Political Questions in Constitutional Review: What is the Dividing Line between Interference with Policy-Making and Routine Constitutional Review?
Rights, Democracy and Local Self-governance: Social Rights in the Constitution of Finland
1. The argument from democracy
Economic, social, and cultural rights, enshrined in a state’s constitution, pose difficult problems as to their legal significance and their compatibility with such basic principles of the constitutional state — the democratic Rechtsstaat — as democracy, the separation of powers, and local self-governance. These rights, often termed second-generation constitutional rights, can easily be interpreted as symptoms of an excessive constitutionalisation of the legal order and of a development toward the so-called judicial state. Such a development involves — in a rather paradoxical way — the risk of both a politicisation of adjudication and a juridification of politics: a politicisation of adjudication in the sense that courts take a position on issues of a political nature that should be left to the domain of political decision-making in the Parliament and the government and a juridification of politics in the sense that legislative activities are increasingly seen as a specification and implementation of decisions already made at the constitutional level. If the municipalities are entrusted with the organisation of, for instance, social and health services — as is the case in the Nordic countries — the problems raised by the second-generation basic rights also touch on the relationship between the judiciary and local self-government. I shall try to analyse these general problems through the example provided by the Finnish Constitution. However, I shall start with a brief discussion at the level of constitutional theory and philosophy.
At this level it can be demonstrated that constitutional economic, social, and cultural rights do not stand in any necessary contradiction with the principles of democracy and popular sovereignty and that the realisation of these principles, in fact, requires such rights. The so-called argument from democracy can be raised in relation to constitutional rights in general. The argument proceeds as follows. Provisions on constitutional rights exclude certain decisions on the common life of society from democratic political processes. They restrict the possibilities of the Parliament and the government to regulate and steer societal development according to the demands of the situation and the political aims of the political majority. In addition, there occurs a transfer of power from the Parliament and the government to the judiciary, which is not subject to democratic control and which lacks democratic legitimacy; it is the judiciary that ultimately monitors the observance of constitutional basic-rights provisions. Thus, constitutional rights may also accelerate development toward a judiciary state.
However, it can be argued that democracy and constitutional rights presuppose each other and make each other possible in the first place. This holds for all the various groups of basic rights — that is, for both the rights to liberty that protect private and public autonomy and the economic, social, and cultural rights safeguarding the factual, material conditions for the exercise of the former rights.
There should be no objection to the claim that democracy is not possible without political constitutional rights guaranteeing political participation, communication, and organisation. Democracy cannot be realised without the granting of such citizenship rights. By contrast, to claim that democracy also requires liberty rights protecting private autonomy, as well as economic, social, and cultural rights, is more controversial.
In relation to liberty rights that safeguard private autonomy, the claim can be justified as follows. Only independent persons whose private autonomy is ensured are able to participate in public discourse and political decision-making processes, essential to a functioning democracy. The exercise of public autonomy presupposes the protection of private autonomy. But legally ensured private or public autonomy does not have any significance for persons who do not possess the factual means of putting their autonomy into effect. The realisation of public autonomy and the respective political rights is dependent on the economic, social, and cultural preconditions that the second-generation constitutional rights are supposed to protect.
2. The legal effects of economic, social , and cultural rights
Thus, at the level of normative ideas underlying the ideal of a democratic Rechtsstaat , it can be demonstrated that democracy and constitutional rights are in harmony with each other. But, of course, there is a long way to go from basic rights and democracy as fundamental, deep-structural normative ideas to a positive constitution and complementary legislation.
One of the crucial problems in regulating constitutional rights — especially economic, social, and cultural rights — is to obtain the appropriate middle ground between overly detailed and overly vague provisions. This problem must, of course, be solved on a case-by-case basis. However, one of the guidelines to be followed should be based on the distinction between preconditions of and restrictions to democracy. One should not, through excessively detailed constitutional provisions, lock in place specified solutions to issues that citizens should deliberate in public discourses and that should be settled in democratic decision-making processes. Basic rights as normative ideas are, and should be, open to interpretations and specifications that take account of the actual state of society. This is an important consideration for all constitutional rights, but it has specific significance in the context of economic, social, and cultural rights; the way in which they are to be realised is immediately dependent on concrete societal circumstances. Too detailed constitutional provisions on these rights constitute a clear case of the juridification of politics — that is, of reducing legislative activity to a concretisation of decisions already taken at the constitutional level.
However, in the debate on constitutional economic, social, and cultural rights, it is often ignored that their formulation as subjective, justiciable rights is only one available alternative. There are other alternatives, too, as the following list of possible legal effects of economic, social, and cultural rights indicates :
(1) establishment of a subjective, justiciable right;
(2) constitutional mandate;
(3) prohibition against retrogressive measures;
(4) interpretative effect; and
(5) programmatic effect.
If the rights are formulated as constitutional mandates, their immediate legal effects concern state organs; they achieve legal effect with respect to individual citizens only through ordinary legislation, fulfilling the mandate. The constitutional mandate is usually complemented, as its reverse, with a prohibition against retrogressive measures, such as legislation weakening the level of the rights’ realisation from that already achieved. In their interpretative role, economic, social, and cultural rights also function in a mediate way, through a ‘rights-affirmative’ interpretation of ordinary legislation. The last alternative listed above — programmatic effect — actually means the absence of any legal effect; the provisions, at the most, only impose political or moral obligations on constitutional organs, mainly the government and the parliament. What, of course, is important is that the constitutional legislature makes clear to itself what the intended legal effects of economic, social, and cultural rights are and also expresses its intentions clearly in the wording of the respective constitutional provisions.
3. The Finnish example
Striking an appropriate balance between constitutional economic, social, and cultural rights, on one hand, and the principles of democracy coupled with the separation of powers is not only an issue facing the constitutional legislature; it is an ever-new challenge facing all of the constitutional organs: the (ordinary) legislator, the government, and the judiciary. I will try to thematise some of the relevant issues through an analysis of the constitutional situation in Finland .
One of the main aims of the 1995 reform of the chapter on constitutional rights in Finland was to create constitutional guarantees for social, economic, and cultural rights. The two main premises in the assessment of the legal effects of the respective constitutional provisions are that, on one hand, these provisions do not as a rule establish subjective, justiciable rights and that, at the same time, they have legal relevance — i.e., they are not of a mere programmatic nature. The main provisions on social rights are included in § 19:
Section 19 — The right to social security
Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care.
Everyone shall be guaranteed by an Act the right to basic subsistence in the event of unemployment, illness, and disability and during old age as well as at the birth of a child or the loss of a provider.
The public authorities shall guarantee for everyone, as provided in more detail by an Act, adequate social, health and medical services and promote the health of the population. Moreover, the public authorities shall support families and others responsible for providing for children so that they have the ability to ensure the wellbeing and personal development of the children.
The public authorities shall promote the right of everyone to housing and the opportunity to arrange their own housing.
The right guaranteed in § 19 (1) constitutes an exception to the rule that the constitutional provisions do not immediately give rise to subjective, justiciable rights. It may have practical significance especially in the field of social services, but the clear emphasis in the effects of the provisions of § 19 lies on constitutional mandates and prohibitions against retrogressive measures. The main addressee of the provisions is the legislator (the Parliament). There is no constitutional court in Finland , and the emphasis in the control of the constitutionality of law lies on ex ante scrutiny of governmental bills. The main monitoring body is the Constitutional Law Committee of the Parliament, consisting of members of the Parliament but assisted by constitutional experts. This method of monitoring the realisation of constitutional rights seems to avoid the pitfalls of a development toward a judicial state; the monitoring process can be characterised as a democratic self-control of the Parliament.
However, the truth is not that simple: the Constitutional Law Committee is a quasi-judicial body within the Parliament, with a quasi-judicial pattern of argumentation. The role of the committee within the legislative process has clearly grown since the basic-rights reform of 1995 and the entry into force of the new constitution in 2000. Thus, we can argue that, in a slightly paradoxical way, the enhanced position of the Constitutional Law Committee attests to a judicialisation of the political process occurring within the main legislative body. In a constitutional system that includes a constitutional court, the potential threat of a step toward a judicial state, with the concomitant danger of the politicisation of adjudication and juridification of politics, is even more evident. It can be warded off only through judicial self-restraint, exercised by the constitutional court.
If the constitutional provision on a social right is of the character of a constitutional mandate, guaranteeing it as a subjective, justiciable right whose realisation is not subjected to budgetary restraints is one way of fulfilling the mandate. The crucial question, of course, is who has the power to decide whether a social benefit is to be guaranteed as a subjective right. Should the exclusive competence rest with the legislator?
In a constitutional system like the Finnish one, the answer is in the affirmative. In some constitutional provisions, the legislator is already indicated as the main addressee of the mandate. For example, § 19 (3) of the Finnish Constitution lays down that “[t]he public authorities shall guarantee for everyone, as provided in more detail by an Act, adequate social, health and medical services and promote the health of the population”. In addition, and even more importantly, the exclusive competence of the legislator is supported by the principles of democracy and the separation of powers; these principles must be duly considered in determination of the division of labour between the various branches of the state in the fulfilment of constitutional mandates.
Thus, the courts — in Finland, the administrative courts — should respect the position of the legislator by, for instance, not treating as subjective rights those social, health, and medical services whose procurement the legislator has left to the care of the municipalities within the limits of their budgetary means and decisions. If the courts do not respect this premise, they intrude on the competence of the legislator and, simultaneously, violate the municipalities’ right to self-governance. The new constitution of 2000 introduced a system of ex post constitutional review: according to § 106, in cases where the application of a provision in an ordinary law would lead to an apparent contradiction with the Constitution, the courts are obliged to give primacy to the latter. The position I have taken entails that the courts should not, on the basis of this provision, substitute their own view of how a constitutional mandate should be fulfilled for that adopted by the legislator.
This does not, however, mean that decision-making in the municipalities on the allocation of budgetary resources to social benefits and the distribution of these resources in individual cases falls entirely outside judicial control. The municipalities have a legal duty to allocate sufficient means to services whose organisation the legislator has entrusted to them. In addition, in individual acts of decision-making, general principles of both administrative and social law should be respected, and even here administrative courts have a controlling role. These principles, in turn, may find their justification and institutional support in provisions on constitutional rights. When relying on principles anchored in these provisions, the courts also fulfil their obligation of a ‘basic-rights-affirmative’ interpretation, an obligation stressed in the travaux preparatoires both of the reform of the chapter on constitutional rights in 1995 and of the new constitution of 2000. And, it may be added, ‘basic-rights-affirmative’ interpretation is the main means by which the courts should contribute to the realisation of the constitutional mandates concerning economic, social, and cultural rights. From the perspective of the courts, the interpretative effect is the most important aspect of the functioning of the provisions on economic, social, and cultural rights.
In conclusion, I think it is possible to stake out an appropriate division of labour among the legislator, the municipalities, and the judiciary in fulfilling constitutional mandates concerning economic, social, and cultural rights while paying due attention to the fundamental principles of democracy, the separation of powers, and local self-governance. It is not always easy to maintain this division of labour, and it cannot, of course, be excluded that administrative courts interfere with issues that should be left to the legislator or to local self-government. From the perspective of an eventual development toward a judicial state, we move in risky territory.