Blowing the Whistle
On 7 July 2022, Parliament of Finland unanimously adopted a set of Bills in response to security threats related to Russia’s aggression in Ukraine and radical changes in the country’s political and security situation, including its decision to seek membership of NATO. As such, a thorough rethink became necessary and there is nothing wrong about a country acting swiftly, decisively and through consensus-building. Immediately on 8 July, the President of the Republic signed the amendments into law, with 15 July 2022 as the date of entry into force. The unusually quick promulgation of the laws intentionally signals a sense of urgency and the determination of the nation to protect its population against external threats.
The purpose of this blog post nevertheless is to blow the whistle. What is now happening in Finland needs to be monitored closely by those who care about constitutionalism, rule of law and human rights. For someone who has been involved in the country’s turn in 1989-1990 from an unprincipled and at times self-censoring bystander into a champion of human rights and in 1995-1999 from a country with an almost meaningless and empty 1919 Constitution into one with an ambitious and internationalist new Constitution based on the rule of law and human rights, the current situation is nothing short of disheartening.
The new laws just adopted can be extremely dangerous tools in the hands of a cynical government with a right-wing-populist and/or kleptocratic agenda. As the composition of the current Government is left-green-centre, some people will dismiss my concerns by saying that the new problematic laws mainly are intended as strong signals to Russia and that they will not be taken into full, potentially highly problematic use. The plain facts, however, give rise to worries: parliamentary elections will be held in April 2023, both large opposition parties, the populist True Finns and the Conservatives, effectively took ownership of the parliamentary consideration of the Bills in question, and prevailing political rhetoric now is full of slogans that echo Donald Trump rather than the voices of human rights. There is good reason to be on high alert.
So, what did Finland just decide?
Deconstitutionalizing the Derogation Clause in the Constitution
Because of a sense of urgency related to Russia’s aggression against Ukraine and the as such logical response by Finland to seek membership of NATO, the Government concluded that there was an imminent need related to so-called hybrid threats where a foreign actor (read: Russia) seeks to advance its military-strategic objectives through non-military means that could destabilize the economy and security of Finland. The notion of a “hybrid threat” was not properly defined, and a major error of judgement was made by pursuing the project through an amendment of the Emergency Powers Act, rather than honestly admitting that a hybrid threat would not fit under the clause in Section 23 of the Constitution that defines the scope of exceptional circumstances in which constitutional rights may be derogated from through and ordinary Act of Parliament or through delegated legislative powers specifically authorized in an Act of Parliament.
I have explained Section 23 of the Constitution in an earlier blog post but its text reads:
Fundamental rights during situations of emergency
Temporary exceptions to fundamental rights that are compatible with Finland’s international human rights obligations and that are deemed necessary in the case of an armed attack against Finland or during other situations of emergency defined by an Act as posing a serious threat to the nation, may be enacted through an Act, or through a Government Decree issued on the basis of authorization given in an Act for a specific reason and subject to a precisely circumscribed scope of application. The grounds for temporary exceptions shall always be laid down by an Act.
Government Decrees concerning temporary exceptions shall without delay be submitted to Parliament for consideration. Parliament may decide whether the Decrees will be in force.
Instead of working for a definition of a new category of hybrid threats that would fit under this clause or for an amendment of the constitutional clause itself, the Government chose to amend the 2011 Emergency Powers Act. The problem is that this Act which replaced an earlier law with the same name failed to meet the requirements of the Constitution, mainly because of inadequately broad delegation of legislative powers to the executive, and therefore had to be adopted as a so-called Exceptive Act. An Exceptive Act is a law that is incompatible with the Constitution and must therefore be adopted in the same qualified procedure as an amendment of the Constitution itself. The whole institution is a remnant from the 19th century when Finland was an autonomous Grand-Duchy within the Russian Empire, with its own Constitution but without authority to amend it. The adoption of the Emergency Powers Act as an Exceptive Act in 2011 was a bad decision, then seen as a transitory phase while working for a proper Act that would finally conform to the Constitution. Consecutive Government coalitions have nevertheless failed to pursue this much needed reform.
As could be anticipated, the internal guardian of the Constitution within Parliament, its Constitutional Law Committee, held that the proposed amendment to insert a new hybrid threat category into the Emergency Powers Act would again require the qualified procedure for amending the Constitution (Opinion PeVL 29/2022). As expected, the Government coalition thereby became hostage to the Opposition, consisting of the populist True Finns and the Conservative party. To boot, the Chair of the Administration Committee that would deal with the amendment to the Border Guard Act is the leader of the True Finns, Ms Riikka Purra, while the Defence Committee that dealt with the amendment of the Emergency Powers Act is chaired by the Conservative Party leader Mr Petteri Orpo. It is hard to think of a more short-sighted strategy for the Government coalition than the one they had chosen to pursue. The Cabinet members who had prepared the two Bills – Ms Krista Mikkonen (Green Party) as Minister of the Interior and Ms Anna-Maja Henriksson (Swedish Liberal Party) as Minister of Justice – were side-lined and the Opposition took control, capitalizing on the procedural requirement that passing an Exceptive Act without waiting for intervening parliamentary elections (to be held in April 2023) would require a qualified majority of five-sixths in Parliament.
From the perspective of constitutionalism, however, the main flaw of the plan was not one of strategy but one of logic and principle. If the Constitution has a clause on the prerequisites for derogating from constitutional rights, then such a clause should be treated as not being subject to the exceptive enactments procedure and could not qualify as a “limited derogation” as under Section 73 of the Constitution (emphasis added):
Procedure for constitutional enactment
A proposal on the enactment, amendment or repeal of the Constitution or on the enactment of a limited derogation of the Constitution shall in the second reading be left in abeyance, by a majority of the votes cast, until the first parliamentary session following parliamentary elections. The proposal shall then, once the Committee has issued its report, be adopted without material alterations in one reading in a plenary session by a decision supported by at least two thirds of the votes cast.
However, the proposal may be declared urgent by a decision that has been supported by at least five sixths of the votes cast. In this event, the proposal is not left in abeyance and it can be adopted by a decision supported by at least two thirds of the votes cast.
The reference to a limited derogation was, however, ignored by the Constitutional Law Committee. As a consequence, Section 23 was in fact deconstitutionalized. From a logical perspective, one can even say that Finland no longer has a Constitution, as it was confirmed that even Section 23 is subject to derogation by a close to unanimous Parliament at will. The Constitution provides no protection for constitutional rights and international human rights against a supermajority in Parliament. There is no in abstracto judicial review before or after the entry into force of a law.
New Category of a Hybrid Emergency
Through an amendment of the Emergency Powers Act, a new sixth type of exceptional circumstances was inserted into Section 3 of said Act. The wording includes no mention of the term “hybrid” and remains vague and general, in fact replacing Section 23 of the Constitution in determining the preconditions for derogating from constitutional rights in exceptional circumstances. As formulated after a review of the Government Bill at the Constitutional Law Committee, in the Defence Committee’s Report PuVM 2/2022 of 27 June 2022, the new category came to read:
6) such a threat, action, event or combined effect of any of these that affects
a) the decision-making capacity of public authorities;
b) maintenance of border security or public order and security;
c) accessibility of necessary social and health or rescue services;
d) availability of energy, water, food, medicines or other necessary goods;
e) availability of necessary payment or securities services;
f) functioning of societally critical traffic systems; or
g) functioning of data and communication technology services or information systems that serve any of the functions mentioned in items a) to f);
either, as a consequence, functions necessary for the functioning of society in an essential and extensive way become hindered or paralysed;
or that in some other manner of comparable severity in a particularly serious and essential degree the functional capacity of society or the living conditions of the population become endangered.
Any reader trying to make sense of this clause should keep mind that it has been hastily crafted by MPs and not been subject to any institutionalized process of quality control, or to review of constitutionality and human rights conformity by the Constitutional Law Committee (in its final form). Without doing substantive injustice to the drafters, it is probably fair to say that the new category of exceptional circumstances can be triggered whenever the Government finds weighty reasons for doing so. In my view, the clause is a caricature of how a constitutional derogation clause should be drafted.
Amendments to the Border Guard Act
On 30 June, the Administration Committee chaired by Ms Riikka Purra, leader of the True Finns party, issued its Report HaVM 16/2022 on amendments to the Border Guard Act. The main provision of the amendment, on the closing of Finland’s borders and refusal to receive asylum applications, reads:
16 §. Temporary closing of a border crossing point, restricting cross-border traffic and concentration of applications for international protection
(1) Cabinet may decide of the closing of a border crossing point or of restricting cross-border traffic for a defined period of time or until further notice, if such closing or restricting is necessary for countering a severe threat to public order, national security or public health. In situations of urgency the Ministry of interior decides on immediate measures until the Cabinet resolves the matter. A decision by the Ministry of Interior must be immediately submitted to a plenary meeting of the Cabinet.
(2) Cabinet may decide of the concentration of applications for international protection at the national borders of Finland to one or more border crossing points if it is necessary for countering a severe threat to public order, national security or public health, and if the situation relates to:
1) an exceptionally large number of people entering the country within a short time; or
2) knowledge or reasonable suspicion that entries into the country are occurring under the influence of a foreign state or other actor.
(3) If Cabinet has made a decision under paragraph 2, it will be possible to apply for international protection at Finland’s national borders only at a border crossing point to which applications for international protection have been concentrated. Exceptions may be made in individual cases taking into account the rights of children, persons with disabilities or other persons in a particularly vulnerable situation.
(4) Border crossing points may not be closed, cross-border traffic may not be restricted and the consideration of applications for international protection may not be concentrated beyond what is necessary for countering a severe threat to public order, national security or public health. Such a decision must be repealed when it is no longer necessary for the countering of such a threat. The Ministry shall inform of a decision made under this Section to a sufficient extent.
(5) Measures taken under this Section must not prevent the right of a Finnish citizen to enter the country or the right of any person to leave the country or the freedom of movement that belongs to persons who fall within the scope of European Union Law, or any person’s right to receive international protection.
(6) Regulations concerning the consideration of matters pursuant to this Section through cooperation between the police, the Customs Agency and the Border Guard Agency may be issued by a Cabinet Decree.
This formulation of Section 16 has the force of law from 15 July 2022. Paradoxically, the prospect of Russia cynically instrumentalizing real migrant flows to destabilize Finland has resulted in that the True Finns Party managed cynically to instrumentalize hypothetical migrant flows to push through a law under which any government can almost in any situation close the borders, in breach of Finland’s human rights obligations.
Instead of engaging in a full legal analysis, I have highlighted some passages in this complicated but at the same time unsophisticated text of Section 16. The worst part of the provision is the wide definition of situations where the provision can be triggered, spelled out in the two disjunctively applicable sub-items of subsection 2: either exceptionally many entries to the country (which in Finland may not be very much) or evidence or suspicion of a foreign actor organizing border crossings. The bar is set very low, and the provision could be triggered in situations that do not constitute an emergency under the Emergency Powers Act. The first one of the alternative criteria in subsection 2 could be met for instance when a big sports event is organized in Finland and an “exceptionally large number” of people therefore visit the country. The second one is manifestly improperly drafted if the aim was to address the “hybrid threat” of Russia instrumentalizing migrants from third countries by directing their flow to the Finnish border. The words “under the influence” are much wider than “instrumentalization”, and there is no reference to third-country nationals. Hence, an ongoing genocide within the Russian Federation would qualify as a situation that meets the clause.
What follows is that the two criteria in subsection 2 are effectively meaningless as a delimitation and that the central clauses are elsewhere in subsections 1 and 2 which only require that the Government believes that there is a “severe” threat and that it is “necessary” to close the border. The many repetitive references to a necessity requirement in the provision are a meaningless mantra, as they relate to Cabinet decisions in abstracto and are not subject to appeal (see, Sections 7 and 8 of the Administrative Judicial Procedure Act 808/2019). There is no prospect of seizing domestic courts.
The final provision in subsection 5 on not preventing any person’s right to “receive” international protection is illusory and ineffective, rather than real and effective. In the Administration Committee’s report and in the parliamentary debates the architects of the provision frequently referred to their interpretation that it will be sufficient to keep one border crossing point open, for instance at Helsinki airport. The legislators apparently thought that the right to receive international protection could be secured if great masses seeking access to Finland over the 1300-kilometre long land border with Russia could simply turn around, get to an airport in Russia and buy a set of airline tickets that would take them to Helsinki. The clause on individual exceptions in subsection 3 is not much better. It reflects an idea that even if applications for international protection cannot be made elsewhere than at an open border crossing point (which perhaps will be found only at Helsinki airport), border guards or the military patrolling the forests in the border zone against Russia could on compassionate grounds take with them a child, a person with disabilities or a person with a particular vulnerability. The provision is manifestly unsuitable for addressing a situation of humanitarian crisis.
Another provision of interest is Section 50 that authorizes the construction, also on private land, of “a fence or other barrier, if it is necessary for maintaining border security”. This clause immediately received attention by the international press. My interpretation of the provision is that it merely subjects the landowner to the power of the state to construct a fence or barrier but it neither provides a legal basis for any authority to decide on the construction of such structures, nor for the allocation of budgetary funds for such a purpose.
A reasonable overall assessment of both provisions is that they primarily are political posturing by the opposition parties that were in the driver’s seat. That said, in the hands of a populist right-wing government they may prove extremely dangerous for the right to seek international protection and may actually be used effectively “to close the borders”, as was the slogan by the True Finns pushing for them. What is likely to be seen in six months from today is an election campaign by the True Finns and possibly some fraction of the Conservative Party under the slogan “We will build a wall, and the EU must pay for it”. This is what the current Government coalition invited by allowing themselves to be blackmailed by the Opposition. (For information: Through this public notice, I am hereby claiming intellectual property rights on the slogan presented just above. Hence, it must not be reproduced or used without my permission.)
Dismissing a Motion for New Review by the Constitutional Law Committee and Responding by Discrediting Critics and Preventing Dissent
Under Section 74 of the Constitution, Parliament’s Constitutional Law Committee has the mandate to issue Opinions on the constitutionality and human rights conformity of legislative proposals. It did issue its Opinions on the two Government Bills discussed here, but not on the final versions tabled at plenary session after the Defence Committee and the Administration Committee had in important ways amended them, under the leadership of Opposition party leaders.
Of particular relevance in the case is the fact that on the same day that the Administration Committee completed its work on the Border Guard Act, both of the highest European courts issued rulings that were of great significance in the matter, pushbacks of migrants and refusal to hear applications for international protection. The European Court of Human Rights issued its judgments in the cases of A.I. and Others v. Poland and A.B. and Others v. Poland, clarifying some aspects of the earlier case of N.D. and N.T. v. Spain and finding violations of Articles 3 and 13 and Protocol 4, Article 4, of the ECHR. The European Court of Justice, in turn, published its judgment in the M.A: Case C‑72/22 PPU against Lithuania, establishing breaches of EU law in issues of direct relevance for the assessment of Finland’s human rights obligations and proposed Section 16 of the Border Guard Act. In the Lithuanian case the Court of Justice ruled on the compatibility with European Union law of Lithuania´s new Aliens Act concerning detention of third country nationals in an irregular situation, and concerning limitations on lodging an application for international protection in situations of mass influx. The Court ruled Lithunian law, which limits the right to lodge an asylum application, to be incompatible with European Union Law, both with regard to the Asylum Procedures Directive 2013/32/EU, and Article 18 of the Charter of Fundamental Rights. The Court also ruled an automatic practice of detention of third country nationals to be incompatible with European Union law.
Despite knowledge of these fresh rulings, Finland’s Parliament nevertheless pushed through and adopted the amendments exactly in the form presented by the Defence Committee and Admi