Introduction
Some countries place an emphasis on constitutional scrutiny of laws prior to their entry into force. This is a process known as ex ante constitutional review. All the same, even where ex ante review is carried out, constitutional scrutiny is also frequently exercised ex post (after the laws have entered into force).
However, where both ex ante and ex post scrutiny is carried out, national legal systems vary as to which is considered more significant. This chapter focuses on ex ante review, the importance of which is emphasised in the Finnish, Swedish and French systems.[520] I have chosen to analyse three European legal systems where constitutional review is preventive in nature.[521] However, the approach taken is by no means similar in each system. In addition, these systems also recognise ex post judicial constitutional review. The three systems under consideration have been chosen as in each constitutional review is exercised by a constitutional organ before the legislation enters into force, which thereby exercises a comparable function.[522] The concept of constitutional review is a wide one, as it includes both legally binding and non-binding opinions given ex ante by constitutional organs. Consequently, the chapter follows the general topic of the yearbook relating to constitutional advice.The positive aspect of ex ante review is that, in principle, no laws that conflict with the national constitution can enter into force. Therefore, the primary aim of such review is to ensure that the legislature does not overstep constitutional boundaries.[523] The challenging side is that this review, which is essentially legal in nature, is carried out in a highly political context.[524] For example, the body responsible for the review generally works in close proximity with the legislative organs, and its assessment of the constitutionality of the legislative bill has effects that are highly political in nature (e.g.
whether or not it is viable to implement the planned legislation). In addition to ex ante control being exercised in a highly political climate, the same applies to ex post control. For example, there is a clear political aspect to the US Supreme Court’s constitutional control.[525] The same is also true in Europe: for instance, the German Federal Constitutional Court (Bundesverfassungsgericht) and the Court of Justice of the European Union work in highly political contexts when conducting ex post constitutional review.[526]Generally, constitutional questions usually attract wide public interest because they concern the use of public power and basic rights. Taking all these issues into account, interpretations of ex ante review are of public interest. In a democratic society, the public have the right to be informed and participate in discussions ofissues affecting society. As such, there seems to be good grounds for ensuring transparency in regard to the matters decided on in the course of ex ante review.
In brief, transparency[527] is generally seen as a precondition for public participation, which bolsters democracy and the accountability of public actors and decisionmakers.[528] Constitutional ex ante review, albeit largely based on legal argumentation and evaluation, is carried out in a clearly political sphere, and this should be borne in mind when seeking to ensure its transparency. In practice, this type of review involves both judicial and political decision-making and concerns legislative proposals whose implementation it may potentially slow down or make subject to conditions. Constitutional review of a legislative bill may be a highly sensitive issue, and achieving transparency of all stages of legislative decision-making may make it harder to find a consensus.[529] From the judicial decision-making perspective, the openness of judicial proceedings is one of the conditions of a fair trial.[530] In short, the desirability for transparency in respect to ex ante constitutional review is open to debate, with opinions between researchers and policy makers diverging.
In this chapter ‘transparency’ denotes the degree of openness regarding the process and substance of constitutional review and the way in which public access to documents linked to the constitutional review is provided.
The openness of the process of ex ante review relates to the openness of both the working methods and general procedural rules relating to the review (the public knows how the case proceeds and what peculiarities are involved in each phase). The openness of the procedures can be increased by, for example, recording the hearings so that anyone can watch them on websites that provide video streaming. The procedure may also be open in the sense that pending cases are openly listed, and the minutes of the meetings are publicly available. The aim of the procedural openness is to enable the public to be informed and take part in societally interesting discussions. In addition, public access to documents relating to ex ante constitutional review clearly enhances openness and public participation therein.References to the substance relating to ex ante constitutional review denote the openness of the constitutional deliberation carried out in respect of the cases. The legitimacy of this process has been described as focusing on constitutional argumentation instead of on the democratic content of the sources of law on which the adjudication is based.[531] Openness of constitutional deliberation means that the legal argumentation should include a statement of arguments both for and against the chosen constitutional position, and the competing arguments and underlying values must then be balanced against each other. The ability to give a dissenting opinion stands as evidence of the ability to exercise independent judgment in respect of the issue at hand. The right to express dissenting opinions ensures, as a last resort, that arguments against the majority interpretation are heard, and it allows the issue of constitutional interpretation that caused debate to be identified. In addition, the members of the relevant body can enhance the openness of ex ante review by commenting in public on the matters handled by the body and on the body’s working methods.
The key question addressed in this chapter concerns the level of transparency of ex ante constitutional review in the different legal systems assessed.
The opinions expressed in the context of ex ante constitutional review tend to be publicly accessible. Even if the government and the legislature are not strictly required to follow them, their public disclosure makes them difficult to ignore. A negative opinion is always followed by a stage of public accommodation and justification: if the government proposes something that is constitutionally questionable, this will be in the context of a proper public discussion.[532] Consequently, I consider openness in respect of ex ante constitutional review to be an integral part of democracy and the rule of law.I will not answer the question of what constitutes an appropriate level of transparency in respect of a constitutional ex ante review, but rather I will show that such transparency may be handled in different ways. All the same, I will take a strong stand to the effect that ex ante constitutional law argumentation should meet a certain standard of openness, particularly in hard constitutional law cases. The key issue here is to ascertain the three systems’ level of transparency and to consider what can be deduced from this.
The structure of the chapter is as follows. First, it discusses the transparency requirement in the context of ex ante constitutional review, noting the arguments both for and against transparency both in ex ante constitutional review itself and more generally in political processes. Second, it analyses the three national case studies outlined above. The analysis focuses on the degree of openness of the procedures and substance relating to such review and how public access to such review-related documents is provided in each system. Lastly, conclusions are drawn.
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