Legal experts say separation of powers not sufficiently understood by Finnish politicians and courts

Outi Koski

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By Petri Sajari
     
      The Parliamentary Ombudsman rendered a courageous decision in February in a case in which he felt that there had been a violation of the principle of the separation of the powers of government into the executive, legislative, and judicial branches.
      Pekka Hallberg, President of the Supreme Administrative Court, was given a reprimand for violating the constitution in the matter of two foreign grandmothers. A group of constitutional scholars feel that the decision was very important, and correct.
      “Hardly ever has thought been given in Finland to what the separation of powers means for relations between the courts and government powers, and between courts and legislative power. People have been content to have the separation written into the constitution, but its implementation in practice has been shaky”, says Kaarlo Tuori, Professor of Law at the Academy of Finland.
      When the Supreme Administrative Court did not change the decision on expelling the grandmothers, Hallberg wrote a letter to the police urging them to delay the expulsion. In doing so Hallberg intruded into the territory of the police, who exercise executive power, by giving instructions on the implementation of a lawful judgement. It is also not part of a judge’s jurisdiction to draw political conclusions about a legislative change, as Hallberg did.
     
If the highest courts - the Supreme Court and the Supreme Administrative Court - find a need to fix legislation, they can propose to the government that an initiative for legislative change should be made to Parliament.
      However, judges are not allowed to fly solo; such a move can be made by a Plenum - a full session of the highest judges.
      “Greater vagueness in the division of powers is a serious problem because it threatens the implementation of justice. Finland would need to adopt a European judicial ideology, which emphasises the independence of judges. Part-time jobs taken by judges giving expert legal statements to Parliament, and the service that Supreme Court judges sometimes do in courts of arbitration, are very problematic”, says Veli-Pekka Viljanen, Professor of Constitutional Law at the University of Turku.
     
Democracy is a word that comes from the Greek words Demos (the people) and kratos (power). Hence democracy means a system in which the people have power over themselves.
      The separation of powers of the modern state under the rule of law was developed by French enlightenment philosopher Charles Louis de Secondat de Montesquieu in the 18th century, as a way of preventing the misuse of power and especially to secure the autonomy of judicial power.
      The doctrine also includes a ban on courts interfering with legislative and executive power. The autonomy of the judiciary was aimed at making sure that citizens have the right to a fair trial.
     
The separation of powers was written into the Finnish constitution in 1919, but its implementation is still not absolutely uniform.
      Examples include the Vuotos reservoir project in the east of Finnish Lapland, the child custody dispute of Outi Koski, the border guard labour dispute before the World Championships in Athletics, and the accusations of espionage against Alpo Rusi.
      These are seen by the experts as random examples of how politicians have inappropriately interfered with the separation of powers.
     
Just as a judge is not allowed to interfere with alternate areas of the use of power, it is likewise not considered suitable for politicians to act like a judge and start giving instructions to courts.
      There are limits to freedom of speech when the use of public power is concerned.
     
There are many dimensions to the separation of powers. On the one hand it is about the autonomy of the judiciary, and on the other, it is about the use of the power that it has been allocated to them.
      Tuomas Ojanen, Professor of Constitutional Law at the University of Helsinki, feels that Finland has traditionally downplayed the importance of the courts. In his view, courts were seen for decades as rubber stamps, only reading the law as it was written.
      The situation changed significantly in 1990, when Finland joined the European Convention of Human Rights.
      In 1995, with Finland’s membership in the EU, European Union law imposed certain obligations on Finland.
      “Judicial autonomy and the right to a fair trial have actually started to take root in Finland only through the European Convention on Human Rights”, Ojanen says.
     
The biggest change is that the European Court of Human Rights and the EU Court speak directly to national courts, past national legislation.
      As a result, Finnish courts need to take decisions of the European Court of Human Rights and the EU court into consideration.
      “Legislators can watch this dialogue only from the sidelines, because the rules are defined on the basis of case law of international treaties. Consequently, the significance of the use of power by the courts has grown. However, this has not been completely understood in Finland”, Ojanen says.
     
The problems that Finland has with the separation of powers have even been noticed outside of Finland itself.
      In 2004 the UN Committee of Human Rights pointed out to Finland that the state should pay more attention at a higher level to the autonomy of the judiciary in order to strengthen overall confidence in the independence of judicial power.
      One of the members of the committee, Roman Wieruszewski, felt that it was strange that a representative of the judiciary was heading a delegation that presented the Finnish government’s periodic report to the human rights committee.
      He found it somewhat strange from the point of view of the separation of powers.
      The report of the delegation was the Finnish government’s view on how the UN Convention of Human Rights has been observed in Finland. The head of the delegation was Pekka Hallberg.
     
There are long traditions in Finland of bypassing the separation of powers. This can even be seen in the wording of the constitution.
      In the 107th paragraph of the constitution, judicial power and executive power - the officialdom - are identified with each other: “If a rule of an act or other regulation that is lower than that of a law is in conflict with the constitution or another law, it must not be applied by a court, or other official.”
      And that’s not all.
     
According to paragraph 77 of the Finnish constitution, the President of the Republic can ask the Supreme Administrative Court for a statement concerning a law that is awaiting signature.
      In practice, this could lead to a situation in which a court switches from being part of judiciary power to that of legislative power.
      The paragraph is also problematic because a court that has issued a statement can later end up weighing the same law in a court.
      Then the danger is that justice may not necessarily be done, because the court has already expressed a view on the matter.
     
In the view of the professors, one of the most questionable characteristics of the Finnish legal system is specifically the juxtaposition of judicial power and officialdom - executive power.
      The setup raises the question of how autonomous the courts really are.
      They feel that at the very least, the courts should be removed from the jurisdiction of the Ministry of Justice.
      In all other Nordic Countries, courts have their own administration.
      “In Anglo-Saxon countries the thinking is that courts are separate from the administration, defending individual rights with respect to the state. Finland has a custom that may come from Sweden, that the state is inherently the friend of the citizens”, Tuori says.
     
The problem does not only apply to the courts. There are many bodies that implement the law that function in connection with government ministries.
      For instance, an anti-discrimination board, which supervises the implementation of equality legislation, is linked with the Ministry of the Interior.
      The reputation of the Ministry of the Interior is not so much one of its positive thinking on fundamental and human rights; instead, it is generally seen as a body that favours coercive power.
     
In Finland the Chancellor of Justice and the Parliamentary Ombudsman are the highest officials monitoring the legality of the actions of officialdom.
      The task of these two officials is to monitor the implementation of fundamental rights and human rights, and to make sure that officials act in accordance with existing law.
     
The legal experts feel that these two officials have taken a lax view on questions involving the separation of powers. The idea of the separation of powers has not been internalised by the Finnish legal and political culture.
      “The monitors have not taken the initiative to take issue with the implementation of the separation of powers. On the other hand, in oversight over fundamental and human rights, they have been active and ahead of the courts”, Tuori says.
     
Tuomas Ojanen agrees.
      “The monitors have reacted to problems in a relatively soft manner, because the separation of powers, especially judicial independence, has not dug its roots into Finnish legal culture as deeply as in many other countries”, he says.
      The reprimand imposed on Supreme Administrative Court President Pekka Hallberg is historic specifically because it is the first time that the head judge of a court has been reprimanded for violating the principle of the separation of powers.
      A new leaf has now turned.
     
     
Helsingin Sanomat / First published in print 29.5.2011


Previously in HS International Edition:
  Supreme Court rules for father in final decision in international custody case (21.12.2004)
  Pekkarinen still wants Vuotos reservoir built – eventually (6.10.2008)
  Parliamentary Ombudsman: Security Police did not break law in Rusi investigation (4.2.2005)
  Police order Eveline Fadayel to buy a one-way ticket to Egypt (25.5.2010)

PETRI SAJARI / Helsingin Sanomat
petri.sajari@hs.fi