The centenary of the Constitution of Latvia is awaited with weakened parliamentary power

Although the Constitution will be 100 years old on February 15, the longest period it has been in force has only been since the de facto restoration of independence in 1991. An interview with Professor Ringolds Balodis, Corresponding Member of the Latvian Academy of Sciences, on the debates around and about the Constitution, how it is or is not followed; on the pendulums of power in the country.

As a legal expert, what can you tell us about the Constitution that the ordinary reader might miss when reading it?

First of all, the Latvian word for it - "satversme" - is synonymous with "constitution". The word "satversme" was a new word coined by Atis Kronvalds. Since the end of the 18th century, the Western world has accepted the thesis that the source of a state's power is the body of its citizens, or the people, and that the main document in a state is the constitution. The constitution should ensure political and constitutional stability in the country and protect us from the arbitrariness of the state. In turn, the actors in the political process must respect the constitutional order of the country, as set out in the constitution, in their struggle for power. One of the constitution's overarching tasks is to ensure the peaceful transition of power through elections. Like any constitution, the Latvian Constitution contains an ideology, which is both explicit in the text and inferable from the text. In the process of constitutionalism, it has gradually become the case that almost all countries have written constitutions. Although international treaties, various intergovernmental organizations, unions and other supranational formations such as the International Monetary Fund, the OECD and the UN have nowadays weakened the constitution as the supreme law of states and as an expression of the sovereignty of the people, the constitution is still central to the hierarchy of law in any country. The constitution has now become an indispensable attribute in the gentleman's kit of any state and is as much a symbolic attribute of the state as the flag, the coat of arms and the national anthem. A constitution can be seen as a kind of agreement or contract between the government and the people. This contractual aspect is particularly evident in 19th century constitutions such as those of Germany or Japan, where monarchs gave them to the people as a way of self-limiting their power, but 100 years ago, when the Latvian Constitution was being drafted, a constitution could more accurately be described as a promise by a public authority that it would be just, serve the people and faithfully promote the good of the people for the benefit of the people. The primary role of a constitution is to serve as a guarantor of fundamental human rights and as an institution limiting the power of the state.

That was in the past and in theories, but what is happening today?

Nowadays, things have become much more complicated. Representatives elected by the people have to try to balance the state, international and national interests of their electorate. As a result, under supranational pressure, it is difficult for Saeima politicians to explain, for example, why the Jewish people have to be compensated in cash for the devastation of the Second World War while others do not, or why the true beneficiaries have to be identified, or why it is our Latvian domestic banks that have to suffer in the financial overhaul. All this is heated up even more by Latvia's membership of the European Union, which is now, after Britain's departure, clearly beginning to move in the direction of a federation. Concerns about this loss of Latvian sovereignty were also raised in the recent foreign policy debate in the Saeima.

Are the features of the Constitution in danger of changing?

Since its adoption on February 15, 1922, the Latvian Constitution has grown by one third. The lion's share of the increase is accounted for by the 2008 and 2014 amendments to the Constitution. Admittedly, most of the amendments to the Constitution are about different constitutional deadlines and procedures. None of these 15 amendments has changed anything fundamental in the original architecture of the Constitution. It is noteworthy that not a single article in the Constitutional amendments has come from the people and has not been approved in a referendum. They are all amendments initiated by the Saeima. This shows that, although the people have a right of reviewing the Constitution, in reality, this is only a right on paper, as it is not enforceable due to the complex procedures and high quorums.

Why is that?

Because,

both during the first period of our independence and today, the political elite fears the expression of the will of the people and considers the people politically immature.

Incidentally, this deep distrust of the people themselves was also the reason why revealing the KGB archives dragged on for thirty years. Fear of the people prevents a president elected by the people. Members of Saeima are elected by lists, by proportional representation, and we elect our officials openly. The Saeima has no rival in the exercise of power who can instruct it on anything. So far, the parliaments have not been able to carry out any serious reforms, and this has only a conditional connection with the Constitution. Even without changing the Constitution, it is possible to make gigantic changes in public administration, if only politicians had the political will to do so.

Does this mean that the Constitution has only a declarative meaning and function?

The Constitution has also become, during the second period of independence, a kind of conversation portal through which the authorities talk to their people. This is evidenced by a whole plethora of symbolic messages from the political establishment to the people. For example, the term "welfare" has been included in the Constitution three times, while the "Latvian language" has graced the Constitution as many as eight times. Both words were absent from the pre-war version of the Constitution. The Constitution reflects the process that is also observed in the law. The actual action of the authorities is replaced by a loud normative bustle. There is an imitation of action. It is understandable that it is easier to talk about welfare and to include that word in the Constitution than to actually do something.

Is it not the case that, in general, our Constitution is extremely laconic and concise, and on a great many issues it says absolutely nothing?

That is a good thing rather than a bad thing, if you have a sensible legislator. The Constitution may appear to be a simple and easy-to-understand document only at first sight. A good example is Section 1 of the Latvian Constitution, which says that Latvia is a democratic state. From this, legal doctrine derives a whole heap of principles which, in your words, are not at all obvious to the ordinary reader. These invisible but present principles are the separation of powers, the supremacy of the Constitution, the socially responsible state, the rule of law, the primacy of the law, legal certainty, legal confidence, good governance, and a number of procedural guarantees. One of the most significant amendments to the Constitution is the establishment of the Constitutional Court as a constitutional institution of review. The establishment of the Court of Law was a fundamental and principled step. The Constitutional Court has done much good in stabilizing the constitutional system and protecting the rights of ordinary people. The question now, however, is how far judges appointed by the Saeima can and should be allowed to play in the Saeima's legislative field. I also believe that the court has put itself in the shoes of the legislator, and this has consequently put the court in tension with Saeima. The issue of the enforcement of court decisions has become topical. A number of Constitutional Court judgments and assessments are before Saeima. These concern the legalization of same-sex unions and the Istanbul Convention. The Saeima is in a bind here, as a number of parties are positioning themselves as defenders of conservative values and are going to the elections under this banner. This means that if these parties, before the elections, arrange the laws according to the Constitutional Court, the voters will not understand. On the other hand, if the Saeima does not comply with the Constitutional Court's instructions, a kind of constitutional impasse is created. This issue cannot be resolved, as usual, by MPs suddenly not taking part in an unpleasant vote, as happened, for example, on several occasions in the votes on the compensation of Jewish people.

How is the interaction between the Saeima and the Constitution turning out?

In this context, we should talk about the increasing constitutional relativism, which is in close contact with judicial activism. To explain what is happening in plain language, the Constitution is increasingly becoming a document that formally maintains the pedestal of the supreme law of the state, but in reality, it is rapidly losing its role. Increasingly, in the committees governed by the majority of the Saeima, the objection that this and that contradicts the Constitution is met with a blunt reply - if you don't like something, you can go to the Constitutional Court. The attitude to the Constitution of the politicians in the Saeima is becoming blatantly refined, and constitutional norms such as those on parliamentary requests, parliamentary immunity and the mandate of an MP, like a number of aged war articles of the Constitution, seem to have fallen asleep.

Nature abhors a vacuum, doesn't it?

As parliamentarism becomes more flimsy and primitive, the court is beginning to claim the role of the legislator. It sees that many decisions of the Saeima are not reasoned, are not justified, it calls in experts when it wants, if at all, and it acts according to considerations that are invisible to the public, only understood behind the scenes. The Saeima has a life of its own, which distances it from the people. The Saeima is extremely intolerant of any criticism. It only hears what it wants to hear. This is very bad. The Saeima is also incapable of organizing its own internal procedures. It prefers to deal with pseudo-problems where it can position itself well politically. Neither the 12th nor the 13th Saeima has the strength to sort out the Saeima's Rules of Procedure. Seeing this, the Constitutional Court is beginning to step more and more confidently into the political arena. Its most significant amendment to the Rules of Procedure in the last decade is the Constitutional Court's judgment of December 23, 2019, in Case No 2019-08-01, which returned to their benches MPs against whom criminal proceedings had been initiated. This was a necessary and correct reversal, as previously it was a way of kicking any politician out of political life for many years. It is sad that a number of MPs - Aldis Adamovičs, Atis Zakatistovs and the chairs of the responsible committees, Mārtiņš Bondars, Juris Jurašs, Artuss Kaimiņš - who are responsible for the budget, legal issues and human rights in the Saeima are either convicted of financial embezzlement or accused of white-collar crimes and falsification of accounting documents. Parliament's reputation is currently under criticism, not least because Jānis Ādamsons has been accused of spying for Russia and has been banned from attending Saeima sittings, while Aldis Gobzems, with his antics, is doing everything in his power to have himself indicted and arrested. I understand that politicians are not a crocheting group of Christian virgins, but I will say that the actions of the Saeima itself are a great source of criticism of parliamentarianism and the greatest source of popular distrust. A spectacle, not the representative organ of the people. It's no wonder that in the latest Supreme Court bulletin, a senior judge, informing colleagues of a scientific conference, writes: "(..) It was concluded [at the conference] that all countries use virtually the same methods of interpretation, and that the grammatical method is always used first, the other methods being used when the text is not sufficiently clear. As for the teleological method, the German judge who chaired the first discussion joked that sometimes it felt that judges knew better than the legislator what the legislator meant to say. He also added that a person who loves sausages cannot give a conclusion on the necessity of producing these sausages. The Greek judge was of the opinion that the judge sometimes has to create a legal rule because he has to say what the legislator has omitted (..)."

In this light, somewhat sophisticated form of presentation, a long-established professional is in effect saying that Saeima is not to be taken seriously and that the courts must take matters into their own hands. What does this mean?

It means that the court is beginning to realize its own power and the powerlessness of the Saeima and, I assume, is beginning to deliberately overstep the boundaries within which the legislature has traditionally operated.

Are you saying that the judiciary is beginning to take over power in the country?

We lawyers here could go into hours of discussion about boundaries, methods of interpretation and the rank of international treaties above national ones, and so on, but here, first of all, it must be understood that the court does not run the country. It has a duty to ensure justice in so far as it is possible within the limits of the Constitution and the law. Constitutional law is most closely linked to politics, and the Constitutional Court's assessment is often made at the interface between politics and law. But it must not replace the legislature, however much judges may wish to do so. Otherwise, the principle of the separation of powers, which is one of the cornerstones of the democratic principle, has been replaced by the principle of the communist regime - democratic centralism. Democratic centralism in the Soviet Union replaced the bourgeois principle of the separation of powers with the idea that the Communist Party knows better. In Latvia, the party is replaced by the courts, or a conglomerate of the highest judges of the highest courts. The French philosopher Charles-Louis de Montesquieu once pointed out in his book "The Spirit of the Laws", whose theses are the basis of the concept of the separation of powers, that none of the three powers (legislative, executive and judiciary) can be subordinate to one another, because then democracy will be threatened and authoritarianism will set in. The judiciary must not be the ruler of the legislature either!

But our international watchdogs won't allow that, right?

Of course, there is also the supranational factor. The country is bound by so many international commitments that the legislator has no choice but to honor them, regardless of the controversial views of the citizenry on one issue or another, and to bring the dry text of the Constitution into line with international instruments. The courts, on the other hand, when deciding on various issues, essentially look primarily to the case-law of the European Court of Human Rights, the Court of Justice of the European Union. There are several aspects here that are closely intertwined. Firstly, the supranational aspect, because this process is taking place in Western cultural law. Judicial activism is not a phenomenon that emerged and developed here. This phenomenon is now becoming visible here, whereas it was visible in the other Member States of the European Union much earlier. Poland is trying to curb it somewhat, after receiving devastating criticism from the European institutions and a fine of millions of euros. In Poland's case, this may end in leaving the EU or in making concessions to both judicial activism and the EU requests. There is a certain trend towards the courts realizing their power and autonomy. They are testing how far they can go. The Constitutional Court itself has repeatedly stated in its judgments in the past that, although the boundary between legal and political considerations is not always clear-cut, the Constitutional Court should refrain from examining political issues, as they fall primarily within the competence of the legislator. President Egils Levits, when he was still a lawyer, has also said that the Constitutional Court should assess only questions of law, bearing in mind the principle - iudex non calculat, i.e. the judge does not calculate. I listened with interest to the non-lawyer Agnese Irbe, the head of the conservative website Telos, who said that the Constitutional Court's now-famous judgment of November 12, 2020, in Case No 2019-33-01 was based too much on emotional arguments. There is a separate opinion by judge Aldis Laviņš in this case that the judgment violates the Court's own declared dissociation from politics, that by overemphasizing human dignity, we can drive ourselves into a deep mess. On the other hand, the power is vested in the court by the legislature itself. How else can we look at the creation of the Economic Court, sanctioned by the Minister for Justice, to which the power to expropriate large, dubious sums of money for the benefit of the state is basically being transferred? The fact that the Judicial Council has been given the task of evaluating the nominations of the Constitutional Court judges is also a sign of the authorities' avoidance of personal responsibility and the cultivation of judicial muscle. Moreover, this is happening at a time when, in many cases, the opposite is happening. For example, the Constitutional Court's counterpart, the US Supreme Court, has been fought over for over a hundred years between the parties. Republicans (conservatives) and Democrats (liberals) are fighting each other for influence on the Supreme Court. Currently, the Supreme Court has a 6 to 3 majority of conservative justices, and the Democrats, fearful of losing the presidential election to the Republicans, are arranging the early retirement of one of the liberal justices of the Supreme Court, Stephen Breyer, and are already preparing to replace her with a new justice from the liberal camp, whom Biden will appoint this summer.

***

Read the rest of the interview in the next issues of Neatkarīgā.