Is there those parts of the Constitution which would need such special protection that it would not be possible to amend them? In other words, should there be “locks” in the constitution that should not be opened by a clear majority in Parliament?
It may sound like a strange question, but in many countries the issue has been debated for a long time. For a long time, there was an academic controversy over the “paradoxes of legality” in question, but more recently, there has been a shift to a more practical level.
Underlying, of course, is the old knowledge that forces that have been elected in free elections can also seek to erode democracy by amending the constitution. Such efforts have also been seen recently in the EU, where Hungary and Poland have received the most attention.
Here This issue also arose in Finland when Tuomas Ojanen, Professor of Constitutional Law at the University of Helsinki, presented it at a seminar at the Ministry of Justice at the Estate House (HS 11.11.).
Ojanen’s question was actually a continuation of Kari Kuusiniemi, President of the Supreme Administrative Court, last spring (HS 6.4.) on guaranteeing the independence of the judiciary in all circumstances.
Of the supreme courts, for example, the constitution only states that “the Supreme Court and the Supreme Administrative Court have a president and the necessary number of other members”. These courts are said to have “five members of the judiciary, unless the law provides otherwise.”
The Härski government could therefore change the composition of the supreme courts by increasing their size or setting a new mandatory retirement age for judges. This could be done by changing the ordinary law, meaning that the majority government would easily get through the changes.
The question posed by Ojanen takes the debate to the next level. Kuusiniemi has called for better protection for the courts in the constitution. Ojanen wonders whether some articles of the constitution should be given better protection.
That is not an easy question.
In the democratic In systems, one important function of the Constitution is to set boundaries for those in power. In Finland, too, Parliament cannot enact laws that violate the current constitution. Otherwise, Parliament has great power in legislation, including the Constitution.
The locks of the Constitution would thus bind the hands of future generations and parliaments. Is that right in democracy, especially when it has already been made quite difficult to change the constitution? What does the term “unconstitutional amendment” mean, which the locks are meant to protect against. How could a change made according to the rules set by the Constitution be unconstitutional?
Proponents of the idea respond that tying the hands of future parliaments is the whole thing. The intention is not to lock in the whole constitution, but the most essential core of it all. In addition, there are locks in the constitutions of many EU member states.
Itself nations that consider adults need to consider these issues, at least from time to time.
There has still been quite a bit of such a constitutional debate in Finland and the other Nordic countries. Societies are still relatively cohesive internally, and there has been a strong consensus on constitutional issues, so it has not even occurred to most. Now at least the subject is known.
In the end, democracy is protected by people’s desire to live in democracy.
It is good to organize media education against disinformation, the independence of the supreme courts needs to be strengthened, and the blocking of some parts of the constitution is worth discussing. It is even more important to ensure that people feel part of society and that democracy retains the capacity to produce effective policies.
That is difficult.
The author is the editorial editor of HS.
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