The influence of politics on constitutional interpretations – the Finnish ex ante constitutional review as an example

Constitutional interpretations have become increasingly subject to heated political debates and struggles, which often surface as conflicts between law and politics. Under most legal systems constitutional review may take place either before (ex ante) or after (ex post) the law in question enters into force. The emphasis is usually on the latter option, albeit that in some countries such assessment mainly takes place ex ante, before the law is passed by the national parliament. This presentation examines this form of ex ante constitutional review and assesses the role of the political tensions and struggles typical of it. The focus is how political struggles affect constitutional interpretations. I draw on the Finnish experience, in which context the Constitutional Law Committee of the Finnish Parliament (hereinafter, the ‘CLC’) is the authoritative interpreter of the Constitution and reviews constitutionality of laws before they enter into force. The presentation examines the de facto practices of this ex ante constitutional review empirically by means of a qualitative case study involving 49 semi-structured interviews among key actors involved in the work of the CLC. In the Finnish system, courts play a very limited role in constitutional review and there is no special procedure for dealing with constitutional matters. This means that interpretation of the Constitution may take place in individual cases of any kind, be they administrative, civil or penal in nature. Therefore, Finnish courts regularly interpret constitutional and human rights in their cases but not constitutional provisions relating to, for example, institutions, democracy and the separation of powers. In addition, while in principle the Finnish courts have the right to question the CLC’s interpretations, they very seldom do so and instead usually follow the CLC’s interpretations. Consequently, political tensions between judicial and political decision-making surface somewhat differently in the Finnish system than is the case in judicial systems where the courts are the main interpreters of constitutional provisions. In the Finnish system the CLC is the main forum for tensions between judicial and political decision-making. The CLC does not comprise constitutional judges but Members of Parliament (MP), who assess the constitutionality of proposed laws. In their assessment, they are aided and often rely on legal experts that specialize in constitutional law and are invited to provide input in respect of each law draft. I have interviewed (1) MPs who have worked in the CLC, (2) secretaries of the CLC, and (3) experts on constitutional law that form a pool of experts that CLC consults as external advisors. Drawing on the interviews, I explore the practices of constitutional review and focus in particular on the tensions and struggles that surface in the CLC when it conducts constitutional review of highly politicized matters. In addition, I will analyze how political struggles are materialized in the constitutional interpretations conducted by the CLC.