2016 Global Review of Constitutional Law

Finland
DEVELOPMENTS IN FINNISH CONSTITUTIONAL LAW
Laura Kirvesniemi, Ph.D. student, University of Helsinki; Milka Sormunen, Ph.D. student,
University of Helsinki; and Tuomas Ojanen, Professor of Constitutional Law, University
of Helsinki
FINLAND
INTRODUCTION
The year 2016 was unprecedented, even
tumultuous, in terms of constitutional law
and human rights in Finland. Several reasons
– immigration with the flood of asylum
applications, 1 the country’s economic problems
and problems related to the quality of
law-making and the desire by the sitting
Government to catch up with the ‘reform
debt’ as much as possible in the current
electoral term—coalesced to explain constitutional
turbulence during 2016.
In addition, some legislative proposals by
the Government deliberately tested the extreme
limits of the Constitution and human
rights treaties, particularly in the field of
asylum legislation, where the Government
wanted to diminish Finland’s (alleged) appeal
to asylum seekers. Such a ‘race-to-thebottom’
is in contrast to an earlier approach
by the Finnish legislature that has even
involved efforts to bend the domestic implementation
of EU law to secure the effective
protection of fundamental and human
rights. 2
This report provides an overview of practice
by the Constitutional Law Committee of
Parliament and the case law of the highest
courts: the Supreme Court and the Supreme
Administrative Court. The necessity to take
notice of the Constitutional Law Committee
alongside the Courts owes to the existence
of a pluralist system of constitutional review
in which the primary role is played by
abstract ex ante review of legislation by the
Committee whereas concrete ex post review
by the Courts assumes a secondary role.
THE CONSTITUTION AND THE
PLURALIST MODEL OF CON-
STITUTIONAL REVIEW WITH A
LIMITED ROLE FOR COURTS
The Constitution of Finland (Act No.
731/1999) 3 entered into force on 1 March
2000. The contemporary state of Finnish
constitutionalism is characterized by multifaceted
interplay and tension between constitutional
tradition revolving around legislative
supremacy and the understanding of
democracy as majority rule, on the one hand,
and tendencies towards rights-based review
of legislation and commitments to Europeanization
and internationalism, on the other .4
For a long time, courts had a marginal role
on the Finnish scene of constitutionalism,
including the prohibition of judicial review
of the Acts of Parliament for their compatibility
with the Constitution. Such traditional
features have increasingly been challenged
1
A total of 5,657 persons (2015: 32,476) applied for asylum in Finland in 2016. However, appeals against
negative asylum decisions by the Immigration Service started really pending before courts – the Administrative
Court of Helsinki and the Supreme Administrative Court – in 2016. For statistics regarding
asylum applications, see http://www.migri.fi/for_the_media/bulletins/press_releases/press_releases/1/0/
finnish_immigration_service_s_statistics_for_2016_record_number_of_decisions_71665.
2
Tuomas Ojanen, ‘The European Arrest Warrant in the Midnight Sun. The Implementation and Application
of the EAW in Finland.’ In: Guild E, Marin L (eds) Still Not Resolved? Constitutional Issues of the
European Arrest Warrant, (2009), Wolf Legal Publishers, 143.
3
Unofficial translation of the Constitution of Finland, including amendments up to 1112/2011, available
in English at https://www.finlex.fi/fi/laki/kaannokset/1999/en19990731.pdf.
4
Juha Lavapuro, Tuomas Ojanen and Martin Scheinin, ‘Rights-Based Constitutionalism in Finland and
the Development of Pluralist Constitutional Review’ [2011] 9 Intl J Cons L 505.
62 | I•CONnect-Clough Center