Tasavallan presidentti Tarja Halosen puhe Pohjoismaisessa ihmisoikeussymposiumissa “Human Rights as a Challenge to Nordic Democracy” Turussa 4.5.2006 (vain englanniksi)

(muutosvarauksin)

It gives me pleasure to address this Nordic Human Rights Symposium hosted by Åbo Akademi University. The theme of the event, focusing on possible tensions between the protection of human rights and Nordic democracy, is again important and actual in this globalized world. While it may appear clear and simple to identify the proper cause of action in a single issue and a specific context, it has proven challenging to be guided simultaneously by the principles on which democratic welfare societies are built and the rights-based model of society that is inherent in the normative code of human rights.

Within the political circles it was the human rights commitment that was challenged most often. For politicians of the previous generation the question was often of a choice between the power of elected Parliament to decide through majority rule about building welfare society, and such constitutional constraints that could be invoked by the opposition to block majority decisions and hence consistency in policy. Rights were often understood as individualistic privileges that are protected at the expense of the well-being of much larger segments of the population. Fortunately, in Finland greater awareness of international human rights treaties from late 1980s onwards, the ratification of the European Convention on Human Rights in 1990 and the reform process of the constitutional Bill of Rights in 1989-1995 enabled a better informed discussion resulting in voluntary and broadly agreed process to strengthen the protection of all categories of human rights through democratic decisions. Let me remind that for instance the Bill of Rights reform was finally approved not only through a democratic process but even unanimously by our Parliament.

One particular area where the challenges related to possible tensions between democracy and rights are genuine, is the role of self-governing municipalities as key providers of the Nordic model of welfare society. This model is based on the availability of services and entitlements for every member of society, including for those who for one reason or the other are not actively engaged in gainful employment. At the same time, an important dimension in Nordic democracy is the existence of local democracy through municipal autonomy.

In Scandinavia municipal autonomy is in the international context relatively strong. Compared to municipalities in other European countries they are also rather large. Reason for this is their responsibility to provide welfare services. For instance in Finland, the inhabitants of each municipality elect every four years a Municipal Council which appoints the executive organs, directs policy and decides the budget of the municipality. Municipalities have taxation powers which contribute to their autonomy – at least on paper. The sphere of municipal autonomy but also the tasks of municipalities are nevertheless determined by Acts of Parliament. In constitutional terms this means that municipalities enjoy, under Section 121 of the Finnish Constitution, only a weak form of autonomy. The borders of autonomy are not constitutionally entrenched but are subject to the power of Parliament to amend through ordinary law.

In implementing laws passed by Parliament, municipalities have primary responsibility for the implementation of many central economic, social and cultural rights. For instance, social assistance, health services and primary and secondary education are to a high degree run by municipalities. Although the municipalities have taxation powers, they also receive subsidies from the state budget to fund their tasks as required by laws passed by Parliament.

Finland’s constitutional provisions on economic, social and cultural rights were enacted in a highly democratic order. The Bill of Rights in Chapter II of the Finnish Constitution protects also these rights as justiciable individual entitlements. Let me quote the first clauses in Sections 19 and 16 of the Constitution:

First clause of Section 19: Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care.

First clause of Section 16: Everyone has the right to basic education free of charge. - In matter of fact this is one the oldest cultural rights in Finland, because in 1898 the municipalities were obliged to organize basic education for all school aged children.

In exercising its constitutional powers Parliament, in turn, has through a democratic process decided about laws that further specify the contents of economic, social and cultural rights, quite often in the form of so-called subjective rights, that is, rights that can be invoked before courts. What does this mean for municipal autonomy?

Municipalities are public authorities that are bound by the Constitution and ordinary laws. They are also subject to review by administrative courts, through the general right of all members of the municipality or of directly affected individuals to file an appeal against a municipal decision, or through a separate procedure for so-called administrative disputes. In both situations, the administrative court will interpret the Constitution and laws enacted by Parliament to determine whether the person in question enjoys an effective individual right in respect of the municipality.

Let me mention some important judicial decisions in the field of economic, social and cultural rights:

Administrative courts and the Supreme Administrative Court have systematically applied the first subsection of Section 19 of the Constitution and the Act on Social Assistance in a manner that outlaws such municipal guidelines on the allocation of social assistance that would exclude from the benefits any category of persons. The courts have insisted, in the spirit of the constitutional provision mentioned, that the allocation of social assistance must be based on an assessment of individual needs, not on membership in a group. Students, self-employed persons and prisoners have been among the groups that have benefited from such judicial decisions.

Already in 1997 the Supreme Court of Finland – which usually does not deal with social welfare issues – ordered a municipality to pay damages to an individual due to its failure to comply with an Act of Parliament that imposed on municipalities a duty to provide a job for long-term unemployed persons. Similarly, in 2001 the Supreme Court ordered a municipality to pay damages to a family that had only after a certain delay been provided with municipal day-care for a child under schooling age, a subjective social right in Finland according to the Day Care Act enacted by Parliament.

As an illustrative example of the outcomes of the procedure for administrative disputes, reference can be made to a case decided in 2000 by the Supreme Administrative Court. In this case, a municipality was ordered to provide special orthopedic shoes to a person with disabilities, in accordance with her medically assessed needs, instead of following a municipal guideline restricting the number of shoes that could annually be paid.

It is quite understandable that in the leadership of municipalities this kind of jurisprudence and more generally the expanding scope and growing importance of economic, social and cultural rights has raised concern. Even without this trend municipalities often experience that their range for deciding their own priorities and policies, for instance through decisions on the municipal budget and the taxation rate, has become very limited. State taxes are felt to be so high that municipalities may fear that any increase in the municipal tax may result in their high-income taxpayers moving somewhere else. Municipalities are economically dependant on subsidies that come from the state for their duties prescribed in laws passed by Parliament. Furthermore, these laws are often so detailed that they appear to determine all policy choices also on behalf of the municipal decision-maker.

What I assess as a healthy dimension in the Finnish discussion is that even those who are critical of the diminishing discretion of municipalities as a consequence of stronger protection for economic, social and cultural rights, generally do not blame the judiciary for an usurpation of power. Rather, and correctly, the administrative courts, and occasionally also other courts, are understood to be securing the uniform application of the laws passed by Parliament, including the constitutional provisions on non-discrimination and economic, social and cultural rights. In applying economic, social and cultural rights the judiciary is defending democracy by insisting on the application of constitutional and other provisions on those rights, as they have been defined and decided by Parliament through a democratic process.

Hence, the tensions in this field are not between human rights and democracy. Rather, they appear between local democracy and parliamentary democracy. It may very well be that from the perspective of popular empowerment Parliament has too much of an upper hand in respect of municipal autonomy. The tasks and obligations of municipalities are closely regulated by law, and tight economic necessities determine that when Parliament has enacted national laws on taxation, there is not much room for municipalities to freely decide about the level of the municipal tax. But should it be so?

The dilemma is real but one should not blame human rights or the judiciary if the consequence is that municipal autonomy is experienced as being reduced to an empty shell. Rather, one should look for strategies and solutions through which constitutional rights and international human rights could be invoked in support of empowering ordinary people, inter alia through their right to municipal autonomy.

For their part international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, and the Revised European Social Charter can come to the assistance of those who would wish to see a stronger role for self-governing municipalities in the defence and development of Nordic welfare societies. On the international level it is always the State Party that ratifies a human rights treaty that is held responsible for its possible breaches. Municipalities cannot complain to the European Court of Human Rights or the European Committee of Social Rights for human rights breaches by the state. But they can use the country’s existing human rights treaty obligations as a moral, political and legal argument in a campaign for the state taking greater responsibility for economic, social and cultural rights, inter alia by securing that municipalities have adequate economic resources to take care of all the obligations imposed upon them by laws adopted by Parliament. Once there is stronger awareness of this need, and such awareness can be mobilized to achieving greater harmony between the duties and capacities of municipalities, local democracy and municipal autonomy will get more breathing space, also in respect of establishing policy priorities and deciding about resource allocation. The Nordic model of welfare society, or economic, social and cultural rights as human and legal rights, need not be a straitjacket to municipal self-government. They can also be relied upon as a source for popular empowerment and strategies that enhance municipal autonomy.

My aim here is not to participate in a discussion that is currently debated within Finnish government, namely whether our municipalities should to a greater extent than now in practice be funded by levying taxes from their inhabitant. This proposal would entail a cut in the current level of subsidies paid from the state budget for the municipalities for their duties specified in laws adopted by Parliament. All that I wish to say in relation to this ongoing discussion is that we are dealing with a difficult equation where all parameters affect each other and where also possible unintended consequences must be carefully thought of. Hopefully the conclusions drawn from the debate will be in favour of both popular empowerment and human rights.

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There has been discussion in Finland concerning people's rights to choose freely where they live. It can be seen that the rights of disabled are more likely to be achieved in larger cities. This may affect the decision of the parent of disabled children when they choose their place of residence. It can also be pointed out that a right to live in any of the Nordic countries has worked without any major problems, but we do have very similar systems. When Finland joined EU it raised similar debate on the free movement of people and migration. Before the EU enlargement in 2004, there was concern that people from the poorer countries would like to immigrate to Finland. Even though it is too early to say what will happen, it is interesting to see that now more migration is needed owing to an aging population.

Globalisation does not need to undermine the welfare state model. In fact, all five Nordic countries do extremely well in different international surveys on competitiveness, good governance, as well as social welfare and social security. But, a totally different matter is, of course, will common good remain more important than shortsighted individual greediness.

I am well aware of the fact that universities in Finland are faced with analogous but not identical challenges as municipalities. They, too, enjoy autonomy according to Section 123 of the Constitution of Finland. And similarly to the situation of municipalities, their autonomy is of a “weak” variant in that its exact scope is defined through laws passed by Parliament.

Nevertheless, I wish to express my appreciation for the way in which Åbo Akademi University exercises its autonomy. As the single Swedish-language university in Finland it has an important cultural mission. At the same time, Åbo Akademi has understood the imperative of going international – in the Nordic, European and even global meaning of the term. The decision to launch an English-language Master’s Programme in Human Rights Law later this year bears witness of the Åbo Akademi’s broadmindedness and commitment to internationalisation. Mr Rector, I wish to express my appreciation for this decision and the other ways through which Åbo Akademi supports the existence and continuing development of the Institute for Human Rights under its auspices.

To all the participants of this Symposium, I would like to express my regret for not being able to stay through the full programme. I hope your discussions will be both critical and constructive at the same time, and contribute to the further development of cooperation between the Nordic human rights institutes and centres, and within the broader Nordic human rights community.