Speech by the Vice-President Sanita Osipova in bilateral meeting with the Judges of Constitutional Court of Austria
Professor, Dr. iur. Sanita Osipova
Vice-President Sanita Osipova of the Constitutional Court
Vienna 03 July 2019
Constitutional identity of the Republic of Latvia in judgments of the Constitutional Court
The contemporary model of a state – constitutional representative democracy – has been in formation for centuries, if not millennia. Its foundation is in the heritage of the ancient and Christian culture. The understanding formed by this cultural heritage of natural law, the value and rationality of a human being, socially responsible society and other components simply requires the establishment of a structure of a state governed by the people that guarantees human rights and freedoms because everyone is considered to be sufficiently intelligent in order to be endowed with rights and self-determination. We could call this system of ideas and values the foundation of the European constitutional identity, to the creation and defending of which France has given a significant contribution.
But where does one look for the constitutional identity of a state? Who draws the limits to the discretion of states and also the European Union that they exercise when creating new laws and establishing a new order? What is the basis of the unity of a national legal system and what is the starting point for creating new laws? In recent decades legal doctrine and also case-law has been using a new concept to describe the foundation of a particular nation – the constitutional identity of a state.
The European legal thought has approached this concept gradually. Charles Louis Montesquieu defined the idea of the spirit of the nation or mentality, which determines the life of each nation, including law. In the 19th century Friedrich Carl von Savigny referred to the national spirit or sense of law. A century later Hans Kelsen considered that the life of the nation is guided by the basic norm (Grundnorm) which also described the limits of the discretion of the legislator. At the turn of the 20th and 21st centuries lawyers postulate that it is determined by the constitutional identity of the state. It is possible to trace a successive development of these concepts in the European legal philosophy. They are not mutually exclusive but rather complementary concepts. The latest stage in this string of concepts is the concept of the constitutional identity of the state which encompasses the fundamental values that guarantee the self of the state. Even though the concept of “constitutional identity” was introduced in the Latvian legal philosophy only in 2012, already prior to that, with the exception of the interruption during the years of the Soviet occupation, the legal doctrine aimed at legal protection of the self or the mentality of the nation has been developing in step with the developments of the European jurisprudence. In the “old” Member States of the European Union this concept was developed by lawyers in order to protect the legal system of a state from external interference which might be effected by the European Court of Justice or the European Court of Human Rights acting ultra vires, Latvia by means of this concept was attempting to defend itself, as a democratic state governed by the rule of law, from internal threats, thereby strengthening Latvia as a democracy capable of defending itself. This had been done in the Western states already after the Second World War, because Germany had experienced that democracy may be destroyed by undemocratic forces coming to power by lawful means.
There have been extensive discussions in Latvia during the last decade about what constitutes the core of our Constitution (Satversme) or, in other words, what are the principal constitutional values of our state that serve as cornerstones of Latvian statehood. The document that resonated the most among lawyers and non-lawyers alike was the opinion of 17 September 2012 of the Constitutional Law Commission set up by the President of Latvia “On the constitutional foundations of the state of Latvia and the immutable core [of the Constitution]”. The opinion focused extensively exactly on the constitutional identity of the state and it was emphasised that there are constitutional values in the state that are the fundamental values of the particular society; these values determine the self or the identity of the state. It was exactly by means of this opinion that the new concept – constitutional identity – entered our doctrine of constitutional law. The opinion of the Commission postulates that the identity of the nation is shaped by the language and culture of the state but “in a broader sense particularly the fundamental values belong to it”. Hence the essence or the self of each particular state consists of the fundamental values safeguarded by the constitution. These fundamental values exist in the consciousness of the nation and they unite the nation but for their protection and also for the purpose of legal certainty they are written down in the constitution. To this I would add that also national symbols are collective values that unite the society by attracting it to the state and by expressing their state-volition[1] and therefore symbols, too, belong to the constitutional identity of the state. Symbols of the state, such as the national flag, the anthem, the coat of arms, materialise and mark the social unity. A person’s attitude towards the symbols of one’s states allows to draw conclusions about such a person’s attitude towards their state and nation, which otherwise remains largely hidden from the society.
In my opinion, it is exactly “identity” that is the keyword of the opinion of the Constitutional Law Commission of the President of Latvia because it is exactly by means of the constitutional identity of the state that one can identify the core of the Constitution which carries the essence of this identity. Even though in the post-modern culture we are talking about the relativity of values, there still exist values that are recognised as such collectively and immutably because exactly these values ensure the unity and sustainability of the nation. Constitutional values as points of reference or benchmarks tie together the entire society and enable mutual understanding, as well as ensure the existence of the state throughout the time.
The constitutional identity that unites the nation on the cognitive level may be legally secured by, first of all, the legislator who may expand the contents of fundamental values in a constitution or constitutional laws, as well as in ordinary laws. In Latvia there is no tradition of constitutional laws, albeit several such laws have been adopted in our legal system. Our legislator legally secured the constitutional identity by using the Constitution. This was done when the Constitution was drafted in 1920-1922 and is being done at present as well. The latest such amendments were adopted in 2014 when a new preamble was added to the Constitution of the Republic of Latvia of 1922. The text of the preamble covers decisive moments in the history of the Latvian nation, the most significant national traditions, and constitutional values. History of the nation and legal protection of national traditions was not previously enshrined in the Constitution. On the other hand, the values that are mentioned in the preamble: “the Latvian language as the only official language, freedom, equality, solidarity, justice, honesty, work ethic and family are the foundations of a cohesive society” were already previously secured in the text of the Constitution. The status of the Latvian language as the official language was incorporated in Article 4 of the Constitution in 1998. Prior to that, Article 4 only provided for a description of the standard for the national flag. On the other hand, the other constitutional values protected by the preamble were already protected by means of constitutional provisions protecting fundamental rights. Prior to the adoption of the preamble of the Constitution the Constitutional Court had found constitutional values in fundamental rights provisions; the most extensive source of constitutional values was Article 1 of the Constitution: “Latvia is an independent democratic republic” from which the constitutional principles of our state were derived.
The second public body that primarily protects the constitutional identity of the state of the Constitutional Court. It is so because each constitutional court functions not in order to protect the literal text of the constitution but rather the constitutional identity enshrined by it. These days we talk more and more often about internal and external threats to the sovereignty of the state and its constitutional identity. This is why, for the purpose of protecting statehood, constitutional court have undertaken to carry out the so-called “identity control” as it has been called in the German constitutional doctrine. Today such a control is already so self-evident that it is being taught to law students that are studying the basics of constitutional law. The Constitutional Court of the Republic of Latvia in its judicature has also assessed the compatibility of contested norms or of arguments of the applicant with the constitutional identity of the Republic of Latvia – the core of the Constitution.
Constitutional identity is a rather broad concept which is why in what follows I will focus on a narrower topic. Constitutional identity is characterised by symbols that unite the nation. Within the course of our conversation I will focus on two symbols of the state – the flag and the language. What is more, in Latvia both of these symbols are included in one article of the Constitution.
In this respect of a great interest is the “National Flag Case” or the Constitutional Court case no. 2015-01-01. After the Soviet occupation of Latvia in 1940 the flag of the Republic of Latvia was one of the symbols of the national resistance. The Soviet state was very scrupulous with regard to the normative regulation of the use of symbols of the state. A penalty was envisaged for incorrect or disrespectful usage of the symbols of the USSR; however, here I will not focus on the use of the symbols of the USSR and on the penalties envisaged in cases when a person’s loyalty to the state was questioned. The totalitarian regime demanded display of absolute loyalty and subordination to the regime, which led to absurd situations, such as one described by Solzhenitsyn where a person was deported to Siberia because their neighbours had denounced him for using as toilet paper a newspaper with Stalin’s photograph in it. On the other hand, the use of the symbols of independence of the occupied states was harshly sanctioned. At the end of 1980s the national reawakening of the Latvian nation began by public displays of flags of the Republic of Latvia. Public demonstrations looked like a sea of flags.
In its judgment of 2 July 2015 in case no. 2015-01-01 the Constitutional Court has postulated the following: “The Latvian national flag symbolizes the historical process of the consolidation of the Latvian nation, as well as the fight for independence and a democratic state of Latvia. The national flag as the symbol of the state has an important role in shaping awareness of the statehood and strengthening it in all stages of the national history. For example, the special symbolic role of the Latvian national flag during the period of Soviet occupation and the Third Awakening may be highlighted”.[2] The case was initiated on the basis of an individual complaint. A person submitted a complaint to the Court because an administrative penalty was envisaged for failure to display the flag on national holidays and mourning days. The person submitted that one of the mourning days coincides with her family holiday which conflicts with a flag in a mourning presentation that is placed on her building. The person argued that the administrative penalty imposed on her for the failure to display the flag restricts her right to a freedom of expression, guaranteed by Article 100 of the Constitution of the Republic of Latvia. Using the Latvian state flag as a symbol of a state is one of the ways by which a person expresses their views non-verbally. According to the petitioner, she had been forced to express views that are loyal to the state in a place, time and manner that had been unacceptable for her. The petitioner emphasised that she used the Latvian state flag only in situations when she wished to express her opinion about the events in the state.
The judgment of the Constitutional Court in this case is still perceived as being controversial by the society. On the one hand, the judgment concludes that the Latvian state flag is an indispensable element of the constitutional and international identity of the Latvian state and that it symbolizes the historical process of the consolidation of the Latvian nation, as well as the fight for independence and a democratic state of Latvia. It has been recognised in the judgment that the obligation to display the national flag on residential buildings on holidays and memorial days strengthens the awareness of statehood and hence also the democratic Republic of Latvia. However, the fact that a penalty is envisaged for failure to fulfil this obligation creates the possibility that a flag is displayed on buildings not because of patriotism but because of the envisaged penalty. Establishing a penalty for ensuring that obligations of civic nature are performed can be found proportional only in exceptional cases. In a democratic state, alongside imperative measures, also preconditions of general nature should be created for voluntary performance of civic obligations, which primary are based not upon fear of punishment, but in the awareness of the statehood. In a democratic society it is not permissible to impose penalties for failure to express an opinion.
Professor of politics Ivars Ijabs who had been invited to submit his opinion in the case expressed the view that “looking back at the history, it may be concluded that a strong requirement to express loyalty to a particular political ideology has been characteristic for authoritarian and totalitarian regimes; however, such a tendency may be observed also in new, weakly consolidated democratic states”.[3] When preparing the judgment the Constitutional Court compiled information about the experience of other states with respect to legal provisions that pertain to the display of the flag of the state. This compilation allows to discern an interesting tendency. Namely, most of the post-socialist countries still protect their new democratic identity of the state by employing methods that restrict fundamental human rights, including by requiring an external display of loyalty in a strictly regulated form. The Latvian society, including some of the lawyers, also find it difficult to accept a system in which there may be legal provisions that encourage and educate the society but do not contain any sanctions. In my opinion, the above-mentioned judgment is a significant step towards overcoming in Latvia the archetype of thinking originating from the Soviet times: “the constitution is declaratory; therefore, in externally and formally its demands are being met, everything is well; those that do not take part in this collective demonstration of loyalty are punished”.
Continuing the theme of the contribution of the Constitutional Court to describing and protecting the constitutional identity, I would also like to turn to the Latvian language as an essential characteristic of the constitutional identity of the Republic of Latvia. A word, or language, thought, idea is one of the reference points for the creation of a society and the existence of a collective. Language transforms a human from a biological being into a social being, by allowing communication with other humans; it forms the foundation of thinking and forms human personality. Learning a language allows a person to integrate in a particular society. The language of a person gives others extensive information about the speaker: it allows to understand the person’s roots, to establish the region they come from, their level of education and perhaps even their occupation, tastes, tactfulness and sense of humour. We express ourselves by means of language and our language characterises us.
Each of the aspects of linguistic expressions is worthy of a detailed study; however, that is not our task for today. Language is a significant part of national identity. Furthermore, language as an official language is threatened both in larger and smaller states due to certain social processes that take place in a postmodern society. A large nation may be characterised by an emphatic sense of inherent value, while a small nation is frequently united due to the fear of disappearing, dissolving among larger nations, by losing their language and hence also their self. The mayor of the Lithuanian town of Biržai Valdemaras Valkiūnas on the occasion of the Lithuanian centenary proclaimed that “Our mission [is] to survive as a nation”. This says it all. The entire emotional spectrum that governs the thoughts and feelings of people belonging to small nations.
On the other hand, the languages of larger nations are under threat in our time when, on the one hand, the migration period (Völkerwanderung) has started again and, on the other hand, the communication on the internet has no borders. A language may be threatened by, for instance, a large number of users of the language for whom it is not the native language. This may lead to vulgarisation of the language, derogation from the rules of grammar and abandonment of the rich vocabulary of the language, of using double meanings of words and phrases. In other words, the fact that a language is used by an enormous number of persons who are not really fluent in it, may limit the broad flow of the language to a bare minimum that is used grammatically incorrectly. Such is, for instance, the threat faced by British English in the context of processes of globalisation where a rather primitive English with comparatively limited vocabulary is being used. Users shape the language! Only part of the users of a language for whom it is not the native language are capable of learning the language completely correctly. German media have written extensively about the problems related to teaching German at an adequate level because there are areas of larger cities where first-graders with German as their native language are few and far between.
On the other hand, for a small nation to lose its language means losing part of its cultural heritage – the part of the culture that is tied to the verbal form: literature, science, song lyrics, folklore and also legal provisions, case-law, doctrine, etc. The Latvian nation is a small one – throughout the world there are fewer than 2 million people for whom the Latvian language is their native language. Historically, for a long time we have been a nation that has been subordinated to other nations. That is reflected also in terms of the language. From the 13th century until the end of the 19th century in most of the territory of Latvia the official language was German. At the end of the 19th century when the processes of centralisation of the state power and russification started in the Russian Empire, Russian became the official language. I will not talk about how the rights of the minorities were restricted in the Russian Empire but I will mention just one example. In schools the language of instruction was Russian and the Latvian children were not allowed to talk among themselves in their native language. If they were caught using their native language, they were punished, including by corporal and degrading punishments. In 1918 the Latvian state was established. Latvians became the titular nation and the Latvian language became the official language. However, along with the Latvian language public institutions continued using also the former official languages – German and Russian. Only after the authoritarian leader Kārlis Ulmanis came to power in 1934, the Latvian language became the only language of communication in public institutions. The Soviet occupation of 1940 brought with it a new wave of russification. Holding on to their language for the Latvians meant remaining Latvian, despite the fact that the Soviet power had created a “melting pot of nations” in which all the Soviet nations were supposed to melt into a united Soviet nation that would speak in Russian. Therefore the renewed Republic of Latvia is particularly careful in protecting the Latvian language as the official language.
It is symptomatic that both new states and also states with considerable experience consolidated the status of the official language in their constitutions at approximately the same time at the end of the 20th century. The national legislators recognised and protected the constitutional identity. The Baltic States have chosen rather comparable solutions. In the chapter on the foundations of the state of the Constitution of Estonia of 28 June 1992 in Article 6 it is stated: “The Estonian language is the official language”. Article 14 of the Constitution of Lithuania of 25 October 1992 proclaims the Lithuanian language to be the official language. Latvia was the last of the Baltic States to incorporate the official language in the Constitution of 1992, by amending, on 15 October 1998, its Article 4 by adding the first sentence: “The Latvian language is the official language in the Republic of Latvia”. The Baltic States, for whom the official language is a particularly significant issue are neither the first nor the only ones who consolidated the official language in their constitutions as one of the fundamental values of the state. Almost simultaneously on 25 June 1992, the Constitution of France of 1958 was amended. In Chapter I of the Constitution “On Sovereignty” Article 2 was supplemented by paragraph 1: “the French language is the language of the Republic”, leaving behind the language as the foundation of the sovereignty of the nation the national flag and anthem, as well as the motto and principles of the Republic.
As mentioned before, the Latvian legislator has protected the official language in double: by adding the first sentence to Article 4 of Chapter 1 of the Constitution on 15 October 1998 as well as by adding a new preamble to the Constitution in June 2014 which provides for “the Latvian language as the only official language”. This was the legislator’s response to the so-called language referendum of the plebiscite of 2012 concerning a draft law “Amendments to the Constitution of the Republic of Latvia” that envisaged amendments to Articles 4, 18, 21, 101 and 104 of the Constitution, granting the Russian language the status of the second official language. This referendum demonstrated the significance of the Latvian language in the discourse of constitutional identity. The referendum was marked by an unprecedented turnout of voters (70,5% of voters) from which 24,9% supported the initiative to grant the Russian language the status of the second official language, while 74,8% voted against. The outcome of this referendum made topical the issue of the Latvian language as the only official language that belongs to the immutable core of the Constitution and forms the constitutional identity of the Republic of Latvia. The aforementioned describes the efforts of the legislator and the Constitutional Court in protecting the language – one of the most significant values of our nation.
In the case-law of the Constitutional Court the Latvian language has been seen as part of the constitutional identity: “Taking into account the historical features and the fact that the number of Latvians in the territory of the state has decreased during the 20th century and in some of the largest cities, including Riga, Latvians are a minority and that the Latvian language has only recently regained the status of the official language, the necessity of protecting the official language and strengthening its usage is closely connected to the democratic system of the state of Latvia. … Taking into consideration that the Latvian language has been recognised as the official language in the Constitution and the fact that in the era of globalization Latvia is the only place in the world where the existence and development of the Latvian language and together with it the existence of the Latvian nation may be guaranteed, a limitation of areas where the Latvian language is used as the official language in the territory of the state shall also be seen as a threat to the democratic system.”[4]
Significant findings from other judgments: judgment of the Constitutional Court of 5 June 2003 in case no. 2003-02-0106: “along with material welfare, the notion “public welfare” also includes non-material aspects which are necessary for harmonious functioning of the society. Activities of the state directed towards ensuring the public dominance of the Latvian language may be one of such non-material aspects. [..] Increasing the influence of the Latvian language would further the integration of the society and would secure harmonious functioning of the society which is an essential precondition of public welfare”.[5]
Thus, very briefly, by trying to create a historical and comparative discourse by seeing Latvia in the European context I have tried to cover the very extensive topic of Latvian constitutional identity. While protecting one’s identity from threats of globalisation, one should be aware of the principal constitutional values and the desire to consolidate a sustainable national state.
Thank you for your attention!
[1] Valstsgriba in Latvian – a term of art introduced in the preamble of the Latvian Constitution where it is translated into English as “the … will of the Latvian nation to have its own State”.
[2] Judgment of the Constitutional Court of 2 July 2015, case no. 2015-01-01, para. 15.2.
[3] Judgment of the Constitutional Court of 2 July 2015, case no. 2015-01-01, para. 8.
[4] Judgment of the Constitutional Court of 21 December 2001 in case no. 2001-04-0103, para. 3.2 of the motives part.
[5] Judgment of the Constitutional Court of 5 June 2003 in case no. 2003-02-0106, para. 3 of the motives part.