Transparency of Ex Ante Constitutional Review: Arguments For and Against
Public opinion and public discourse matter a great deal in the context of constitutional interpretation, either explicitly or implicitly. One aspect of this is that such interpretation cannot stray too far from mainstream public opinion.[533] In addition, the pros and cons of transparency on the part of constitutional adjudicators are made clear.[534] When analysing transparency issues relating to ex ante constitutional review one must take into account that constitutional interpretation is performed in a distinctively political context.
Not only does the body responsible for such review often work in close contact with political actors, but the effects of its decisions are highly political in nature since the review concerns a legislative bill priority to its entry into force. It is also worth noting that ex ante constitutional review by non-judicial organs usually casts politicians in an apparently significant role in terms of ensuring the constitutionality of laws.[535] Therefore, this issue must be considered from both judicial and political standpoints.Increased transparency has been seen as an added value of the legislative process in general. The demand for transparency in legislative processes is based on the principle of democracy, the need for accountability in respect of public power, and citizens’ participatory rights. In practice, transparency ensures that citizens are able to see what kind of legislation is being drafted as well as evaluate it and take part in the decision-making processes.[536] However, there runs the risk that wider disclosure of legislative committees’ activity could undermine their ability to work as ‘consensusbuilding’ arenas and thus affect their legislative capacity.[537] In fact, increased levels of transparency favour an institutional move towards assigning overarching importance to the most sensational declarations and populist posturing that will be echoed in the media.
Therefore, the growing transparency of legislative activity has caused a shift in legislative decision-making away from committees and even to outside the legislature.[538]It has been argued that a number of obstacles to achieving greater transparency are created by publishing legal advice given to parliamentary committees. First, parliamentary staff’s impartiality can be called into question. Second, the general inclination of parliamentary committees to remain in the background is no longer upheld. Lastly, the focus is steered away from the committee’s decision to the legal advisors’ opinions.[539] On the other hand, some have argued that there are benefits to publishing such advice since transparency in this regard alleviates concerns surrounding over-reliance on legal advice and increases public scrutiny.[540]
The outcome of ex ante constitutional review affects political decision-making either directly or indirectly through accepting, correcting, modifying or criticising the legislative proposal. Therefore, assessment concerning transparency of political decision-making processes should be taken into account. It is often taken for granted that the openness of political processes is a condition of their perceived legitimacy and is key to securing public accountability.[541] However, transparency may also have negative effects in relation to public trust and the accountability of decision-makers.[542] For example, giving people more information about political decision-making processes may result in confusion if it involves overloading people with contradictory information, and it may decrease people’s perceptions of the system’s legitimacy when it reveals facts they find difficult to accept.[543]
The transparency of ex ante constitutional review may also be approached from a legal argumentation perspective where a rational constitutional discourse is defined as one in which difficult constitutional issues are decided not on the basis of authority, hierarchy and supremacy but on the basis of open, reasoned and rational argumen- tation.[544] Rational argumentation theory posits that the acceptability of judicial decisions derives from legal argumentation based on the underpinning values of the community. When judicial decisions are based on commonly accepted values, the ideal audience can accept them.[545] The demand for open argumentation is emphasised in hard constitutional law cases, which are either particularly value-sensitive or where either the national constitution or the country’s international obligations seem to require fundamental changes to existing constitutional doctrine, legislation or legal practice.
In these cases, openness of legal argumentation would ensure that conflicting values are balanced against each other and that all underlying arguments are carefully considered. I will analyse one hard constitutional law case from each system in order to demonstrate how such openness is achieved.It should be noted that the opinions of those involved in carrying out ex ante constitutional review vary greatly from case to case. In easy cases they may routinely have nothing to say about the proposed bill. Conversely, in hard cases the bill under review may be subjected to major critique. Hard cases are related to conflicting rights or values or situations in which the legislator’s competence is constrained by constitutional provisions or international obligations. Consequently, the legal reasoning utilised varies a great deal between easy and hard cases. This chapter focuses on the hard cases in relation to the issue of openness. In a nutshell, when the ex ante reviewer finds that the legislative bill is not in conformity with the constitution—or European Union (EU) law or the European Convention on Human Rights (ECHR)—it must state this clearly.[546]
The Finnish, Swedish and French systems provide for the publication of the ex ante review’s outcome. However, the statements given tend to be rather formal and short. In the light of this it may be argued that openness of ex ante review should mean more than the mere publication of such highly formal statements which simply indicate whether the legislative bill is in conformity with the constitution. Consequently, the issue of openness is addressed here by paying special attention to the following: (1) the style of constitutional argumentation used in hard cases, whether dissenting opinions can be expressed and whether this possibility is actually used; (2) how the procedural rules and working methods reflect openness and whether the public have access to documents relating to the ex ante review; and (3) whether those involved in the ex ante review process promote openness and public discussion.
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