Speech by the President of the Constitutional Court of the Republic of Latvia Ineta Ziemele at the Constitution Day of the Republic of Slovenia
Human Dignity in Technology Driven World:
Role of Constitutional Courts
Professor Ph.D. (Cantab.) Ineta Ziemele
President, Constitutional Court of Latvia
President of the Republic of Slovenia, President of the National Assembly, President of the Supreme Court, Judge at the Court of Justice of the EU, Human Rights Ombudsman, Minister of Justice, Your excellences, Ladies and Gentlemen!
Zelo sem vesela, da sem danes tukaj z vami!
It is a great honour for me to be with you today and to celebrate the Constitution Day of the Republic of Slovenia. I would like to thank the President of the Court, Dr Rajko Knez, for the kind invitation and the opportunity to make this address on a solemn occasion at the Slovenian Constitutional Court. Our two courts have developed close and warm relationship. This relationship is part and parcel of the dialogue of European Constitutional Courts. Our Courts share both the same values and are faced with similar challenges.
Are we ready for these challenges? I will elaborate today that, first, our Courts must be prepared for the external challenges, such as new technologies and their impact on the core values and principles. Second, they [the Constitutional Courts] should also be aware of the very real and practical tools at their disposition to address the new challenges.
There’s one extraordinary value placed at the very centre [heart] of our liberal world – dignity of each human being. Are we certain that this dignity is to remain at the centre of our shared values in something I like to call a post-liberal technology driven world? In this respect the privacy is an essential element of human dignity. It is a necessary part of a person’s self-determination which among others drives human evolution. If technologies reduce our privacy or makes us believe that is something obsolete, isn’t that also affecting person’s self-determination? Are we still in control? The world around us may know more about us than we ourselves. Somebody else might own our personal data at such a level that, first, it raises question about the mere possibility of our right to privacy, and ultimately that of human dignity. This is why we have to ask ourselves – what is the genuine role of the Constitutional Courts whenever human dignity is facing new challenges?
When on 23rd December 1991 the Assembly of the Republic of Slovenia adopted the Constitution of the Republic of Slovenia, it signified a new beginning for the Slovenian nation and your Statehood.
Similarly, in Latvia the transition to full independence that we had lost in 1940 was finalised on the 21st August 1991. Latvia reinStated its 1922 Constitution in full force and soon we will celebrate 100 anniversary of our Constitution. Since then our States have been strengthening democratic processes and the rule of law. Transition from socialist or totalitarian societies to democratic ones, has not been easy and the Constitutional Courts have played important and stabilising roles in our respective societies.
Constitution is the backbone of the Statehood. It condenses the will of people for their own State. This will and loyalty to the State has to be maintained, nurtured and implemented on daily basis. The Constitution is a daily tool of our Courts and is part of the process of maintaining the belief of the people in their State.
Human dignity – challenges in a technology driven world
The XXI century has arrived together with the realization that technology, especially digital technology, not only opens up new possibilities for individuals and societies but it also allegedly blurs the borders of, and even challenges, the behaviour and concepts that we have developed as democratic societies in the XX century.[1]
Liberalism that had consolidated as one of the leading ideologies in the democratic world during the XX century is being contested. The new technologies, especially the Internet has facilitated, if not triggered, these changes. If, on the one hand, the Internet was hoped to be the new public place where all opinions could meet, today, on the other hand, the algorithm driven social networks among others are putting us into bubbles ultimately preventing a transparent and all-inclusive discussion.[2]
The Internet has brought to the forefront the existence of plurality of actors in modern societies and the fact that the State is no longer the most influential among these actors. I would like to underline that for as long as human society considers the State as the most appropriate form of its organization the State has to adjust to the changed ways of human communication among other things. It is important to recall that historically the very purpose of having chosen a State as a most appropriate way of human organization was to have such a mechanism that ensured the better realization of each person’s inner self. The basic values of human rights such as human dignity and equal rights were formulated precisely because they captured human nature in a sense that we are all driven to evolve as personalities, to fulfil and to achieve. It can happen where human dignity and equal opportunities are respected.
Two recent cases of the Latvian Constitutional Court show that the principle of human dignity is not some phantasmagoric category, instead its application may be very practical. Indeed, the Latvian Constitution provides that “The State shall protect human honour and dignity. [..]”.[3] Preamble of the Latvian Constitution stipulates that “Latvia as democratic [..] State is based on the rule of law and on respect for human dignity and freedom [..].”[4] In one of the cases human dignity was considered in the context of the right to live in a benevolent environment.[5] Indeed, the right to live in a benevolent environment primarily protects the possibility of a person to live in such an environment where she can function and develop in a way consistent with human dignity. In another case the Court referred to human dignity as one of the universal human values that underlie Latvia as a democratic State under the rule of law.[6] In that case, the court held that human dignity should be protected even after a person’s death.
As we saw this was another affirmation that human dignity and the value of each individual is the essence of human rights. Therefore, in a democratic State governed by the rule of law, both the legislator, in adopting legal norms, and those applying the legal norms must respect human dignity.[7] Latvian Court Stated that democracy and human dignity are two interdependent and mutually reinforcing values.[8]
How should this principle work in the new fast developing environment where the possibilities created by technologies offer for the individuals, governments and businesses to collect and analyse personal data? Analytical systems collect information on our personal choices, habits, interests and intimate preferences.
Although our societies benefit largely from the technological tools, they are simultaneously creating more and more vulnerabilities. Cyberspace, which is a non-hierarchical system with no clear points of control creates a platform, where hackers and analytical systems enjoy their rights to privacy much more than we do, because they are anonymous. The fact is that our societies and social behaviours can be easily manipulated. The French Conseil d’Etat observed that: “The major challenges lie in the fact that digital technologies are inherently ambivalent, in the sense that they provide new spaces and channels for individuals and entities to exercise their freedoms. Contrary to popular belief, and unlikely other types of technology, this ambivalence cannot be reduced to a simple play-off between beneficial and harmful applications. Digital technologies are not obedient systems [..].”[9]
Within a classical liberal view of the XX century the value of privacy was, I argue, an essential element of human dignity. It was part of the person’s self-determination which among others drives human evolution. In a post-liberal technology driven world are we still the masters of our inner self? In the world of algorithms using our data questions about the changed scope of the right to privacy arise and may reasonably suggest that we look at changes in the concept of human dignity.
It is generally admitted that Laws change according to the change in digital technologies. However, we need to strike the right balance between fundamental rights on one hand and the new digital innovations on the other. “Yet these same technologies are raising questions about the validity of certain legal concepts that pre-date their appearance, and about the effectiveness of the instruments available to public authorities.”[10]
I have therefore come to the role of the Constitutional Courts and the particular importance of the principle of the rule of law in times of constant change. I submit that the role of the Constitutional Courts becomes even more important. I will only shed light on a few aspects. The first, strong courts as a means to deter the threats to democratic values and, the second, the transparent courts as important means to redeem democratic values and the importance of the State as a way of human organization.
Role of judiciary (and Constitutional Courts)
In the defence setting, the meaning of deterrence is defined as to dissuade someone to believe that attacking will be costly, because the party has a capability to respond and clear credibility that it will respond if necessary.
The Constitutional Courts too have certain deterrence function. By ensuring rule of law and democratic values in a sense that the Constitutional Courts will have to look at the laws that attempt to capture changing social relations in technology driven world, the courts have a role in deterring the possible threats posed by the use of technologies to infringe upon our rights to privacy and free will. The courts too are actors that shape the national and the international environments by creating transparent systems that define what is acceptable and what is not acceptable in a democratic society.
One of the hybrid warfare elements is to impact the society so that it disbelieves and loses confidence in its key institutions. Constitutional Courts have the task to preserve the trust in the rule of law-based State by critically defending the rights of the citizens. We have the responsibility to strengthen the democratic values in our society, thus elevating its trust to the State and with that contributing to social resilience, which is a deterrence by denial. This is also a remedy against populistic solutions to the threats or just an uncertainty created by the dynamic evolution of our societies. If people do not believe that the legal system works for them, they are less resilient. Resilience is a long-term project to overcome future vulnerabilities. Hence, we have to do the homework and strengthen our societies even more, by defining the boundaries with clear rules and legal responses. I have already noted that law changes along with the development of technologies. However, legislative process may not be up to the speed. Therefore, the judges, have to fill these gaps in interpreting the values provided for in the Constitutions yet again in new circumstances.
Your Excellency President of the Republic of Slovenia, dear colleagues. Judiciary’s role in strengthening democracy in general and the trust to the State that is based on rule of law, is increasing rapidly. In its judgments regarding the publication of monthly income in public sector, as well as in the judgment on regulated land rent, the Latvian Constitutional Court strengthened the principle that the legislative process involving new balance or restricting fundamental rights of an individual, must be such that the society is convinced that the legislator’s solution represents the best possible compromise in a democracy. In other words, laws must be lawful. They must build confidence in the society that the need to limit some fundamental rights has been carefully assessed. Thus, the legislative process must not only comply with the formal requirements as concerns the procedure of adopting the law, it must also promote the confidence of citizens in the State and law.[11]
It has been said that judges do not deliver legal opinions but disclose values. This is very much true for the Constitutional Courts. Admitting that superior courts formulate values, restrain the political power and even pre-empt it, when the argument is made that a certain decision should not be adopted in fear of the decision of the Constitutional Court, all that is part and parcel of the functioning of the rule of law and the checks and balances between the branches of power in the modern age.[12]
Seeing the judges and the judiciary in this broader context, necessarily puts heightened responsibility on the shoulders of the judges and thus requires stringent guarantees of office in place.[13]
The content of values disclosed by the judges have to be accepted by the society as their own, or, to put it in other words, as values not imposed on the society from outside or above. In any given society and culture at a particular period of time there exist permanent central values, general norms and basic beliefs that are not disputed by the majority of the society. The so-called theory of discursive justice postulates that correct solutions derive from a dialogue. If the society fails to comprehend the law, an estrangement from the law takes place.[14]
Therefore, the Latvian Constitutional Court engages in a dialogue with broad segments of the society in at least two directions. First, it focuses its attention on the quality of its judgments and the reasoning included therein, since the recognition of certain values as society’s own may be achieved only by means of comprehensibility. Second, the Constitutional Court engages in public discourse locally and internationally in order to foster the public awareness of constitutional issues. I suggest that a systematic and sustained effort also by the Constitutional Courts in carrying the dialogue with the society on constitutional values and how they are being affected by changing circumstances and social relations contributes to the continued acceptance by and the development of the values of the society.
Conclusions
Ladies and gentlemen! Independent nations are formed by independent minds. Ideas are created and applied by independent people. Therefore, the State has to enable environment for growth of personal creative independence. Personal self-expression triggers creativity, creates new ideas and strengthens the society and a State. State on the other hand has to ensure that the flow of creative ideas is everlasting. Hence, the State has to preserve human dignity in a way that does not trump our individual inner-selves. This is equally the task for the judiciary. In the current world it requires a more engaged activity of all branches of State power.
Slovenia and Latvia are not perceived to be the biggest States. As one of the greatest Latvian poets, Rainis, has said more than hundred years ago: we are a small tribe, but we will be as big is our will”. My question is how big is our will and great is our creativity in the epoch of science and technology to also preserve the fundamental rights and values of our democratic societies.
The State has to keep explaining its own importance and the importance of participatory democracy and the continuous importance of separation of powers for a better self-realization of each individual.[15] It is only fair to say that our nations have a common and strong understanding of the importance of the State for the nation and each of its members. At the times of so many pulls and pushes in all directions, the trust to what we have achieved needs to be reiterated, this is why the rule of law and a transparent and communicative judiciary is one of the best ways forward.
Ladies and gentlemen, thank you very much for your attention!
[1] Ziemele I. Redeeming Democracy in a Post-Liberal Technology Driven World. Speech at the 14th Congress of the Association of the European Public Law SIPE. Accessible: www.satv.tiesa.gov.lv/
[2] Ibid.
[3] Article 95 of the Constitution of the Republic of Latvia.
[4] Preamble of the Constitution of the Republic of Latvia, para 4.
[5] Judgment of 19 December 2017 by the Constitutional Court of the Republic of Latvia in Case No. 2017-02-03, para 19.1.
[6] Judgment of 5 March 2019 by the Constitutional Court of the Republic of Latvia in Case No. 2018-08-03, para. 11.
[7] Judgment of 19 December 2017 by the Constitutional Court of the Republic of Latvia in Case No. 2017-02-03, para 19.1.
[8] Ibid.
[9] Fundamental Rights in the Digital Age: 2014 Annual Report. Conseil d’Etat, 2014, p 33.
[10] Ibid. p 33.
[11] Ziemele I. Address to the Representatives of the Diplomatic Missions in Latvia. Accessible: www.satv.tiesa.gov.lv/
[12] Ziemele I. Speech at the Conference Celebrating 25th Anniversary of the Constitutional Court of Belarus. Accessible: www.satv.tiesa.gov.lv/
[13] Ibid.
[14] Ibid.
[15] Ziemele I. Redeeming Democracy in a Post-Liberal Technology Driven World. Speech at the 14th Congress of the Association of the European Public Law SIPE. Accessible: www.satv.tiesa.gov.lv/