Press release: Report on the Primacy provision of Section 106 of the Constitution and the requirement of evident conflict
Aug 18, 2021
The Human Rights Centre’s publication Primacy provision of Section 106 of the Constitution and the requirement of evident conflict − is it time for a change? discusses the need for change related to the Primacy provision of Article 106 of the Constitution in relation to the requirement of evident conflict.
The report examines court rulings in which the court has legally found an evident conflict between the Constitution and the application of the provision of the law. The report presents the findings that emerge from the decisions, such as that all decisions concern fundamental rights, half of the decisions were voted on, and that the number of decisions is quite small. The report also discusses the views expressed in connection with the preparation of the constitutional amendment that entered into force in 2011 and the views expressed in legal literature on the necessity and justification of the requirement for evident conflict.
In particular, the court's threshold for not applying a provision of law that is in conflict with the Constitution is currently higher than the court's threshold for not applying a provision which is in conflict with EU law or international human rights obligations due to the requirement of being evident. This should be considered in favour of removing the Primacy provision of the Constitution and the requirement of evident conflict. On the other hand, the separation of powers between the legislator and the court as well as the primacy of the legislator vis-à-vis the court and the self-limitation of the court vis-à-vis the legislator have been emphasised in favour of maintaining the criteria on evident conflict.
The significance of international human rights obligations in national jurisprudence has increased, and the courts refer in particular to the European Convention on Human Rights more than before. It is important that the courts in Finland are able to respond to the growing international development of fundamental and human rights obligations and the internationalisation of constitutional law and to safeguard fundamental and human rights in accordance with them. If the courts could resolve conflicts falling within the scope of Article 106 of the Constitution without the categorisation of conflict and self-limitation resulting from the requirement of evident conflict, they could follow international human rights obligations more flexibly in resolving conflicts. The abolition of the requirement of evident conflict would not mean an increase in the jurisdiction of the court in relation to the legislator, as the abstract assessment of constitutionality by the legislator and the Constitutional Committee would remain. In the assessment of the Court, a positive interpretation of fundamental rights would remain the primary means of resolving the conflict.
The HRC is an autonomous and independent expert institution whose task is to monitor and promote the implementation of fundamental and human rights in Finland.
Maija Hirvi, associate expert, Human Rights Centre
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Sirpa Rautio, director, Human Rights Centre
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