Honourable Madam Chair,
Esteemed members of Latvia’s constitutional bodies,
Last year Constitutional Court started a new tradition. A very European, modern and progressive tradition that suits the legal culture. Annual opening sittings, a ceremony like the one today with all constitutional bodies. Why constitutional bodies? Because it is your everyday responsibility to enforce Satversme (the Constitution).
You all have received the 2019 Annual Report of the Constitutional Court. It contains a detailed information about last year’s priorities, challenges of legal system and recent opinions of Constitutional Court.
It is vital for the Constitutional court to disseminate its most recent findings and opinions to constitutional bodies and general public. Other constitutional bodies need these findings and opinions because it is their duty to follow these instructions. These findings cannot be confined to judgements, should not remain only on paper. These are practical guidelines that Saeima (Parliament), Cabinet of Ministers and other constitutional institutions have to consider once the ruling is delivered.
As Madam Chair mentioned, last year was very productive for Constitutional Court. It made several milestone judgements that will have profound impact on the development of our society and legal system. Since Madam Chair already highlighted them, I will not mention particular judgements and will rather focus on two important aspects.
One of them is education reform. According to Constitutional Court, education reform should promote social solidarity, reduce ghettoisation in our society and consolidate our society around Latvian language and culture. Reform should ensure that schools instil these values in schoolchildren and at the same time ethnic minorities have possibilities – possibilities protected by constitution – to nurture, enrich and enjoy their language and culture. However, these possibilities are not to be considered an alternative to shared language, the official language. Judgments of the Constitutional Court make it absolutely clear. Moreover, after a thorough consideration Constitutional Court has ruled that the envisaged reform approved by the government and parliament is acceptable.
The other important aspect in judgements of Constitutional Court is good law. According to Constitutional Court, it is an area of improvement and it is the current task of the government and Saeima to address the challenges in this area. There are ways and plans for addressing these challenges. One of such ways is to create National Council, a new constitutional body because right now nobody is responsible for good law. I would like to reiterate, none of the existing bodies, and it is subject to further discussions on how to solve this. Allow me to stress once again that Constitutional Court has made a valuable input in the development of our legal system in 2019. It has at least indicated what improvements are needed. Constitutional Court has also provided opinion on the positive aspects of proposals put forward by the government and parliament. The strengths and opportunities of education reform.
In recent years, Constitutional Court has strengthened its role and exposure at the European and international level, and thus has entered a new phase in its development. First of all, because that is how the Constitutional Court operates. And, secondly, because globalisation leads to closer integration of national legal systems and various legal arrangements are quickly transferred from one country to another, from one legal system to another. That is why constitutional courts, and I might even say all courts, are compelled to cooperate closer.
I believe that our Constitutional Court is probably one of the most active constitutional courts in Europe in this regard. I think, and this is my personal opinion, there is only one other court which is as active as our Constitutional Court. I am talking about the Federal Constitutional Court of Germany. Both of these courts together with the European Court of Justice are the main organisers of the 1st European Union Conference on Constitutional Law in Riga. Before I became the President of Latvia, I was among those CJEU judges who supported this CJEU’s initiative because it would allow us to create an EU network of constitutional courts.
Let me now address several national nuances of the rule of law (tiesiskums) in Latvia. Rule of law has become a widely used notion in Latvia. If you think about it, the ‘rule of law’ does not have the same application in other languages. English ‘justice’, French ‘justice’ and German ‘die Rechtlichkeit’ have slightly different application compared to the way we use ‘rule of law’. It is a rather peculiar, let us say, characteristic of Latvian legal culture. These notions mean similar things, but not quite the same. You have, for example, state governed by the rule of law that you can also find in the Preamble of Satversme, and the difference between the rule of law and a state governed by the rule of law is that, to me, rule of law is the principle that is embedded in public governance, the conduct of public officials and bodies, whereas natural persons must act according to the law. Contrary to, for example, ‘justice’ (in English) or ‘justice’ (in French) which apply exclusively to public bodies. For instance, when I buy a newspaper at Narvesen, transaction must comply with principles of rule of law. ‘State governed by rule of law’ is an overlapping notion. It has direct application in other languages. In German you have ‘der Rechtsstaat’ and in English it is the ‘rule of law’. State governed by the rule of law is a system where rule of law determines how the system works, whereas the concept of the rule of law applies to all members of the society who interact and are a part of this society – society based on the rule of law.
Rule of law is an integral element of Latvia’s constitutional identity. Latvia is a state governed by the rule of law. That means our system of government ensures the rule of law. In other words, all aspects of the state governed by the rule of law are there and constitutional bodies ensure that these aspects are maintained, and Constitutional Court is the final court of appeal for the rule of law. If other constitutional bodies fail to ensure the rule of law in its entirety, the final court of appeal is Constitutional Court. Its role in constitutional system is to ensure that rule of law prevails.
Rule of law and justice are overlapping notions. However, justice is not the same as rule of law. The way I see it, justice is about the substance. About whether something is just or not. Whereas, the rule of law is a procedural principle that provides for enforcement of justice.
Although there is no clear line between them, we can all generally agree that the rule of law is a procedural principle. According to this principle, all our actions – 24/7 – all actions of Latvian inhabitants must comply and live by the law. Country governed by the rule of law is a constitutional system that ensures that all actions comply with the law. If such actions breach law, there are consequences to be faced and ways of dealing with such breaches.
Rule of law, justice and state governed by the rule of law are parts of a single system. And this system forms the unamendable core of Satversme. I would even say that it is the central element of the unamendable core. In other words, no constitutional body is allowed to compromise it, neither Saeima nor Cabinet of Ministers, any court when hearing a case, or any group of citizens. As long as Satversme exists, this unamendable core cannot either be revoked or modified. This is one of the strengths of this system.
Rule of law is intrinsic to our society. Society driven by pursuit of justice and rights as a way of ensuring the rule of law. All three notions have similar bearings but are not identical. Each of them has its own implications and together they form a single integrated system. Integrated system that characterises our society.
State governed by rule of law is not merely a constitutional construct or statement. Rule of law must be implemented in the way a state is run. It is the duty of the state governed by law. However, the task of implementing it is not limited to courts, constitutional bodies and their institutions. The whole society must internalise this framework, which is one of the core values of our constitution. All people must consider whether their actions fall in line with law. They do not need to be, let us say, lawyers to be able to see that.
Anyway, society needs to be aware. Like many other values, this awareness is not inherited. A day-old infant does not have that kind of awareness. So, it is the duty of society to give children such awareness and ensure that when they reach adulthood such awareness is formed and embedded in decision-making.
It is, by the way, one of the duties of education system which shall create this awareness. Such awareness does not come only from textbooks. Such awareness forms gradually in a young mind as a result of observing the surrounding world, including what goes on in the streets, family, school and, of course, there is also the awareness that comes from conscious cognitive effort.
Education reform also shows us that we need to start building public and national awareness of the rule of law by giving it to youth. That way we can ensure that the whole society follows the rule of law.
In 1942, liberal philosopher Popper wrote his influential ‘The Open Society and its Enemies’. He wrote it while in exile in New Zealand because Europe was heavily involved in war at the time. His book is about open society. His view of democracy was minimalist. He believed that better than any other system, democracy allows its citizen to change the government. If people lose trust in government, democracy allows them to change its. However, he also claimed that democracy does not guarantee that we will have good government. In only gives us instruments for replacing a bad one once it fails. If citizens are unhappy with the government, they choose another one. That is what functioning democracy does.
Let me rephrase the title of his book The Open Society and its Enemies to ‘rule of law and its enemies’. Who are these enemies? I think there are four of them. First, there is legal nihilism. It is a kind of system or society can operate on everyday basis. People go to work in the morning and go to bed at night. However, neither government bodies nor people have any regard for law. That is what legal nihilism means. In a society like that decisions are, of course, driven by other considerations. All societies need to make decisions. Whereas the law, at least in Western understanding of the law, is adopted through a democratic procedure, more or less based on views of the society and its majority. Societies where legal nihilism is ripe are driven by this one strong aspect. Historically states ruled by law and the rule of law developed only recently. I would say about 150-200 years ago.
If we take our Livonian era, and a new book on Livonian history was published quite recently, we can see that there was no rule of law. Those who had more men in their army were the ones who collected taxes and ruled the area. That is legal nihilism.
Legal nihilism is no longer something that concerns Latvia, although in the 90-ies legal nihilism was wide-spread, mainly due to what sociologists call anomy – breakdown of norms.
The other enemy of the rule of law is when laws are treated as a mere formality. This is something that still haunts us. Our legal system is still heavily influenced by occupation era practices that were imposed on us. I would say that we are currently making a transition. We have almost completed it, especially if we consider the case-law of the Constitutional Court. Constitutional Court has demonstrated that it is fully capable to interpret the law based on its merits.
However, now and then we can still see laws being treated as a mere formality. We still have instances when everybody knows that what has been done does not strictly fall in line with law, but officials still claim they have complied with all legal requirements. Dear colleagues, that is unacceptable. State governed by rule of law, state that respects the rule of law, should not tolerate such behaviour. That means that we here in our Latvia must do more to eradicate behaviour that treats law as a mere formality.
Another enemy of the rule of law is circumventing of law. This is not about treating laws as a mere formality. This is about circumventing the law to escape liability under the law. It is one of the ways of ‘selective compliance’ or a way to avoid the essential requirements. This is different than treating law as a formality. Our civil law and, as far as I know, civil laws of other countries that I am aware of declare that a transaction is deemed void when parties have circumvented a law. However, courts must know how to apply this legal principle embedded in our Civil Law to prevent any attempts to bypass law.
And there is one more enemy of rule of law as I said. That is the abuse of law. Abuse of law occurs when an individual uses rights for bad purposes. As we know, European Union has developed a rather comprehensive case-law regarding the abuse of law. I am not, however, really aware of how our legal system fights the abuse of law that threatens the rule of law. Formally speaking, if somebody tries to claim their rights, judge may decide that due to malicious intent to abuse the law these rights may also be denied. I believe that abuse of law is still new to our legal system and there is no response yet, but we also have a clear guidance provided in the Section 1 of the Civil. Therefore, all legal relationship must be based on good faith, without malice.
For example, civil laws of other countries have more explicit provisions, and Article 2 of Swiss Civil Code even says, ‘The manifest abuse of a right is not protected by law.’ As clear as that.
These enemies are still strong in Latvia. Some visible, some less visible. Those who enforce the law on daily basis, courts and also other constitutional bodies, should fight these enemies of the rule of law. One of the main challenges is that there are still some public officials who are not aware of these enemies of the rule of law. Constitutional Court should educate them through their case-law, the findings, and, let us say, other platforms for raising problems. That way rule of law will be completely ensured in Latvia. Rule of law the way we understand it here in Latvia in our national context and the way other countries define it using other concepts.
I would like to conclude by sharing my thoughts on one more issue. Implementation of Constitutional Court’s judgements. Constitutional Court is the main constitutional body responsible for the rule of law in our country, and Constitutional Court has its own tools. I am talking about judgements, rulings. Like the Supreme Court and other courts. However, the Constitutional Court has special responsibility here. Every time a judgment is delivered, it must be preceded by careful consideration and meticulous analysis. Often judgements of Constitutional Court also give instructions to other constitutional bodies.
As far as I am aware, President of Latvia has not received any guidance from the Court as of yet. But I do know that other bodies have been given instructions. It is perfectly understandable because political power is mostly held by the parliament and the Cabinet of Ministers. Cabinet of Ministers and Saeima have received a number of instructions on how to ensure the rule of law. There is one weakness though. There are no tools for making sure these instructions are actually followed. Theoretically it is possible to submit another claim to the Constitutional Court but that is not the most efficient solution. It might not lead to actual implementation of instructions either. CJEU has such tool, the so-called repeat proceedings. For example, if Court of Justice of the European Union has delivered a ruling, and there are very few cases of non-compliance with CJEU’s judgements, and Commission refers the case to the CJEU for the second time because the initial judgement has not been complied with. There, indeed, have been only few such cases because most member states prefer to abide by law. However, this is an interesting tool available to the Court of Justice of the European Union. If the second judgement is not complied with, CJEU will ‘start the clock’ and apply penalty for each day of delayed implementation of the second judgement starting from the next day of its announcement. There is a special formula for calculating the penalty a member state must pay. Formula is based on the size of population, gross-domestic product and severity of infringement. That is an efficient way to make sure judgements are followed. Usually member states allude to protracted parliamentary debate or use other excuses to explain why implementation of judgement is delayed. However, once the second ruling comes and each day of non-compliance costs you 100 000 euros, laws get passed with ‘enviable resolve’. I am not saying that this is something Latvia needs. All I am saying is that it is a good example of an instrument that can help ensure compliance with court’s decision.
Maybe, we do not need such a ‘stick’ in our legislation. Nevertheless, one thing is clear – such instruments are a part of modern legal culture. Maybe, we should give a warning first and say, ‘If you do not deal with this matter, we will have to make a law.’ I do not know whether that is the right way. Anyhow, that is a challenge I wanted to underline. Something for you to consider. Maybe, to ensure the rule of law we need such legal tool in our legislation.
Ladies and gentlemen,
Thank you for inviting me to share some of my thoughts about the Constitutional Court and the rule of law in Latvia, for letting me speak about the essence of the rule of law and its relations with other similar notions, for example, state governed by the rule of law and justice. There are other overlapping notions such as legality, legitimacy each of which have slightly different implications. However, all of these concepts fall under the same umbrella of rule of law.
After 30 years since restoration of our independence we have become a state that is fully governed by the rule of law. I am certain that today we are a state governed by the rule of law. Otherwise we would not be an EU member state. Just like any other country, Latvia has its flaws and such flaws can be found in any system of any legal tradition and country. There are no perfect states.
The more instruments we create to address those flaws, less flaws we will have. The efficiency of the rule of law at national level can also be judged on the basis of what balancing mechanisms it has at the court, Constitutional Court and other institutional levels. I have to admit that our current balancing mechanisms are weaker than they should be, and the error rate is also probably above permissible threshold. I am not saying that we are falling behind other EU member states. Definitely not. According to various rankings we are somewhere in the middle and Madam Chair is well aware of our ranking. EU’s annual justice scoreboard compares the justice systems on all 28 member states, and we are somewhere in the middle. Of course, it is not bad. At the same time, our goals are much more ambitious, and we should continue to make our system better.
I have identified four enemies of the rule of law which I have deliberately decided to call enemies to emphasise the nature of threats because there are quite a few public officials who fail to recognise these enemies. There is legal nihilism, which, however, is less relevant nowadays. It is an enemy who has ‘retreated to the woods’. Then we also have the issue of laws being treated as a mere formality. Then there is a big problem of laws being circumvented and, dear colleagues, that is something you should consider very closely. And there is also the abuse of law. It primarily extends to natural persons who try to game the government and judicial system to gain undue personal advantages thus making government and judicial system its ‘accomplice’. These are the main weaknesses our rule of law has today.
Thank you for inviting me to share some of my ideas on the issue. Let me also wish Constitutional Court a very productive year.