Looking in the Mirror: the Rule of Law Challenges in Finland

Topic

The topic of my presentation makes it necessary to have a look at the state of the rule of law in Finland from outside, from a bird’s eye view. Obviously, I am biased, being part of the system - someone might even say, part of the problem. But anyhow, I shall try rather to be helpful for the solution.

A significant part of Finland’s EU Presidency, Autumn 2020, was advocating the respect for the rule of law. When preaching to others, it is necessary to look in the mirror: are we the best in class, do we have something to repair? Let us have a look at Finland’s challenges as regards to guarantees for the rule of law. As one of my predecessors, President Pekka Hallberg, used to say: If you look like your passport photo, you really need some vacation!

Well-being, Trust, and the Rule of Law

I would like to share with you a piece of news about Finland:

“Finland has been ranked 1st again in the annual World Happiness Report published by the Sustainable Development Solutions Network, a global initiative for the United Nations – retaining this prestigious title for the 4th consecutive year – a previously unseen accomplishment.”

The 2021 European Union Rule of Law Report presents positive and negative developments across the Member States in four key areas for the rule of law: the justice system, the anti-corruption framework, media pluralism and other institutional issues related to checks and balances.

The abstract of the country report of Finland includes i.a. the following:

The Finnish justice system continues to enjoy a very high level of perceived judicial independence. Finland continues to be perceived as one of the least corrupt countries in the EU and the world. Finland generally enjoys a free and protected environment for journalists and media professionals. The Government has adopted an Action Plan on Better Regulation, which aims at improving the quality, planning, and transparency of legislation. Most of the measures taken in the context of the COVID-19 pandemic were adopted based on ordinary legislation. Where emergency powers were used, the approval of Parliament and ex ante constitutionality review were required.

As emphasized forcefully by EU Commission President Ursula von der Leyen in her State of the EU 2021 speech, societies that build on democracy and common values stand on stable ground. “They have trust in people. These same values united the freedom fighters who tore down the Iron Curtain over 30 years ago. They wanted democracy. They wanted the freedom to choose their government. They wanted the rule of law and for everyone to be equal before the law. They wanted freedom of speech and independent media.”

To conclude, the rule of law and free media are connected to each other and to well-being and prosperity in a nation. The rule of law creates trust among the people, and trust of the people to courts and authorities. Free media is a watchdog guarding the work of public authorities and courts. As Minister Tytti Tuppurainen highlighted in her speech at Turku Europe Forum, democracy presupposes the rule of law and freedom of speech. Personally, I was extremely delighted that the Nobel Peace Prize Laureates 2021 were courageous journalists.

Definition and Characteristics of the Rule of Law

Let me get back to the very basics, the definition and characteristic features of the rule of law. Even though Article 2 of the EU Treaty about the common values of the Union is familiar to most of us, it deserves to be quoted here in extenso:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

Of note, EU is based on a liberal-pluralistic-democratic model where respect for human rights prevail. All the Member States have approved of and bound themselves by this model, at the latest when entering the Union. There is no room for illiberal democracy, advocated by Hungary’s Prime Minister Victor Orban. As former EU Judge Allan Rosas crystallized in a recent interview, no state can be a Member to 50 per cent. The whole system of internal market is based on mutual trust and respect for common rules.

The Venice Commission’s (European Commission for Democracy Through Law) rule of law checklist can be summarised as follows: 1) legality, including a transparent accountable and democratic process for enacting law, 2) legal certainty; 3) prohibition of arbitrariness; 4) access to justice before independent and impartial courts including judicial review of administrative acts; 5) respect for human rights; and 6) non-discrimination and equality before the law.

In my view, the Finnish Constitution provides cornerstones of the rule of law and separation of state powers elegantly and concisely:

The exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed. The legislative powers are exercised by the Parliament, the governmental powers by the President of the Republic and the Government, and the judicial powers by independent courts of law, with the Supreme Court and the Supreme Administrative Court as the highest instances.

However, professor Panu Minkkinen notes that we are gradually shifting from tripartite to factually dualistic model, where a strong government and weak Parliament only face the judiciary as a counterbalance. The courts shall secure proactively that basic rights are respected.

Challenges for the Rule of Law

When we hear news about the rule of law and courts, it is, in general, question about a problem, editor-in-chief Matti Kalliokoski writes. The Venice Commission checklist is an extensive (some 50 pages) compilation of features and challenges on the rule of law. It goes without saying that no country is free from problems linked to upholding the rule of law. Major or minor.

When looking in the mirror and tracing the challenges for the rule of law, one has – in my opinion – to focus on structural issues. For instance, domestic violence against women, childhood poverty, corruption, and inequalities within labour market are serious societal problems. However, I urge us to have a look at the independence of courts, access to justice, and delays of court cases. They are structural prerequisites which should enable correcting the aforementioned problems and human rights violations. Without effective access to independent courts having capacity to decide cases in due process in reasonable time, all rights are illusory. Of course, adequate substantive legislation is necessary, too.

Hence, we should raise our look from details to the big picture. Instead of concentrating on individual problems and shortcomings, we should try to detect threats facing basic structures of the rule of law. The most significant threat is the erosion of the rule of law, which may happen gradually, piece by piece. We see examples of this kind of development all over the world, also in the European Union and countries sharing the same standards with EU Member States.

In international comparison, what have been means and vehicles to violate the rule of law? Independence of courts is the bedrock of the rule of law. Independent courts are defenders of rights of people and the whole system of liberal democracy. In some countries, executive power tries to exert control over supreme courts and media to enable realising its political goals which may be incompatible with respect to human rights and rights of minorities. Acting formally based on democratic power and parliamentary majority, those in power may contravene the values of the EU and infringe the prerequisites of the rule of law.

We have – unfortunately – a rich case-law from the European Union Court of Justice and the European Court of Human Rights, indicating that especially Polish and Hungarian Governments have tried to take control over courts, especially the supreme courts. If the situation were not so serious, we might humorously call Poland a loyal customer of the EUCJ. Examples that are certainly known by all of you include for instance infringing in the irremovability of judges by lowering the mandatory retirement age, premature termination of Chief Justice’s term of office, structural changes, such as creating a disciplinary chamber in the supreme court, and so on.

Representatives of states having problems with the rule of law frequently try to point out drawbacks or anomalies in other countries. Some of these examples will be discussed later. Finns recall PM Orban’s critique, implying that Finland is not a rule of law state without a Constitutional Court!

One way of violating the independence of courts is court packing or hostile take-over. A paradigm example is President Franklin D. Roosevelt’s threat to appoint more justices into the US Supreme Court if the Court would invalidate his New Deal package. A more recent episode from the US where the rule of law nearly collapsed, is the Epiphany 2021 attack: President Trump did not acknowledge the election result, and his supporters tried to invade the Congress which was to confirm the result.

One concrete case on political power’s improper and illegal intervention comes from Iceland. When the Court of Appeal was founded, 15 judges were picked to the new court. An evaluation committee consisting mostly of the judiciary ranked the applicants, and the 15 most merited were expected to be appointed. However, the Minister of Justice decided to change the order laid down by the committee, by proposing four other candidates to be included in the list of 15 candidates. This was accepted by the Parliament and these four judges were appointed by the President of the Republic besides 11 candidates proposed by the committee. The ECtHR in its Grand Chamber judgment has declared that this violated the rule of law principle and the independence of the court.

In numerous court systems politics and law are merged in appointing judges. This seems to be most common in Constitutional Courts and courts which possess similar functions. By far the best-known example is the US Supreme Court, but e.g. appointing of judges into the German Federal Constitutional Court follows explicit party-political patterns. Maybe less known is the situation in Switzerland: Justices of the Federal Supreme Court must have a connection to a political party, and renewing of their term of office of six years has sometimes faced political pressure. A regrettable example from the UK was that some senior judges were stigmatized in the Daily Mail as “Enemies of the People” when judging the Brexit case. Now, there have been worrying motions to add political control on appointment of judges in the UK, and some analysts have already seen signs of judges becoming subservient to the political choices of the executive.

It cannot be denied that especially in judging on the constitutionality of acts of Parliament, courts possess political power, and, hence, it might be argued that the power should have democratic legitimacy. A much more serious development is if established rule of law states refuse to adopt the supremacy of EU law (like the Danish Supreme Court in AJOS case and the German Federal Constitutional Court in ECB case): other countries may go further (the Polish Constitutional Court).

This being said, I would like to emphasize that the rule of law is not a matter of taste. Neither is it a black or white issue. You recognize a rule of law state when you see one. It is about legal culture and practices. Just like there are, say, hundreds of different dog breeds, already a child can recognize that both a chihuahua and a German shepherd represent the same species.

The situation in Finland

As mentioned earlier, according to the EU Rule of Law Report the general picture about the rule of law in Finland is positive. The number of pending cases was assessed particularly low for civil and commercial cases and average for administrative cases, showing that the justice system overall copes well with its caseload. Although the courts have in general managed to continue their activities during the COVID-19 pandemic, stakeholders have reported delays in proceedings and some courts now deal with a backlog of cases.

To sum up: the overall situation in duration of case-handling is satisfactory, but we should strive for a better performance. Adequate resources are imperative in fulfilling the requirement for undelayed justice as a prerequisite of the rule of law. Regarding the resources for the judiciary in general, Finland could do much better. As a last resort remedy, there is a legally guaranteed system of compensation for delayed cases, but it would be better to use the money to speed up the procedures.

Examples from abroad concerning violations and infringements on courts’ independence raise some concerns, though. In Finland, the legalistic legal culture and established standards of practice between different state powers have duly respected the courts’ position. No signs of political influence in appointing judges, including court presidents or chief justices, can be detected. To my knowledge, all established political parties represented in Parliament show adequate respect for the rule of law.

However, we should not only be prepared for anticipated developments but also for more distant and even highly improbable threats. It would be naïve to think that nothing similar, what has been described earlier in my speech could never happen in Finland. Therefore, we should take a close look at the constitutional guarantees against manipulating the supreme courts. A system where radical changes concerning the judiciary could be made by powerful Government with single parliamentary majority, is vulnerable. At present, there are no adequate provisions either on the number of justices at the supreme courts or their mandatory retirement age in our Constitution.

True, there is no Constitutional Court in Finland. Nor is there one in any other Nordic country, and still, these countries are renowned as the most successful rule of law states. In Finland, the preventive control of constitutionality of Acts of Parliament takes place in the Parliament itself, in its Constitutional Law Committee. This is a unique system, but at least thus far the MPs sitting in the Committee have adopted a role of interpreters of the Constitution rather than that of politicians. The statement practice (“case-law”) of the Committee carefully follows its previous opinions, based on hearing of experts in Constitutional Law. The President of the Republic Sauli Niinistö has launched an idea of connecting the supreme courts with the pre-control of constitutionality. A joint statement procedure would, obviously, strengthen legal safeguards of the constitutionality check, but, on the other hand, could raise concerns about merging legislative and judicial functions.

What is often forgotten, the post-control is vested in courts of law, who frequently apply the Constitutional provisions in their interpretations (constitution-conform interpretation) and, also, shall give the Constitution primacy if a provision of an Act of Parliament in a concrete case is in evident conflict with the Constitution (sec 106). Regarding the principle of separation of powers, the system is balanced: the legislator bears the primary responsibility of constitutionality of legislation in advance, but the courts are entitled and obliged to correct conflicts of law with the constitution, especially to safeguard human rights. This may be one reason why the courts’ independence has not been attacked in Finland. Judging by the examples from abroad, in the unlikely event that Finland would create a Constitutional Court, it might hardly be much less political than the Committee, or certainly not apolitical.

One issue discussed vividly is if the criterion “evident” should be dropped from section 106. In my opinion, this would, to a minor extent, widen the scope of the courts when controlling constitutionality. It might strengthen the protection of constitutional rights without raising excessive worries about moving towards a judicial state. This amendment to the Constitution could be considered at the same time with eventual amendments guaranteeing the independence of the supreme courts. In Sweden the criterion has been lifted long ago, and at present a committee examines if and how constitutional guarantees for strengthening courts’ independence should be legislated.

In the end of the day, Finland’s rule of law passport photo looks good. Minor concerns prevail, and all the actors should be kept aware of them. The threat the rule of law is facing is rather erosion than revolution.