Rule of law is under unprecedented threat in Finland, legal scholar tells HS

THE ACTIONS of the Parliament’s Constitutional Law Committee pose an unprecedented threat to rule of law in Finland, Kaarlo Tuori, one of the most internationally prominent legal scholars in Finland, argued in a rare interview with Helsingin Sanomat on Saturday.

He viewed that the threat culminated in the position the committee adopted recently on a government bill for a new border security act – one that would essentially enable the government to ignore binding international human rights obligations to safeguard national security.

Both Hungary and Poland, he reminded, began to chip away at rule of law specifically by undermining the constitutional review process. Finland is presently at risk of slipping onto the same path.

“In Poland and Hungary, the constitutional law courts were made harmless for those in power with political appointments and the removal of legal limits on the parliamentary majority’s power. The next step was to subjugate regular courts of law to political steering,” he recounted to Helsingin Sanomat.

The authoritarian governments then turned their attention to the media and civil society.

“We in Finland have unfortunately witnessed at least the first stage of the development. Advance constitutional review, which is the responsibility of the Constitutional Law Committee, has been deliberately made harmless for the government this electoral term.”

Tuori, who holds a professorship emeritus at three universities, watched the erosion of rule of law in Hungary and Poland as a member of the Venice Commission, an advisory body of the Council of Europe, in 1998–2022. He continues to take part in the commission’s activities also today as an honorary president.

In the past four decades, he has submitted almost 700 legal statements to various parliamentary committees.

A key principle of rule of law is that parliamentary majorities and majority governments must comply with the limits imposed by the constitution, and that such compliance is preserved by an oversight body that is independent of party politics. In Finland, the Parliament’s Constitutional Law Committee is that body, meaning the oversight is proactive rather than retroactive.

The committee’s position on the draft bill has been deemed problematic because it could set a dangerous precedent for sidestepping human rights obligations at the convenience of the ruling parties. Many legal experts have concluded that the position violates key elements of the constitution, which interlace national basic rights and international human rights.

The bill has also drawn criticism from Michael O’Flaherty, the Commissioner for Human Rights at the Council of Europe, and the UN High Commissioner for Refugees.

“Finland’s credibility as a leading proponent of rule of law, human rights treaties and the rules-based international order has been run aground. In the [committee’s] statement, law was forced into submission by politics. Judicially, the statement is abysmal,” slammed Tuori.

Helsingin Sanomat reported earlier last month that all 18 legal experts who lent their expertise to the committee concluded that enacting the bill is unfeasible. The position taken by the committee marks the first time it has diverged so brazenly from the very cohesive opinions of experts, according to Tuori.

“Its claim that the European Court of Human Rights and the EU Court of Justice’s rulings on applying the principle of non-refoulement are dissimilar to the situation on the eastern border is also inaccurate. All the recent rulings have dealt with instrumentalised immigration,” he noted.

He additionally expressed his dismay at the committee’s decision to issue instructions to courts for resolving the potential question of whether border guards are liable for violating international human rights by enforcing the special act.

“These sorts of instructions are unheard of – as are instructions about how courts should wield the power afforded to them under the constitution to retrospectively assess whether enforcing a law enacted by parliament would result in an obvious conflict with the constitution.”

He also reserved sharp criticism at the chairperson of the Constitutional Law Committee, Heikki Vestman (NCP).

“The chairperson has adopted forcing through government proposals as his north star, clutched at legal straws and superficial justifications that have been taken out of context, argued against experts and asked them leading questions,” catalogued Tuori. “Nothing like this has ever happened before.”

The shift, he viewed, has been evident since the start of the electoral term, with the committee systematically placing less and less emphasis on human rights in order to green-light government bills.

In Finland, the balance between law and politics has rested largely on conventional rules on propriety, including respecting legal expertise and the chairperson acting fairly and rising above party politics.

Also opposition parties have contributed to the politicisation, though.

The Social Democratic Parliamentary Group has tried to silence members who oppose the special act, according to Helsingin Sanomat. Chairperson Tytti Tuppurainen has even reprimanded lawmakers who dared to voice their opposition to the act before the group had cemented its position. One such lawmaker was Elisa Gebhard, who had deputised Maria Guzenina in eight of the nine meetings the Constitutional Law Committee.

Guzenina replaced Gebhard in the decisive meeting on 18 June, when the committee adopted its position by a vote of 15 for, 2 against. Gebhard had earlier that week expressed her support for an alternative statement drafted by Anna Kontula (LA).

“The all-important conventional rules also state that you shouldn’t tie the hands of committee members with group decisions and that committee members shouldn’t face reprimands in hindsight. If these kinds of rules collapse, so will the credibility and reliability of the advance constitutional review exercised by the committee,” cautioned Tuori.

“Because of partisan politicisation, deaths bells have started ringing for the committee.”

Vestman rejected the claim about the politicisation of the committee to Helsingin Sanomat on Saturday.

“It wasn’t politicised last electoral term, when similar claims were made, and I don’t think it has become politicised this electoral term. The committee carries out judicial reviews and has founded its statements on the constitution, the travaux préparatoires and the established interpretations. Not once this electoral term has the committee ruled on an issue against the unanimous opinion of experts, but it has acted within the framework of expert statements,” he countered.

Aleksi Teivainen – HT