Välttämättömyys ja valtiosääntö
Avainsanat:
perusoikeudet, yksilönsuoja, perustuslakivaliokunta, säädösvalmistelu, vaikutusten arviointiAbstrakti
Necessity and the constitution
This article examines the concept of necessity in Finnish constitutional doctrine. The study focuses primarily on how the requirement of necessity, one condition for restricting fundamental rights, actually functions as a guarantee of the constitutionality of laws. The examination is timely in that it considers forms of necessity that have recently developed in constitutional law.
The article compares the ways in which necessity appears in constitutional argumentation. The research material consists mainly of government proposals, statements by parliamentary committees, and legal literature.
The enquiry focuses on three themes: social rights, the transfer of personal data, and the restriction of fundamental rights on security grounds. These three examples serve as a context for mapping the types of functions of the requirement of necessity. The examples are used to illustrate the varying ways in which necessity operates in different contexts.
The article concludes with a critique of the requirement of necessity. Based on the research, it appears that the doctrine formed in the Constitutional Law Committee’s statements is neither consistent nor clear. The question arises as to whether the necessity criterion should still be maintained as a condition for restricting fundamental rights. If it has no foreseeable significance, the criterion becomes a kind of fiction that can be used to justify the restriction of fundamental rights without the need to actually assess the necessity of the regulation.
