Contribution by President of the Constitutional Court Aldis Laviņš “Political and legal within the jurisdiction of the constitutional courts” at 19th Congress of the Conference of European Constitutional Courts (CECC)
Contribution by President of the Constitutional Court Aldis Laviņš “Political and legal within the jurisdiction of the constitutional courts” at 19th Congress of the Conference of European Constitutional Courts (CECC)[1]
Chisinau, 22 May 2024
Distinguished Colleagues!
There is no doubt that we, judges of constitutional courts, have extensive knowledge how the political considerations play the role in constitutional adjudication, especially in so-called “sensitive” cases. We are aware of various researches about Judicialization of Politics or Politicization of the Courts, which deal with this important question.
Until February 2022, we have discussed issues about distinguishing the politics and law in the context of normality, I mean in peaceful time. However, unfortunately harsh reality is that this is the 818th day of the war in Europe. Therefore, in the time allocated to me, I will highlight some of judicial aspects how judges can take into account the geopolitical context, which is especially important in the Baltic States as neighbours of aggressive autocratic regime. It is equally important here – in Moldova. In my opinion, these aspects are currently more relevant for the European constitutional courts than a scientific discussion about, for example, the methodology we are using when distinguishing between political and legal.
First, I would like to mention the case regarding the prohibition for a soldier in professional military service to be a member of a political party. The Court underscored that, in the current geopolitical context, the need for politically neutral National Armed Forces was particularly pronounced. Political neutrality of the National Armed Forces facilitates effective performance of the national defence functions and, thus, protection of the democratic state order and public security is ensured. So, restriction was declared as constitutional. This example shows us how applying the test of proportionality geopolitical context could be used striking the proper balance between the right to freely choose employment on the one hand and protection of the democratic state order on the other hand. I do believe that in the other circumstances, in other political culture and in other society the proper balance could shift in favour of the right to employment.
Another example is related to the aspect how geopolitical context play the role in defining whether two groups are comparable applying the principle of equality. The case was about the provisions that envisage expiration of the term of permanent residence permits, issued to citizens of the Russian Federation, and pre-conditions for obtaining a repeated permit. The contested provision applies just to citizens of the Russian Federation who are former citizens and aliens of Latvia and who have permanently resided in Latvia. This requirement was not extended to other foreigners.
The Court noted that the state had discretion in assessing various risks to national security and, accordingly, to change its immigration policy in order to react to them. The Court emphasised that the Russian Federation was recognised as a state sponsor of terrorism and the contested provision ensured that its citizens might stay in Latvia only if they did not endanger the security of the state.
Taking into account that the adoption of the contested provision was related to the war initiated by the Russian Federation in Ukraine and, accordingly, to the possible security risks for the state of Latvia, the Court recognised that the citizens of the Russian Federation were not in equal and, in terms of certain criteria, comparable with all other foreign nationals who had a permanent residence permit. In particular, the nationals of those countries are not Latvia’s neighbours, and that did not start military action against their own neighbouring countries, or historically threatened Latvia’s national security. Therefore, the Court found that the groups are not comparable and contested provision complies with the principle of equality.
In another case regarding provisions that imposed the obligation on municipalities to dismantle objects that glorified the Soviet regime, the Constitutional Court specified the principle of the continuity of the Latvian State and its importance in restoring historical justice and the statehood of the Republic of Latvia, established in 1918. In this case, the Constitutional Court recognised that the reason for adopting the contested provisions had been increasingly more active use of the objects that glorified the Soviet regime for propaganda purposes and increasingly more serious threat to Latvia’s statehood that had to be eliminated. The Constitutional Court underscored that the elimination of the consequences of occupation and fostering of societal cohesion required cooperation among all levels of the state power, aimed at reaching a common aim and solidarity, which would comprise both the central power and local governments.
I would also like to draw attention to the fact that several years ago, the Constitutional Court of Latvia reviewed the constitutionality of the prohibition to stand for the parliament elections to persons who, after the year 1991, had been members of organisations, the activities of which were aimed against the independence of the State and the principles of a democratic state, governed by the rule of law. The Constitutional Court had reviewed before, twice, the proportionality of such a restriction, concluding that it could exist for a certain period of time, therefore the legislator, by regularly assessing the political situation in the state, should decide on the necessity and validity of this restriction. Namely, any restriction on electoral rights must be assessed in the context of the state’s democratic development. Therefore, the legislator must consider regularly the need for such restrictions, aligning these with the level of democratic development in the state at the particular moment in time.
The next example concerns restrictions on freedom of speech. We can observe that the geopolitical context is increasingly entering the judicial process through another aspect. Even five years ago, we could not have imagined a situation involving mass decision-making to block media, such as TV channels and websites.
Soon after the full scale invasion of Ukraine started, the National Electronic Media Council of Latvia adopted many decisions blocking Russian media. Media Council argued that these media outlets spread messages threatening state security such as claims that the Baltic states are Russian territory or that Ukraine is initiating a war against Russia. Therefore, the Media Council deemed it necessary to adopt measures to safeguard territorial integrity and national and public security, particularly in the context of the prevailing geopolitical circumstances.
One of the most discussed cases is the Media Council’s decision to revoke the broadcast permission of the TV channel Dozhd (TV Rain). The Council found that TV Rain disseminated inaccurate and misleading information concerning the territorial integrity of Ukraine, made statements suggesting Russia’s was integrated with Latvia’s army and vice versa, issued calls for assistance to the Russian army, and depicted Crimea on the map as part of Russian territory etc. It was concluded that TV Rain poses threats to national security by supporting state of terrorism which is contrary to the interests of Latvian state and public security. TV Rain challenged the Media Council’s decision in court. The court emphasized that in times of war it is crucial to provide accurate information and that systematic distribution of inaccurate statements and calls for help to Russian army endangers security of Latvia and other European countries.
In conclusion – protection of the state democratic order is our shared priority. Self-defending democracy is not a static situation but rather an continues process, which must be constantly monitored and improved. In times of war in Europe, when our societies becoming more and more polarized, the role of the courts is changing. The courts not just implement fundamental rights. Nowadays the courts have certain role to stabilize the democratic system and political order in the long term and maintain its functioning. The courts have a role to bring stability in our societies.
Furthermore, our generation live in turbulent times when our values and democratic state order is under serious threat. That is our greatest challenge as a lawyer, as judges, to defend our values with the power of law. And considering geopolitical context is the right way how to reach fair and sustainable ruling that can defend our democracy and values.
[1] With the contribution of Andrejs Stupins-Jēgers, Adviser of the President of the Constitutional court.