I would like to thank the Constitutional Court for hosting already the second think tank workshop. It is a good platform for deeper dialogue between constitutional bodies, and today we have three such bodies discussing and engaging in dialogue about the interpretation of Constitutional Court judgements. Let me narrow down the topic of today’s discussion to implementation of the principle of good law in the legislative process from the position of the Constitutional Court.
Several judgements of Constitutional Court have indicated that better law-making is needed. Court has also offered clearer interpretation of principle of good law. Constitutional Court has asserted and not just concluded that Latvian legal system is based on the universal principle of good law-making. There are universal legal principles and the Court has also asserted a specific principle, the principle of good law. I should underline that the comparative analysis of European Union member state constitutions shows that we are in a certain sense unique. We have constitutionalised the principle of better regulation. It is a principle that falls within other principles, and Constitutional Court has made it into a separate principle. Court has set clear scope and content of the principle.
European Union (EU), of course, prioritised better law-making a long time ago. However, the EU does not define universal national legal principles. There is a special framework called ‘better legislation’ in English. Better legislation is a special programme and plan of activities that member states should implement and thus ensure that their laws, and also the laws of the EU, become better. This programme already offers a tested and well analysed interpretation of this principle. And our Constitutional Court is leading the way in the EU in terms of constitutionalising this principle in Latvian legal system.
Constitutional court rulings, primarily two particular judgements, 2017-17-0-1 and 2018-11-0-1, state that laws have two main objectives. First of all, to provide and ensure justice. And, secondly, laws must promote trust in the state of Latvia and its national legal system. The first objective may seem rather straightforward. Justice is the purpose of the law. How does it work? How do laws ensure justice? Just imagine if there was no state. There would be no rights and no laws. All human relations and interactions would, let us say, ‘grow organically’. I want to underline that legislature constantly interferes with natural course of events. Something develops naturally, but legislature decides that such development is unwelcome. Rules are adopted and natural course of events is adjusted. For example, this phenomenon has been widely researched by Friedrich August von Hayek who is not a lawyer but a well-known economist. Contrary to, let us say, Keynes, his theory was that the state should not interfere with economy and let everything develop naturally. He believed that any rules are counternatural. This approach may be applied in any other area beyond economics, for example, to family relations or welfare. We, of course, have people who are better off and people who are worse off in our welfare system. And legislature decides that it is not fair and that becomes a benchmark. That is why we adopt laws that require those who are better off help those who are less privileged. That is how laws regulate the natural course of events, and the main purpose of regulating is to ensure justice.
We can, of course, go even deeper. What is justice? Justice is an abstract notion that manifests itself in specific way. There is no abstract definition of justice. However, justice becomes very real when applied to specific circumstances. That is what the law strives for. Of course, when we say that the law must provide fair rules, we mean that its provisions and the scope, the scope of application is always wider than specific area covered by the law. It is how we, let us say, the lawyers approach laws in a simplified way. Law must consider all possible implications. Law contains only some regulation, let us say, operational rules. And I believe that these operational rules are the ‘backbone’ of the law. However, laws will always have implications and legislature must be able to foresee such likely scenarios. That becomes the ‘blueprint’ of the law and reflects the understanding of the legislature of what justice should look like. So, this abstract objective is interpreted by Constitutional Court in given circumstances to assess the law. Law should always strive for justice. We can, of course, argue what justice means in one case or another, but we have also formal procedures for defining and establishing justice. And, last but not least, we also have Satversme (Constitution) that also defines justice.
The other objective is to promote trust in the legal system of Latvia because trust in Latvia and its legal system is intangible. Why? Because we have formalised trust in our system. We can, of course, again argue about what we mean by trust, but my goal is to underline that Constitutional Court has made the good law-making a universal principle and explicitly told the parliament where its powers end. The scope of power is centred on these two principles: justice and trust. How is that ensured? It is ensured by special law-making procedure. We expect or, let us say, presume that the principle that is good for most cases, and not always all cases, should be used. In other words, this principle or assumption means we believe that if all procedures have been followed in the adoption of a law, then the law will be good. This is more or less one of the fundamental principles of Anglo-American legal system. Legal science of Continental Europe is more sceptical on this. Law-making may be smooth and adequate but still fail to ensure justice. I hope that all of you agree with me on that. On the other hand, it in no way means that this kind of fair or rather adequate procedure with all stakeholders and clear structure is flawed. It is the first scrutiny of a legislative initiative, but it is hardly the only one. There should also be another level of scrutiny to ensure that law has been appropriately and adequately discussed, as well as matching the above principle. And that is what, I believe, Constitutional Court has indicated in its rulings.
How can good law-making be achieved? Saeima (Parliament), of course, is supported by different departments, and Cabinet of Ministers also has support framework. They help make sure that each proposed law ensures justice. It is, of course, important for Saeima to follow the recommendations of its support system. This support system that produces bills includes aides of Saeima MPs, advisers of Saeima committees, Legal Bureau, Saeima Analytical Service and, of course, government departments and agencies. However, those who will enforce these laws after their adoption need to understand the scope of application envisaged by the lawmaker. If scope of application envisaged by the Saeima is broader than the law suggests, and it is always that way, those who prepare opinions and legislative proposals must factor that into various drafts. Although anyone, even 7th-year pupil, can read the law, it is difficult to understand what law intends without studying in university for at least 5 years. Understanding the law, and also understanding what justice means in each particular case and understanding the legislature’s vision of justice is not that easy. Those responsible for application of laws have special tools for that. One of such tools is the annotation of the law, the introductory annotation. We have also discussed the necessity of introducing an end summary or preamble before, especially because EU has already developed the principle of the better legislation a lot further. EU, for example, introduced preamble of a law a long time ago. To be able to enforce the operational requirements, court analyses and interprets this preamble very diligently. Be it preamble or end summary, this, of course, would be a useful tool for legislature through which it expresses its intentions. And sometimes, you see, there can be misunderstandings when we think that the intent of the law is expressly contained therein. Dear colleagues, that is not so, and it is not even theoretically possible. Full intent cannot be expressed through law. Laws will always have to be interpreted and other, let us say, legal acts can give us these interpretations. In this case, annotation or preamble can give this interpretation. And annotations and preambles, of course, are also subject to interpretation.
I already mentioned the resources legislature has to ensure that principles of good law-making are met. However, as we can see, there is one ‘issue’. I am talking about independence. Let me reiterate that independence of these bodies is very important. These bodies need to be able to give their formal assessment, to say what is legally acceptable, which is the responsibility of legal experts, and they must also be able to communicate with Cabinet of Ministers on an equal footing, to be able to say directly to Cabinet of Ministers that in this particular case, in this context, its interpretation of justice could probably be mistaken. Of course, it is the duty and task of the Saeima to decide, but we should also revisit the role of government bodies. Of course, there are those who are against it. Their usual claim is that we are a small country and we need lean and compact government. I partly agree and partly disagree with that. I agree because in case of some government bodies population size may matter. But there are also bodies that we need irrespective of the size of population. For example, Lichtenstein. A small country that has a constitutional court for 23 000 people. Why? Because it is a small country. We are a small country too, but we do not need any constitutional courts. If we want to become a modern and developed country, we need a robust government. Of course, for a smaller country it is a bit of a challenge because funding of all these government bodies will take a bigger share of gross domestic product and may, of course, affect the growth rate.
Thank you!
