The openness of the process of prior review concerns the openness of both the working methods and the general procedural rules regarding the review (the public knows how the case proceeds and what peculiarities are involved in each phase). References to the substance of prior constitutional review indicate the openness of the constitutional discussion undertaken in relation to the cases. Increased transparency has been seen as an added value of the legislative process in general.
The Finnish, Swedish and French systems provide for the publication of the results of the preliminary examination. In addition, the final declarations of the PeV regarding the constitutionality of the draft legislation are effectively binding on the parliament. PeV members are not required to have a legal education (by custom, the president of PeV is a lawyer by training).
30 For an explanation of the context and background of Finnish ex ante constitutional review, see Husa 2020. 32 The President of the Republic, the highest courts and the Speaker of the Parliament also have a role in ex ante constitutional review. However, the members of the PeV wanted to change the outcome while largely maintaining the same reasoning.
In this way, the public is fully informed about the opinions of the experts, who. The composition of the Lagrådet is regulated by the Act on the Legal Council (Lag om Lagrådet). The Lagrådet did not balance these arguments against each other, but simply stated the conflicting sides of.
Interestingly, it is the courts, not the government or parliament, that select the members of the Lagrådet. The Conseil exercises ex ante review of the constitutionality of treaties, while other courts are competent to carry out ex post judicial review thereof. The nature of the Council's composition, as described above, makes it highly vulnerable to politicization.
In this light, the openness of the legal argument and process has an obvious value. As for the openness of the procedure, case law constitutes the only public record of the proceedings of the Conseil. Therefore, the appointment procedure regarding the ordinary members of the Conseil is relatively open and requires the approval of the Parliament.121.
As such, the exact roles of the rapporteur, secretary-general and the legal services remain unclear.
Analysis
Significantly, constitutional law scholars rarely express criticism of the Council or its decisions and reasoning.130 This is easily explained by the fact that the main constitutional law scholars are either former members of the Council or former secretaries. An important practical difference relates to the members of the bodies exercising ex ante review. Council members are mostly retired politicians, while PeV members are current politicians representing either the government or the opposition and seeking re-election.
However, in addition to the practice of avoiding dissent within the PeV, the ability to leave dissent is highly dependent on the skills of the members, who typically have no legal background. Openness of ex ante testing is pursued through the openness of the argumentation or the openness of the procedure. 135 The main finding of the study based on the interviews with the members, experts and the secretariat of the PeV was that the de facto power of the constitutionality review mainly lies in the hands of the secretariat of the PeV, see more Dahlberg 2021.
While the French system succeeds from the perspective of openness in legal argumentation, it fails in terms of openness in procedure. Strict rules support the secrecy of the Council's proceedings, and therefore the issue of openness is neglected. Furthermore, the role of the Secretary-General (who has around 70 staff) and the role of the Legal Service remain unclear.
Above all, the public does not have access to documents related to the Conseil's preliminary review. Only since 2008 have legal experts been allowed access to the minutes of Council meetings, albeit with a 25-year delay. Furthermore, the minutes of these meetings are brief and provide little information about the content of the review.
Lagrådet's practices differ in terms of the increased openness of its ex ante procedures, which is possible mainly for institutional reasons: Lagrådet is not a court and its task is only to give non-binding advice. Above all, in contrast to PeV, members of Lagrådet are not politicians who must try to please voters in order to be re-elected. For example, the reluctance to undertake dynamic constitutional interpretations, thus limiting the legislator's discretion, is clearly related to the legal mentality underlying all these systems, which emphasizes respect for democratically elected legislators and the will of the people.137 .
Conclusions
Crucially, a common feature of the Finnish and French systems is that public debate is encouraged only after a preliminary review has been carried out. Simultaneously with the publication of the decision, the Conseil also publishes a press release and a quasi-official commentary on the decision on its website. It is important that ensuring public debate and political participation are described as central aspects of liberal democracy.146 Against this background, the openness of procedures related to preliminary constitutional review is important in the three systems analyzed above.
Significantly, the procedural openness of ex ante constitutional review is not only relevant to achieving accountability with regard to review as such, but also contributes to sustaining liberal democracy, a goal shared by all actors in society should certainly consider it worth pursuing. . In addition to the Conseil's websites, many of the Conseil's decisions are translated into English, German and Spanish. The political atmosphere influences both the openness of the procedure and the legal argumentation: in all three systems studied here, something is left unsaid, which usually concerns politically or morally sensitive issues.
However, it can be asked what consequences full transparency would have with regard to, for example, the legitimacy of the constitutional review. Highly formal and technical, underlying values or conflicting sides of the case are not mentioned. Minutes of the meetings are not public (now access to 25-year-old minutes is allowed for researchers).
Cautious attitude of the members, the secretary and the legal services (e.g. a strict prohibition for members to make the votes public). Unwritten practices relating, for example, to the role of the Secretary-General and the Legal Service. In: Gerards J and Fleuren J (eds), Implementation of the European Convention on Human Rights and ECHR rulings in national jurisprudence: a comparative analysis.
Costa M (2020) Accountability through transparency and the role of the Court of Justice of the European Union. Dahlberg M (2019) Increasing openness in court proceedings – comparative study of public access to legal documents from the European courts. Hourquebie F (2018) Notes on the jurisprudence of the French Constitutional Council in relation to new challenges.
In: Vinx L (ed and trans), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the limits of constitutional law. In: Gerards J and Fleuren J (eds), Implementation of the European Convention on Human Rights and ECtHR judgments in national jurisprudence: a comparative analysis.
