Constitutional law in the Finnish courts and academia


Gained exceptional court victory on Thursday: our Supreme Administrative Court found last fall’s e-voting experiment unlawful and ordered new elections.

Some afterthoughts. The decision came after a vote. One judge out of five would have accepted the lower court’s opinion. A three judge panel of Helsinki Administrative Court said in January unanimously that losing 2% of votes cast was not critical and cited “state’s constitutional rights” as a legal argument to maintain flawed results. On this background, I feel disappointed the Supreme Administrative Court made a narrow legal decision, citing mainly paragraphs from the election statute and without discussing the constitutional rights basis at all. The decision’s value as a legal precedent is thus seriously limited.

Why? We did argue the constitutional basis of the case in length. We cited and quoted German Constitutional Court’s and European Court of Human Rights’ decisions. We cited and quoted Council of Europe’s report, with the basis on constitutional law. No impact. Nothing.

As a practicing lawyer, my own hunch is that constitutional rights remain a forbidden or worthless legal source in the Finnish courts. Any kind of more “practical” written source — be it parliamentary preparatory material, prior case or scholarly commentary — beats all constitutional law argument hands down. Our courts and judges are not prepared to assess constitutional law arguments as they require open pro & contra argumentation. These things were not teached at law school. These things cannot be learned from prior Finnish cases or tradition.

I am also sceptical that our courts would change their existing practice anytime soon. At the very same date we got the winning decision, I also received the latest issue of the leading Finnish law journal Lakimies. No matter our courts do not recognize constitutional rights, there are a bunch of academics writing about them and their application in every other issue in that particular journal alone. Once more there is a 20+ page theoretical piece assessing some high-level options (mainly parliamentary and judicial) to review constitutional rights. That article, like so many others in this debate, has absolutely no connection to the Finnish courts. The article is too theoretical and thick in academic jargon for anyone who tries to actually use constitutional rights arguments before the courts. Also, it gives no guidance for a judge who must face the question: how the hell do I write a legal opinion on a constitutional right argument without losing my credibility?