Politicizing Constitutional Review

In July, the Finnish Parliament (Eduskunta) did something unprecedented: it passed the Act on Temporary Measures to Combat Instrumentalised Migration with a 5/6 majority. The law authorizes border guards to refuse applications for international protection in a limited area on Finland’s border – in practice, the eastern land border – except for persons considered vulnerable or assessed to face inhuman or degrading treatment upon return. In force until July 2025, the law can be activated by the government together with the President of the Republic when there is evidence or justified suspicion of migrant instrumentalisation for a maximum of one month at a time. So far, the law has not been activated, and the eastern border has stayed closed since April 2024.

The Constitutional Law Committee, a Parliamentary organ in charge of ex ante constitutional review of legislation, greenlighted the Act despite the fact that all of the 18 legal experts it consulted found it to be in conflict with the Constitution, human rights obligations and EU law. This sparked a discussion about the politicization of the Committee and the role its experts play both in the Committee and the media. In this blog, I argue that the Committee’s politicization is visible in how it dressed political arguments as legal when assessing the law.

An Ideal of Neutrality

The Constitutional Law Committee has a key role in the Finnish system of constitutional review: in accordance with Section 74 of the Constitution, it reviews the compatibility of legislative proposals with the Constitution and human rights treaties before they are passed. As Finland does not have a constitutional court, the Committee’s ex ante review is crucial.

Although composed of members of Parliament, the Committee’s role differs from other parliamentary committees in that its reasoning is supposed to be legal, not political. To reach this goal, the Committee has a long-standing practice of following the advice of the legal experts that it chooses to hear. What is more, it is a tacit agreement that parliamentarians abandon their political commitments when entering the Constitutional Law Committee. Neutrality is of course an ideal not perfectly implemented in day-to-day deliberations of a parliamentary organ – but if the ideal is lost, neutrality is even less likely to be reached. Finally, while the Committee’s statements are binding, bindingness is not anchored in written law but based on constitutional custom. The Committee’s credibility and legitimacy therefore depend on the quality of its statements.

Derogating from Human Rights Obligations through an Exceptive Law

When assessing the pushback law, the Committee held that although the proposal is in conflict with human rights obligations, EU law and the Constitution, it can be passed as an exceptive law, that is, a law that conflicts with the Constitution and is adopted under the procedure for constitutional enactment. The Committee – with two members dissenting against a majority of 15 – greenlighted the proposal on the condition that it is complemented with remedies. Nevertheless, it did not require the remedy to have suspensive effect, nor did it require access to court. Such a remedy does not fulfil the criteria of EU law and ECtHR case law (Article 9 Asylum Procedures Directive; Article 47 Charter of Fundamental Rights of the EU; eg M.K. and others v. Poland, para 143).

Despite admitting that the proposal conflicts with human rights obligations, the Committee downplayed the scale of the conflict. It stressed, for example, that derogations are “temporally, geographically and substantively limited” and that “human rights obligations remain fully in force” outside the “limited scope” of the law (para 45). Moreover, regarding EU law, the Committee implied that security-based exceptions based on Articles 4(2) TEU and 72 TFEU can be interpreted to remove the conflicts with EU law. However, the CJEU judgment that the Committee referred to in reaching this conclusion crucially differs from the situation at hand as it concerned rights that can be limited as opposed to non-derogable ones (La Quadrature du Net and others, paras 134-139).

The Committee left the problems with EU law to the Parliament’s Administration Committee to fix, which did not really address them. Although the major opposition party ­– the Social Democrats –claimed to have made substantial improvements to the amended proposal, the changes were purely cosmetic. The parliamentary vote hinged on the Social Democrats, some of whom eventually voted against it.

The Parliamentary Ombudsman and the Chancellor of Justice, the supreme overseers of legality tasked with monitoring the implementation of fundamental and human rights (Sections 108 and 109 of the Constitution), also took a favourable view of the government bill. The Ombudsman went even further than the government bill and advocated for a conceptual separation between “real” and “instrumentalised” asylum-seeking, a distinction that does not correspond to the realities on the ground. The Chancellor of Justice, while criticizing some aspects of the proposal, did not see legal obstacles to its adoption.

Legally Flawed Arguments

According to the core of the statement of the Constitutional Law Committee (para 49):

“If the sovereignty and national security of a state governed by the rule of law are in serious jeopardy, the Constitutional Law Committee is of the opinion that a state governed by the rule of law must have the right to take measures that are necessary to avert the danger, even if the necessary countermeasures may appear to be in conflict with human rights obligations, if these obligations were formulated and committed to without foreseeing activities causing such serious risks [emphasis added]. It is essential that, in a state governed by the rule of law, the powers that can be considered necessary to prevent the aforementioned danger when assessed beforehand must be established by law.”

The statement implies that there is no obligation in a state governed by the rule of law to abide by international treaties that are not up to date according to the state’s own interpretation. The Committee does refer to Article 27 Vienna Convention on the Law of Treaties, according to which a State cannot invoke its internal law as justification for a failure to perform a treaty. Nevertheless, the Committee reasons that from a Finnish constitutional law perspective, an Act that violates human rights obligations can be adopted. This goes against the Finnish constitutional tradition of perceiving national and international frameworks as intertwined. The reasoning openly questions and even disrespects international agreements and EU law, conceptualizing the Constitution of Finland as separate from them. It is not a long shot to predict that this argument can be taken out of context and used to justify limitations of any right.

In addition to arguing that the law can be passed despite conflicts with international human rights obligations, the Committee seems to suggest both to re-define the nature of the situation as well as to re-interpret international obligations to allow passing the law. For example, regarding security-based exceptions from EU law, the Committee advised the Administration Committee to examine whether they could be interpreted so that the conflict with EU law would disappear. Concerning human rights treaties, the Administration Committee went even further in advocating for “new interpretations”. This implies that the interpretation of international law and EU law obligations should be guided by political demands and exigencies, such as security concerns, disregarding the criteria for limiting rights. Moreover, the Administration Committee characterized Finland’s situation as different from situations of other countries and downplayed the significance of relevant ECtHR and CJEU cases by arguing, for example, that the CJEU has not assessed a case comparable to Finland’s situation.

Globally, there is nothing new in relying on security when deporting unwanted migrants. In Finland, too, securitization of migration has been a long-standing development. What is new in the Finnish context, however, is the attempt to create a parallel system inside the current framework for limiting rights. If absolute and non-derogable rights such as non-refoulement can be derogated from, it is hard to argue that the same would not apply to other rights. Crises favour the executive, but they also favour a parliamentary body in charge of interpreting the legislation without the controllability of argumentation of courts.

Breaking the Norm

Just before the Committee gave its statement, Finland’s main newspaper interviewed all 18 legal scholars consulted by the Committee, all of whom held that the law cannot be enacted. When introducing the statement, the Committee’s chair announced that it does not matter how many of the experts share the Committee’s view. In the media, the chair emphasized that the Committee’s deliberations were strictly legal, underlining that it evaluated the arguments presented and chose the best argument.

Of course, nobody would advocate that the Committee use a mathematical formula in which four expert opinions automatically trump three opposite opinions. However, if the Committee does not build its conclusions on expert opinions, yet claims to be neutral, the question remains what the conclusions are based on.

The statement is therefore a clear deviation from the custom that the Committee should form its interpretation within the limits of expert opinions. This is especially indefensible because the pushback law was not a tricky interpretative situation of choosing the best legal argument among several valid paths, nor was it a balancing act between two conflicting rights which usually creates more room for disagreement and legal nuance. Legal persuasiveness did not seem to factor in the Committee’s argumentation. The main conclusions are not grounded in legal sources, at least not in relevant ones. The experts – the Parliamentary Ombudsman and the Chancellor of Justice excluded – specifically indicated that the interpretation adopted by the Committee is not possible in light of legal sources.

Time to Reform Constitutional Review?

Discussion about reforming the Finnish system of constitutional review has been ongoing for years but strongly resurfaced after the pushback law. The need to reform constitutional review also resorts from practical questions. The Committee is overburdened, as its workload has increased exponentially.

Most experts would not support the idea of abandoning ex ante constitutional review because of the benefits of detecting constitutional problems before laws enter into force, but many agree that the current system does not function as it should. A possible solution is strengthening courts, which have traditionally had a limited role in Finnish constitutional review. They currently must give primacy to the Constitution and disapply an Act if it is “in evident conflict” with the Constitution (Section 106). A key question has been whether the threshold of evident conflict is too high. In any case, access to courts gains importance if the Committee loses legitimacy. Politicization of constitutional control is one of the signs of rule of law backsliding.

The management of tensions between law and politics is an inevitable part of both ex ante and ex post constitutional review, but the abstract ex ante review is more prone to politicization. Research on Finnish constitutional review – based on interviews of Committee members, experts and secretaries from 2019-20 – finds that tensions between law and politics have intensified in recent decades. While the interviewees valued the goal of neutrality, they also acknowledged the intensified tensions, which partly result from increasingly perceiving societal issues as constitutional after Finland’s accession to EU and the ECHR in the 1990s. The increased media visibility of experts has also intensified political tensions. Moreover, several Committee members acknowledged that setting aside political interests in the Committee is challenging.

The politicization of the Constitutional Law Committee may have peaked with the pushback law because asylum-seekers are considered marginal in society. In this context, the question of whose rights are affected becomes more important than which rights and based on which criteria these rights can – or cannot – be limited. The idea of the Constitution, human rights treaties and EU law as a protector of everyone’s rights is then left aside.

The EU’s Core Values – Genuine Commitment or Grandstanding?

Finland’s example is already being followed by other states. Poland recently referred to Finland’s pushback law when justifying its plans to temporarily suspend asylum-seeking. The Commission’s spokesperson commented that Member States must follow the obligation to provide access to the asylum procedure and held that a “European solution” must be found to hybrid attacks “without compromising on our values”.

Pressure is now coming from several directions to clarify what these values entail. In May, eight Member States including Finland voiced their discontent with the recently accepted Pact, claiming that it is not enough to respond to instrumentalised migration. On 11 December, the Commission published a Communication on countering hybrid threats from the weaponisation of migration and strengthening security at the EU’s external borders. While the communication acknowledges the seriousness of the threat and grants political support to Member States adopting harsh measures to counter it, it also restates the legal framework according to which EU and international law must be respected even when using exceptional measures. Most importantly, it does not condone – nor condemn, for that matter – Finland’s pushback law.

Several of the experts consulted by the Constitutional Law Committee have made complaints to the Commission concerning the compliance of the pushback law with EU Treaties and secondary legislation. While the Commission does not have the authority to decide over the interpretation of EU law, its assessment matters not only for EU law but also for how the legislative process of the pushback law looks like for the Finnish public. The Commission can either legitimize what happened in the constitutional review process, thus blurring the line between legal and political, or reaffirm the EU law problems, in particular the explicit rejection of the principle of primacy by the Parliament of Finland. Ultimately, the question is whether the EU’s values – such as fundamental rights, rule of law principle, and primacy of EU law – are genuine commitments, or just political grandstanding used to criticize certain member states but not others.

Conflict of interest: The author is one of the 18 experts heard by the Constitutional Law Committee and the Administration Committee and one of the experts who submitted a complaint to the European Commission concerning the law.