⁵