Perustuslakivaliokunnan valiokuntaneuvosten rooli perustuslainmukaisuuden valvontajärjestelmässä – valiokunnan työrukkanen vai merkittävä vallankäyttäjä?
Avainsanat:
perustuslakivaliokunta, valiokuntaneuvokset, virkamiesvalta, perustuslainmukaisuuden valvonta, haastattelututkimusAbstrakti
Lakimies-aikakauskirjan parhaan kirjoituksen palkinto v. 2021
Role of the Committee Counsel of the Constitutional Law Committee in the system of ex ante review of constitutionality – simply a secretary or a real user of power?
In contrast to most European constitutional systems, constitutional review of legislation in Finland is exercised primarily by a parliamentary Committee before the legislation is adopted (ex ante review). The ex post review exercised by Finnish courts is clearly secondary; under section 74 of the Constitution of Finland, the primary and authoritative organ for ensuring the constitutionality of legislation is the Constitutional Law Committee (CLC) of the Parliament of Finland. The Finnish system of constitutional review is thus rather unique, with its legitimacy based mainly on the principle of democracy.
The members of the CLC, who are politicians, are not required to have a legal education (but by custom the chair of the CLC is a lawyer). The Committee Counsel, a civil servant, advises the members of the CLC on the law, with further advice being given by constitutional law experts who are regularly invited to give evidence before the CLC. The Committee Counsel has high-level expertise on constitutional law; he or she helps and advises the members of the CLC and drafts its reports and statements. Furthermore, the Committee Counsel compiles the list of the constitutional law experts who should be heard in respect of each Bill under consideration.
Legal research has to date mainly focused on the role of the experts and the members of the CLC in the Finnish system of constitutional review. The role of the Committee Counsel has been left aside in the legal research. The article focuses on the role of the Committee Counsel in the ex ante review of constitutionality, on the basis of interviews carried out with members of the CLC, legal experts and current and previous Committee Counsels (N=49). The interviews have been analysed against a theoretical framework arising from earlier research focusing on the legitimacy of the review of constitutionality and the power wielded by civil servants.
The main finding of the analysis is that the Committee Counsel influences significantly every part of the process of review of constitutionality. However, the powers of the Counsel are mainly invisible. Therefore, the author suggests that the role of the Committee Counsel should be made visible, for example by amending the Rules of Procedure of the Parliament and admitting the essential role of the Committee Counsel in maintaining the legal focus of the CLC when it deliberates issues of constitutionality.
