Analysis
At first sight, Finnish ex ante constitutional review appears to aim for openness since, for example, all minutes of the meetings of the PeV are published on the same day and the consultation of legal experts is done fairly openly (the experts’ names and their written opinions are made publicly available).
However, when one delves beneath the surface it emerges that the system is not as transparent as it seems. There are many established and non-written practices relating, for example, how legal experts are chosen and their real impact on the outcome.Nordic legal doctrine has emphasised the openness of legal argumentation, in contrast with the French approach.[658] When it comes to constitutional argumentation one might expect that, as is the case more generally with Nordic judicial reasoning, Finnish constitutional reasoning does not stick closely to the written statutory text but rather seeks a more general argumentative base for justificatory purposes. However, PeV’s legal argumentation is surprisingly formal and regularly incoherent with regard to hard cases. The argumentation neither states the conflicting interests involved in a case nor seeks to balance them, and consequently it falls far short of meeting the requirements of acceptable legal reasoning. In addition, the participants in the ex ante review reflect transparency in rather negative terms. Under the PeV’s unwritten practices, the members of the PeV do not express their views to the media, but rather it is the chair with the help of the secretary who represents the PeV in public. Furthermore, constitutional law experts are reluctant to present their views in public since being too active in the media may have a negative impact on their impartiality, and as such the PeV may not wish to consult them in the future.[659]
A relaxed approach to transparency is one of the most distinctive features of the Swedish system.
The general attitude that there is nothing wrong with revealing the existence of dissenting views between the members, or how the members consider their role as guardians of the Constitution or in critically analysing the Lagradet’s working methods and the political aspects of the review process can be seen by the various conferences held, the thematic issues published in national law journals, as well as the books written by the members of the Lagradet.The French style of legal argumentation is generally held to be rather formal and deductive and consequently does not entail expressing in full all the underlying arguments. However, the ex ante review exercised by the Conseil is rather similar to the Swedish and Finnish style of legal argumentation in ex ante review. Furthermore, compared to the Finnish way of avoiding arguments in cases of disagreement between members, the French legal culture is used to coping with legal argumentation characterised by disagreement and divergent views. One important practical difference relates to the members of the bodies exercising the ex ante review. The members of the Conseil are mostly retired politicians whereas the members of the PeV are current politicians who represent either the government or the opposition and seek to be re-elected. This may have an influence on the openness of the argumentation. In Finnish legal culture in general, instead of finding compulsory consensus, there has always been a well-used possibility to write a dissenting opinion if different interpretations and views exist. However, in addition to the practice of avoiding dissenting opinions within the PeV, the possibility to leave dissenting opinion is highly dependent on the skills of the members, who usually have no legal background. Therefore, dissenting opinions may not be legally reasoned but instead have the appearance of being politically motivated, which undermines their authority. In this sense, forced unanimity and the resultant incoherent legal argumentation are considered better than dissenting opinions that are conceived in the debate as being politically reasoned.
Both the Finnish and the French systems are influenced by the fact that the members responsible for the ex ante constitutional review are not required to have any legal education. In addition, their background is regularly political. Therefore, in both systems there are legal experts (the secretary and possible other legal experts) who advise (and guide) the members in the course of their constitutional deliberations. Distinctively, however, the role of these legal experts is not clearly expressed in the official documents and, consequently, their decisive role stays in the shadows. This is by no means ideal from a transparency point of view. The Swedish system differs from the other two since in Sweden ex ante constitutional review is carried out by judges. In addition, the Swedish system differs from the Finnish and French systems in relation to its advisory role. The Lagradet is clearly only an advisory body whose opinions can be disregarded (the Constitution even explicitly states this). Could these elements (judges give only advice which may be taken into account) explain why Swedish ex ante review reflects transparency so enthusiastically? In the Finnish and French systems, politically coloured members are responsible for the constitutionality review, and their opinion binds both the Government and the Parliament. Would an increase in openness reveal that the de facto power players are not the members of these bodies, but instead the legal secretary and legal experts who de jure only advise the members?[660]
Openness of ex ante review is pursued either through the openness of the argumentation or of the procedure. In this respect the systems diverge. With regards the former, the French and Swedish systems seem successful. None of the ex ante reviewers dwell on the underpinning values behind hard cases. However, the Conseil and Lagradet
usually, albeit briefly, express the conflicting sides of hard cases, whereas the PeV usually remains silent on such conflicts.
The result is somewhat surprising since the constitutional reasoning by the Conseil has been usually compared to the argumentation carried out by constitutional courts. Here, the French model has been seen as an exception due to the highly formal and brief method of constitutional reasoning it entails.[661] However, this research compares French constitutional argumentation with other systems that carry out equivalent ex ante constitutional review, making French constitutional argumentation surprisingly open. The other common feature of these systems is that dissenting opinions are either not possible (the Conseil) or not used in practice (the Lagradet and PeV). Therefore, the lack of dissenting opinions in all three systems leads to the likelihood of counter-arguments being left aside.With regard to the openness of the process, several findings may be made. While the French system succeeds from the openness of the legal argumentation perspective, it fails in respect to openness of procedure. Strict rules underpin the secrecy of the Conseil’s proceedings and, consequently, the issue of openness is neglected. Furthermore, the role of the Secretary General (which has around 70 staff members) and that of the Legal Services remain wholly unclear. Above all, the public has no access to documents relating to the Conseil’s ex ante review. Only since 2008 have legal scholars been permitted to access the minutes of the Conseil’s meetings, albeit with a 25-year time lag. In Finland and Sweden, public access to documents has a constitutional status, and as a consequence the public has access to documents relating to the ex ante review. However, in Finland deliberations relating to the ex ante review take place behind closed doors. Furthermore, the minutes of these meetings are brief and give little information as to the substance of the review. In addition, the proceedings before the PeV entail much unwritten (and thus non-public) practices of which the public is hardly aware.
The Lagradet’s practices stand out in terms of the enhanced openness of its ex ante procedures, which is possible mainly due to institutional reasons: the Lagradet is not a court and its task is only to give nonbinding advice. Therefore, the rules relating to the secrecy of judicial deliberations do not apply. Above all, in contrast to the PeV, members of the Lagradet are not politicians who must try to please the voters in order to be re-elected. This may affect how openly politically sensitive cases are reasoned. In addition, Swedish legal culture generally promotes transparency.Overall, the findings made above have a close linkage to the constitutional traditions of these systems. For example, the reluctance to undertake dynamic constitutional interpretation, thus limiting the legislator’s discretion, is clearly connected with the legal mentality underpinning all these systems, which emphasises respect for the democratically chosen legislator and will of the people.[662]
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