Conclusions
In essence, the level of transparency is emphasised differently in the three systems analysed here (see Table 8.1). While the procedural rules relating to French ex ante review are far from promoting openness, the legal reasoning adopted achieves openness better than a review based purely on legal literature might tend to indicate.
The Finnish system may look as if it promotes openness both in its process and argumentation, but closer scrutiny reveals deficiencies in both these areas. The Swedish system is based on openness of both in the procedural and argumentative sense but has some peculiarities relating to argumentation (blakriteanmarkningar). The highly distinctive feature of the Swedish system lies in members’ activities, for example in terms of commenting on sensitive issues in public and potentially taking a passive approach to the role, together with the connections with politics involved in the review process.[663] In sum, reflections of openness may vary radically within each system depending on whether such openness is evaluated either from a legal argumentation or procedural perspective: the French system demonstrates this well. In addition, black letter law does not offer a full picture of how openness is actually enforced: the amount of unwritten constitutional practices in the Finnish system is an eye-opening example of this.Significantly, the nature of the argumentation used in these three systems is relatively similar. All three belong to the civil law tradition, and the common formalistic style of reasoning has its roots in that legal tradition.[664] Furthermore, the reliance on a single opinion has been seen as a common feature of reasoning in systems where constitutionality review is centralised and conducted in the abstract.[665] However, despite these common themes, Finnish ex ante reasoning lags behind in terms of openness of argumentation in hard cases.
Table 8.1 Summary of the comparison
| General remarks | Openness of argumentation (in hard cases) | Openness of process | General attitude towards transparency | |||
| Composition | Effects of the review | Dissenting opinions | Distinctive features | |||
| PeV | • 17 Members of Parliament (no requirement for legal education) • Secretariat (with legal background) • Consults law professors regularly | De facto binding | Allowed, but in practice aims at unanimity | Highly formal and technical, underpinning values or conflicting sides of the case are not stated | Secret deliberations Minutes of the meetings are published Expert opinions are published Public access to documents is provided Unwritten established practices relating to the process | Cautious attitude on the part of members, experts and the secretary |
| Lagradet | Six present or retired judges of the supreme courts Civil servant preparing the hearings | Only advisory, not binding | Allowed, but in practice aims at unanimity | Rather short, but conflicting sides are openly stated | Secrecy is not formally required Extracts of the minutes are published Public access to documents is provided | Peculiarly open attitude to transparency on the part of the participants in the review (members of the Lagradet and. for example, civil servants) |
(continued)
Table 8.1 (continued)
| General remarks | Openness of argumentation (in hard cases) | Openness of process | General attitude towards transparency | |||
| Composition | Effects of the review | Dissenting opinions | Distinctive features | |||
| Conseil constitutionnel | Nine ordinary members (no requirement for legal education) and former Presidents of the Republic Secretary General (with legal background) Legal Services | Legally binding | Not allowed | Close to general legal argumentation exercised by French courts: formal, but states conflicting sides of the case | Secret deliberations Minutes of the meetings are not public (now access to 25-year-old minutes is allowed for researchers) Public access to documents is not provided Unwritten practices relating to. for example, the role of the General Secretary and Legal Services | Cautious attitude on the part of the members, the secretary and legal services (e.g. strict prohibition on members disclosing the votes in public) |
Openness of Constitutional Review: A Comparative Analysis..
Source The author
M. Dahlberg
No sharp distinction can be drawn between politics and constitutional law. However, the European constitutional controllers tend to emphasise proper deference to legislatures when evaluating the constitutionality of laws.[666] The close relationship between law and politics is inevitable in all the systems analysed. In essence, all three systems try to maintain a certain distance from politics since constitutional review has its roots in a hierarchy of norms under which law and politics should be kept separate.[667] Furthermore, the legitimacy of constitutional review stems from the fact that it is legal and not political in nature.[668] Avoiding politicisation has influenced both the openness of legal argumentation and the procedures followed.
With regards legal argumentation, the interpretations made by the three ex ante review systems analysed seek to conceal rather than acknowledge the policy choices made by their members. The more or less formal structures utilised together with the relatively short reasoning mask many important steps in the reasoning. Consequently, in each of the three systems, the reader is usually faced with opacity when reading the constitutional argumentation since she cannot make sense of the successive steps leading to the conclusions mainly because not all the relevant arguments are openly stated. In fact, the opinions provided are usually designed to achieve the opposite: to conceal the political choices and evaluations made. This is somewhat absurd since constitutional judges unavoidably create new law and thereby produce policy outputs.[669] When it comes to the openness of procedures, all the analysed systems to a certain extent secure the most sensitive part of the procedure, i.e. judicial deliberation. While the custom in the Finnish and French systems is for this to take place behind closed doors, in the Swedish system only extracts of meeting minutes are published, which does not reveal, for example, what questions were presented by the members and how the relevant government official answered these questions or what critical opinions were expressed.It is, crucially, a common feature of the Finnish and French systems that public discussion is encouraged only after the ex ante review is done. In tandem with the Conseil’s publication of the decision, it also publishes a press release and a quasiofficial commentary on the decision on its website. Alongside its final statement, the PeV also publishes the written expert opinions on its website. Furthermore, established unwritten practice in Finnish ex ante constitutional review emphasises caution on the part of the legal experts consulted by the PeV to the effect that they should not express their views in public while the decision in relation to the matter at hand is still pending.
The possibility of public discussion is closely related to the maintenance of liberal democracy. Currently, the rise of populism, sectarian movements and economic inequality challenge liberal democracy, and constitutional democracies are weakening at an alarming speed.[670] Therefore, researchers have sought to identify ways in which liberal democracy may be strengthened. A broad emphasis on critical and open free speech and on the maintenance of a free press is a common theme in these studies. Significantly, providing for public debate and political participation are described as core aspects of liberal democracy.[671] Against this backdrop, the openness of the procedures relating to ex ante constitutional review is relevant in the three systems analysed above. In order to safeguard liberal democracy, public discussion should be promoted. Procedural openness and access to information are in any case preconditions for having public debate at all. The Finnish and French approaches, which essentially support openness only after the case is closed, are highly problematic from a liberal democracy perspective. Strengthening liberal democracy calls for the ongoing processes of ex ante constitutional review to be characterised by greater openness and for access to information to be granted much earlier than after 25 years have passed. Significantly, the procedural openness of ex ante constitutional review is relevant not only to the achievement of accountability in respect of the review as such, but it also contributes to upholding liberal democracy, which is an aim that all actors in society should certainly find worth pursuing.
Lastly, one can observe that the level of information relating to these systems differs greatly. The websites of these institutions contain information largely produced in the native languages of each country. In particular, if one wants to know more about the Finnish ex ante review process, one needs to understand Finnish. The websites and the PeV’s statements are only in Finnish. The same applies to the Lagradet whose opinions are published only in Swedish. The French system makes a happy exception. In addition to the Conseil’s websites, many of the decisions given by the Conseil are translated into English, German and Spanish. Therefore, openness to a wider public is taken into account in the French model but wholly neglected in the Finnish and Swedish systems.
The political sphere has an influence on both the openness of the procedure and legal argumentation: in all three systems studied here something is left unsaid, which usually concerns politically or morally sensitive issues. However, one might ask what consequences full transparency would have as regards, for example, the legitimacy of the constitutional review. Does this also emphasise issues other than transparency? This is clearly a question for further research.