Constitutional interpretation can never be completely separated from politics, economist and former Finnish MP Juhana Vartiainen argues in a column.
Vartiainen takes aim at what he describes as a deeply rooted convention in the Finnish Parliament: the insistence that the work of its Constitutional Law Committee is essentially apolitical.
The committee plays a central role in Finland’s system of constitutional review. Among other things, its opinions determine whether government legislation can proceed through the ordinary legislative process.
According to Vartiainen, however, the distinction between legal and political judgment is never watertight.
He says his own six years in Parliament convinced him that politicians often approached the Constitutional Law Committee tactically, despite publicly emphasising its non-political character.
As an example, Vartiainen points to former prime minister Juha Sipilä’s failed attempt to introduce greater freedom of choice into Finland’s healthcare system.
He argues that objections raised at the time on constitutional grounds also reflected ideological opposition to private-sector involvement in providing public services.
Vartiainen is similarly critical of the idea that academic constitutional lawyers could make such judgments entirely independently of their own political values.
In his view, political ideas and ideology inevitably enter constitutional interpretation regardless of whether the final assessment is made by elected politicians, academics or judges.
He nevertheless stops short of advocating a separate constitutional court. Vartiainen argues that such a system could simply shift political conflict to the appointment of judges.
Border security and welfare test old interpretations
Vartiainen says two developments in particular are now putting traditional interpretations of Finland’s Constitution under pressure.
The first is what Finland describes as the instrumentalisation of migration.
Vartiainen argues that Russia could deliberately direct large numbers of asylum seekers towards Finland’s eastern border and potentially mix hostile operatives among them.
Finland’s border security legislation has been one of the major constitutional questions of recent years. Parliament’s Constitutional Law Committee has continued to assess legislation intended to counter instrumentalised migration, including the extension of the temporary border security law.
The second challenge, according to Vartiainen, comes from the constitutional protection of social rights in an ageing society facing increasing pressure on public finances.
Finland’s Constitution guarantees the right to indispensable subsistence and care for those unable to secure the means necessary for a life of dignity.
Juhana Vartiainen argues that interpreting those rights inevitably becomes political when they have to be reconciled with employment incentives and requirements placed on recipients of social benefits.
He points to Nordic welfare systems where relatively generous benefits are often combined with conditions requiring recipients to actively seek work.
Recent changes in Finland that allow social assistance to be reduced in certain circumstances are, in Vartiainen’s view, an example of constitutional interpretation adapting to changing economic and social conditions.
Both the border security law and the reform of social assistance have proved difficult for some constitutional law experts, he writes.
Vartiainen argues, however, that they can also be seen as examples of Finland’s political system adapting constitutional interpretation to new circumstances while continuing to operate through the country’s established procedures.
“Constitutional law must live with the times,” Vartiainen writes.
Juhana Vartiainen is an economist, former Member of Parliament and former mayor of Helsinki. He currently serves as Professor of Practice at Hanken School of Economics.