Analytical Remarks on the Study of ConstitutionalAdvice

Approaching any topic, especially one as understudied as constitutional advice, necessitates an analytical framework. While it is beyond the scope of this intro­ductory chapter to suggest such a framework, several general remarks can be made in providing guidance when it comes to classifying and studying the topic.

A first remark on constitutional advice concerns the actors: who gives advice, viz. who is the advisor, and to whom is this advice given, viz. who is the advisee? With regard to both advisors and advisees, a distinction can be made between national actors on the one hand and international and transnational actors on the other. Most of the studies included in this volume focus on the role of national actors when giving and receiving constitutional advice, as illustrated among others in the chapters by Paul van Sasse van Ysselt (Chap. 4) on the Netherlands, Pernille Boye Koch on Denmark (Chap. 3) and Constantinos Kombos on Cyprus (Chap. 6).

In analysing the various national actors, it becomes apparent that courts and coun­cils of state in the mould of the French Council of State play a prominent role in giving advice on constitutional topics. Indeed, several of such institutions have been given a primary and explicit mandate to render legal assistance to other state bodies on constitutional matters. When it comes to distinguishing and characterising, Van Sasse van Ysselt shows us in his chapter on the Netherlands that there are many other actors or institutions with the task of giving constitutional advice to the Dutch government in its functions as executive and/or as co-legislator, as well as to parlia­ment. Besides the Council of State as the general legal advisor to the Dutch govern­ment, there are for example the National Ombudsman and the Netherlands Institute for Human Rights. Other bodies also exist with a more specialised mandate, such as the Authority on Data Protection and the Election Council.

As Koch shows in her chapter, constitutional advice does not necessarily come from independent and impartial actors, strictly speaking. Denmark has no body that is specifically tasked with assessing proposed legislation for compliance with consti­tutional law and international human rights. In practice, the responsibility for veri­fying the constitutionality of bills rests with the Legal Department of the Ministry of Justice. Notwithstanding professional standards, the civil servants who work there are obliged to work loyally for the government in office. From an institutional perspec­tive, their assessments therefore lack independence and impartiality. Examples such as this one, make it clear that the status of advisors, and the way in which this affects the content of advice, deserves separate examination.

Kombos’ chapter, which deals with constitutional advice in Cyprus, also approaches the topic from the perspective of the separation of powers. In Cyprus, almost all advisory power is concentrated in a single actor, the Attorney-General. As Kombos explains, this is the result of historical developments, not constitutional design. The constitutional intention was to have a duality of the office, whereby the posts of AG and deputy AG would be filled by a person from the Greek and a person from the Turkish community. Following the withdrawal of Turkish officials from their offices in the 1960s, both offices are now occupied by Greek-Cypriots, so that the bicommunal principle originally intended to be the main mechanism for checks and balances has been neutralised.

Apart from the national context, sources of advice beyond and free from a partic­ular domestic realm can also be identified. In this regard, one can generally speak of transnational actors who furnish advice of a constitutional nature, most often to national actors in various jurisdictions. Although sometimes used as synonyms, for present purposes a distinction can be drawn between international actors and other transnational actors. International actors are understood as organs of interna­tional law, like the United Nations or the World Trade Organization, both of which have been active in dispensing ‘guidance’ to states on questions of constitutional design; whereas the term ‘transnational’ denotes all other actors operating beyond national jurisdictions irrespective of how they are constituted. Transnational actors, on this reading, also include actors not constituted by international law as such, for instance individuals, NGOs, foreign development agencies and law firms.^[13] Drawing a distinction between international and other transnational actors in this way is useful given the wide and increasingly diverse range of constitutional advice-givers beyond the national realm. When it comes to transnational advice in relation to constitution­making in particular, Tushnet has expressed considerable doubt about the added value of ‘external observers’ in guiding the ‘reason and choice’ of constitution drafters.^[14] Instead, he emphasises the importance of ‘on-the-ground political circumstances’ in making constitutions, concluding that advice might only be beneficial on occasion.^[15] Whether one agrees with his scepticism about advice as such or not, it does rein­force the idea that while important decisions may physically be taken close to home, the content thereof may not be the product of an exclusively domestic deliberation process that has only featured the views and concerns of domestic stakeholders.

A second important remark concerns the range of topics regarding which advice can be furnished. As in the case of national advice, transnational advice covers abroad range of constitutionally related topics, ranging from domestic constitution-making to the protection of fundamental rights. In the domain of constitution-making or reform to be more precise, mention should be made—in addition to the organisations mentioned earlier—of the Commission for Democracy Through Law, better known as the Venice Commission. This Commission, which is an advisory body of the Council of Europe, provides constitutional advice to its members on a variety of topics, from the making and amending of constitutions to the design of electoral and other ‘small-c’ legislation, while it can further furnish amicus curiae opinions to requesting courts.^[16] On fundamental rights, there is amongst others the European Union Agency for Fundamental Rights, which is an independent international actor established in 2007 by EU law.^[17] The Agency is tasked with providing ‘assistance and expertise’ to other EU bodies and Member States in order to ‘fully respect fundamental rights’ when taking ‘measures’ or formulating ‘courses of action within their respective spheres of competence’.^[18] Interestingly, the example of this Agency shows that transnational advice does not always need to be directed at national actors, as other EU bodies can be supplied with advice, too. More recently, the European Commission has also started to render constitutional advice to the Member States, in the form of specific Opinions and Recommendations under the Rule of Law Framework in the case of Member States experiencing a decline in the rule of law, and also more generally and indirectly through its annual Rule of Law Report.^[19]

In their chapter on the Oversight Board, (Chap. 9) Matija Milos and Toni Pelic provide an instructive analysis of an embryonic transnational actor that does not amount to a typical organ of international law, but one whose prominence is likely to grow in the coming years: the Facebook Oversight Board. This Board has begun to issue decisions that engage with international fundamental rights norms, and Milos and Pelic predict that its decisions may in turn have an impact on national understand­ings of free speech norms.

A third remark in studying advice concerns the timing of its request and delivery. While constitutional review by the courts is often conducted ex post in many systems and instances, constitutional advice is usually provided before legislation is formally enacted. In his contribution (Chap. 5), Toon Moonen signals that advisory bodies like the Belgian Council of State have a characteristic that compensates for their lack of power or final authority and that makes them uniquely well-placed to weigh in on matters: they namely come into action early in the decision-making process. At a time when deliberation is still on-going and nothing is (politically or legally) carved in stone yet, taking the first bite of a constitutional issue as an advisor can decisively set the stage for its final determination, sometimes even many years later.

The contribution by Koch confirms the importance of the right timing for the effectiveness of constitutional advice, by giving a ‘negative’ example of advice that arguably comes too late. The Danish Institute for Human Rights advises on the compliance of Danish legislation with human rights, but the hearings take place only after bills have been presented to parliament.

In her contribution (Chap. 8), Dahlberg makes a novel comparison of ex ante constitutional review of legislative bills in the Finnish, Swedish and French systems, and more particularly in relation to transparency. She compares the legally binding review carried out by the French Constitutional Council with the non-binding review carried out by the Constitutional Law Committee of the Finnish Parliament and the Swedish Law Council. This exercise leads her to formulate several compara­tive conclusions that provide general food for thought. While all three systems of review for instance try to maintain a certain distance from politics, the reality is that a close relationship between law and politics is inevitable. When it comes to transparency, the conclusion is that reflections may differ widely within a system depending on whether transparency is measured in terms of legal argumentation or from a procedural perspective. Dahlberg identifies, among other things, deficiencies in both these areas in the case of Finland, points out some peculiarities when it comes to argumentation in Sweden and notes that procedural openness is lacking in France.

Finally, it must be remarked as explained above, that advice on constitutional topics is in principle non-binding, as opposed to the consequences attendant on the enactment of new legislation or the typical outcome of regular judicial review. The question about the effects of advice is deeper though than the formal distinction between norms that are binding and non-binding suggests. What influences the legit­imacy of advice, and under what circumstances is such advice adopted? Or, if advice is not adopted, what was its impact on the decision-making process? For instance, did advice stimulate dialogue between the participants, and so strengthen deliberative democracy? Did advice encourage the participants to better consider their reasons for not adopting advice, or only adopting it in part?

Van Sasse van Ysselt claims that the advisory opinions issued by the Dutch Council of State are considered to be authoritative. At the same time the effectiveness of (some of) its advice is sometimes discussed or at least hard to verify. This corresponds with the view of Mentko Nap (see Chap. 10) who studied the effectiveness of the opin­ions of the Dutch Council of State from a dialogical perspective. As Nap concludes, the Dutch Council of State’s legislative advice provides a countervailing power in debates on the constitutionality of proposed legislation. On the other hand, his chapter also reveals shortcomings in how the Council of State participates in constitutional dialogues. His findings lead him to conclude that the Council of State’s legislative advice is precarious in its degree and method of addressing issues of constitutionality. These inadequacies make it troublesome for the legislature to unquestioningly rely on its primary advisor when testing bills against the Constitution. In his view, consti­tutional dialogue theories can be used by the Council of State as an inspiration for recommendations on how to be an effective and persuasive advisor on constitutional interpretation.

The fact that the Council of State’s advisory analysis is not binding does not mean that a government or legislature can simply decide to ignore it. As Moonen states in his contribution on the Belgian Council of State, this advisory body is a node in a network and performs a signalling function towards other actors, notably the courts. Often, the Council of State has already put forward conclusions with regard to the points of law a court may later be asked to adjudicate. When there is a relevant advisory opinion of the Belgian Council of State available for the Belgian Constitutional Court to consider, the findings of the Court mostly correlate with those of the Council of State. The Court also mostly refers to the advisory opinions. However, Moonen believes that the Constitutional Court could do more to make it clear to its audience which part of the advisory opinion has actually played a role in its considerations, and to be explicit about when and why it (dis)agrees. Judicial bodies may reasonably disagree about the outcome of a constitutional question, so there is no reason to leave it to the reader to figure that out.

Yankson-Mensah and Moreno Mantilla in Chap. 7 undertake a comparative anal­ysis of the connections between constitutional advice and transitional justice in two transitional societies: Ghana and Colombia. In doing so, their chapter criti­cally analyses the effects of constitutional advice in these countries and examines how their different approaches to transitional justice have impacted constitutional and transitional processes. As they describe, the constitutional advice during the constitution-making process in Ghana was limited to the interests of an autocrat, which made the process undemocratic and created more polarisation in Ghanaian society. In Columbia, by contrast, the transitional process was much more inclusive, with the involvement of both civil society and international institutions, but this also made advice-giving subject to different competing interests, thereby complicating the process. The authors conclude that there is a need to coordinate and recognise non-formal constitutional advisers in transitional societies in order to enhance the constitution-making process and to guarantee the efficiency of the transitional justice mechanisms.

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