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“Regular Powers are No Longer
Enough” – Checks and Balances in
Declaring a State of Emergency
according to the Constitution of Finland
Tuukka Brunila and Janne Salminen
1 Introduction ...................................................................................... 216
2 Checks and Balances in Declaring a State of Emergency ............. 218
2.1 Checks and Balances? .................................................................. 218
2.2 Capacity of the Parliament to Check the Executive ..................... 218
2.3 Declaring a State of Emergency ................................................... 221
3 Declaring a State of Emergency in the Finnish Constitutional
Context ............................................................................................... 222
3.1 Current Legislation ....................................................................... 222
3.2 Background of the Current Legislation ........................................ 224
3.3 Role of the President of the Republic? ......................................... 225
3.4 Cooperation within the Executive When Declaring the State
of Exception and Procedure ......................................................... 226
3.5 From Declaration of the Emergency to Operation - Role of
the Parliament ............................................................................... 227
4 Discussion of Results ........................................................................ 228
4.1 General Remarks .......................................................................... 228
4.2 COVID-19 Pandemic - Emergency Experiences ......................... 230
Tuukka Brunila, Doctor of Social Sciences, Post-Doctoral Researcher, University of Turku,
Faculty of Law, Email: tuukka.brunila@utu.fi; Janne Salminen, Doctor of Laws, Professor,
University of Turku, Faculty of Law, Email: janne.salminen@utu.fi. This work was funded
by the Strategic Research Council established within the Research Council of Finland (grant
number 345950).
216 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
1 Introduction
In this article, we discuss checks and balances in declaring a state of exception.
Our focus is on how the Constitution of Finland and legislation concerning
the use of emergency powers uphold the checks and balances in declaring a state
of emergency. Building upon a process which had started already earlier, the
current Constitution of Finland, from the year 2000, transformed the Finnish
system from a semi-presidential to a parliamentary one, which is visible in many
of the constitutional arrangements. The Government is now in charge of
emergency action and the role of the Parliament has been strengthened in
checking the executive during the state of emergency. The development of
Finnish emergency legislation, however, did not happen suddenly; even before
the present Constitution the provision concerning basic rights and liberties in
situations of emergency was re-modelled and included in the chapter of the
Constitution concerning fundamental rights. Furthermore, this process has
continued by means of a separate parliamentary act, the Emergency Powers Act
(2011), which now regulates both procedure and competences regarding the
emergencies under it, and which is currently under revision process.
Recent years have provided unexpected and novel experiences of
organizational practice of the declaration of the state of emergency as emergency
powers were put to use for the first time during the COVID-19 pandemic.
1
At
the time, the Prime Minister, Sanna Marin, gave the following statement to the
Parliament:
Regular powers are no longer enough to protect the population from the widely
spread dangerous infectious disease. For this reason, the government has decided to
implement the Emergency Powers Act and those decrees that the government sees
as being necessary in the current situation and proportional to limiting the spread and
advance of the COVID-19 pandemic […].
2
In order to deal with the situation that was seen as ungovernable by means of
regular powers, the Government decided on emergency measures, the use of
which is regulated by the Finnish Constitution (Section 23) and the Emergency
Powers Act. Thus, we now have some experience of the use of emergency
powers and declaring emergency under the Finnish legal system. Indeed, during
the COVID-19 pandemic years of 2020-2022, emergency was declared twice.
This experience has to be evaluated in view of the ongoing revision of the
Emergency Powers Act, which is under preparation.
3
Similar issues are
discussed, for example, in Sweden.
4
1
Martin Scheinin, 'Finland’s Success in Combatting COVID-19' in Joelle Grogan and Alice
Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (London:
Routledge 2022).
2
Speech of the prime minister Marin in Finnish parliament, ‘Pääministeri Marinin puhe
eduskunnassa 17.3.2020’ The Government Communications Department 18 March 2020
https://valtioneuvosto.fi/-//10616/paaministeri-marinin-puhe-eduskunnassa-17-3-2020.
3
See Ministry of Justice information sheet, at https://oikeusministerio.fi/valmiuslaki-uudistuu
(accessed 17 February 2024).
4
See Stärkt konstitutionell beredskap SOU 2023:75.
Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . . 217
Declaring a state of emergency is a fundamental requirement for the use of
emergency measures. According to the Venice Commission, “it is good practice
for a declaration of a state of emergency to precede the activation and use of
emergency measures.”
5
Here, the declaration itself helps uphold the distinction
between emergency and normalcy. The commitment to this division is, indeed,
one of the important prerequisites of the emergency as a state of exception. There
should be a clear point and moment in which the change from normalcy to
emergency happens. Furthermore, requiring a declaration establishes temporal
limits to emergency powers. In this context, the balance of powers is crucial. A
declaration, at the very least, should be overseen by other branches to ensure that
the state of emergency is justified and proportional. In the Finnish setting, we
will discuss both the “intra-relation” of the executive, i.e. between the
Government and the President of the Republic, and the interrelation between the
executive and legislative power, i.e. the Parliament when declaring the state of
emergency. Here, it should be noted that we are not interested in the judicial side
of the checks and balances. This is because the Finnish constitutional system, as
is the case in other Nordic countries,
6
relies heavily on parliamentary
constitutional control.
7
We underline the checks-and-balances principle in our analysis of the Finnish
Constitution regarding the declaration of the state of emergency. We will first
discuss the basic principles of the separation of powers and checks and balances,
and explicate how these principles are relevant to declaring a state of emergency
(section 2). We then move on to analysing the Finnish legal order, de lege lata,
regarding the declaration of the state of emergency, both on the level of the
Constitution and on the level of the Emergency Powers Act (section 3). The
section elaborates the role of the legislative branch in checking the executive and
the authority of the executive(s) in declaring a state of emergency. By means of
our theoretical discussion and legal analysis, we will evaluate critically the
declaration requirement’s political entailments for the Finnish legal system and
propose some changes for the future, de lege ferenda (section 4). This evaluation
critically assesses the present legislation regarding the declaration and its recent
practice during COVID-19 pandemic.
5
Alivizatos and others, Interim Report on the Measures Taken in the EU Member States as a
Result of the Covid-19 Crisis and Their Impact on Democracy, the Rule of Law and
Fundamental Rights (Opinion No. 995/2020) (Strasbourg: Venice Commission, 2020) 8.
6
Jaakko Husa, ‘Nordic Constitutionalism and European Human Rights – Mixing Oil and
Water?’ (2011) 55 Scandinavian Studies in Law 101; Markku Suksi, ‘Common Roots of
Nordic Constitutional Law? Some Observations on Legal-Historical Development and
Relations between the Constitutional Systems of Five Nordic Countries’ in Helle Krunke and
Björg Thorarensen (eds), The Nordic Constitutions – a Comparative and Contextual Study
(Hart Publishing 2018); Jaakko Husa, ‘Locking in Constitutionality Control in Finland’
(2020) 16 European Constitutional Law Review.
7
J Lavapuro, T Ojanen and M Scheinin, ‘Rights-Based Constitutionalism in Finland and the
Development of Pluralist Constitutional Review’ (2011) 9 International Journal of
Constitutional Law.
218 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
2 Checks and Balances in Declaring a State of Emergency
2.1 Checks and Balances?
In this section, we develop the conception of checks and balances in the context
of declaring a state of exception. With the checks-and-balances principle, we
refer to the role of the three branches of government in overseeing and
controlling each other. There are, however, a few disclaimers that need to be
stated. While our focus is on the role of the legislative branch in overseeing and
controlling the executive, we want to keep our discussion at the level of the
checks-and-balances principle rather than discuss legislative oversight
specifically. First, while we discuss central insights of research addressing
legislative oversight, the checks-and-balances doctrine is more connected to the
broader question of the separation of powers – a fact that we seek to emphasize
in our analysis. Second, it should be noted that, while the checks-and-balances
principle is often associated with United States constitutionalism,
8
its basic
principles can be discussed in the European context as well.
9
The basic idea, as
defined by Jeremy Waldron, is that the principle “requires the ordinary
concurrence of one governmental entity in the actions of another, and thus
permits one entity to check or veto the actions of another.”
10
This principle,
although not explicitly defined as checks and balances, can be found according
to our analysis in the Finnish Constitution regarding the declaration of a state of
exception.
2.2 Capacity of the Parliament to Check the Executive
In the context of the capacity of the parliament to check the executive, scholars
of legislative oversight often argue that the presidential system is better at
facilitating the capacity of the parliament in controlling the executive because
the president as an executive is separated more clearly than the government is in
parliamentary systems.
11
However, there are theoretical and practical issues with this idea. First, these
accounts tend to conflate the separation of powers and checks and balances with
one another. Second, the executive president, in both presidential and semi-
8
Eoin Carolan, The New Separation of Powers: A Theory for the Modern State (Oxford:
Oxford University Press 2009); cf. Joshua Macey and Brian Richardson, 'Checks, Not
Balances' (2022) 101 Texas Law Review 89.
9
E.g. Mauro Barberis, 'Le future passé de la separation des pouvoirs’ (2012) 143 Pouvoirs;
see Ulrich Battis and Christoph Gusy, Einführung in Das Staatsrecht (Berlin: De Gruyter
2018) 220.
10
Jeremy Waldron, 'Separation of Powers in Thought and Practice' (2013) 54 Boston College
Law Review 438.
11
David Beetham, Parliament and Democracy in the Twenty-First Century: A Guide to Good
Practice, (1. repr. October, Geneva: Inter-Parliamentary Union 2007), 115; Hironori
Yamamoto, Tools for Parliamentary Oversight: A Comparative Study of 88 National
Parliaments (Geneva: Inter-Parliamentary Union 2007), 11; Chen Friedberg and Reuven
Hazan, Legislative Oversight (Albany: Center for International Development 2012), 7, 10;
Venice Commission, Compilation of Venice Commission Opinions and Reports Concerning
Separation of Powers, CDL-PI(2020)012 (Strasbourg: Counsil of Europe, 2020) 4.
Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . . 219
presidential systems, may abuse emergency measures for their own benefit. We
will elaborate these two points respectively.
According to what many call the “pure doctrine” of the separation of powers,
the three branches of government must be kept separate for the sake of protecting
political liberty.
12
Instead of defending such a doctrine, scholars often summon
it to prove its untenability. As many have pointed out, the pure doctrine cannot
be maintained, because it does not describe how power is actually distributed
among branches, and because it is be normatively untenable.
13
That is, the
separation of powers in existing constitutional systems neither exist as a “one
branch – one function” sort of sense,
14
nor does it establish any coherent
normative principles.
15
For example, a strict distinction fails to make different
branches accountable to one another, as the more independent they are the more
difficult their control is.
16
Especially in presidential systems, where the
separation between branches is closer to the pure doctrine, impeachment of the
president is often very difficult in contrast to parliamentary systems.
17
Checks and balances is meant to oversee and limit the possibility of abusing
power.
18
M. Elizabeth Magill, although she dismisses both of them as complete
failures because of their unhelpfulness and incoherence as a practice,
19
distinguishes these two principles so that the separation of powers is about
characterizing different forms of powers and allocating them to different
departments, and the checks and balances on power entails making sure that
power in general is evenly distributed and that the departments can ensure this
by having various mechanisms to check one another.
20
These two, therefore,
12
M. J. C. Vile, Constitutionalism and the Separation of Powers, (2nd ed, Indianapolis: Liberty
Fund 1998), 14; Zoltán Balázs, The Principle of the Separation of Powers: A Defense
(Lanham: Lexington Books 2016), 2; Jiří Baroš, Pavel Dufek, and David Kosař, 'Unpacking
the Separation of Powers' in Antonia Baraggia, Cristina Fasone, and Luca P. Vanoni (eds),
New Challenges to the Separation of Powers: Dividing Power (Cheltenham, UK;
Northampton, MA, USA: Edward Elgar Publishing 2020).
13
M. Elizabeth Magill, 'Beyond Powers and Branches in Separation of Powers Law' (2001) 150
University of Pennsylvania Law Review 603–60; Carolan (n 13); Aileen Kavanagh, 'The
Constitutional Separation of Powers' in David Dyzenhaus and Malcolm Thorburn (eds)
Philosophical Foundations of Constitutional Law (Oxford: Oxford University Press 2016)
221–39; Baroš, Dufek, and Kosař (n 12) 133.
14
Kavanagh (n 13) 225.
15
M. Elizabeth Magill, 'The Real Separation in Separation of Powers Law' (2000) 86 Virginia
Law Review 1183–94.
16
Baroš, Dufek, and Kosař (n 12) 139.
17
Bruce Ackerman, The Decline and Fall of the American Republic (Cambridge, Mass.:
Belknap Press of Harvard University Press 2010) 29; Susan Rose-Ackerman, Diane Desierto,
and Natalia Volosin, 'Hyper-Presidentialism: Separation of Powers without Checks and
Balances in Argentina and Philippines' (2011) 29 Berkeley Journal of International Law 329;
Steffen Ganghof, Beyond Presidentialism and Parliamentarism: Democratic Design and the
Separation of Powers, (1st ed. Oxford University Press Oxford 2021) 14, 17.
18
Kavanagh (n 13) 234.
19
Magill 'Beyond Powers and Branches in Separation of Powers Law' (n 13) 605.
20
Magill 'The Real Separation in Separation of Powers Law' (n 15) 1174–75; Baroš, Dufek,
and Kosař (n 12) 136–39.
220 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
entail a different set of questions and worries. Whereas the separation of powers
is meant to ward off tyranny, that is, the situation in which multiple powers are
united in a single department, checks and balances as a principle is concerned
with one department becoming too powerful and capable of undermining the
other two.
21
The checks-and-balances principle, therefore, operates in
mechanisms that seek to prevent abuse of power by means of overlap between
functions.
22
Checks and balances therefore limits the capacity of a branch to act
unilaterally.
23
Especially the authority to use drastic measures, such as
emergency measures, should not be given to just one branch. This means that
checks and balances assumes some form of separation of powers. However,
separation needs to be combined with oversight and control.
24
As Aileen
Kavanagh puts it, the branches must be both “independent and
interdependent.”
25
Many systems try to strike an institutional balance between
overlap and separation, but results differ, as too much overlap, such as in the
U.K., threatens the separation,
26
and a too strict separation, such as in the U.S.,
makes controlling other branches more difficult.
27
In a parliamentary system, where the executive is the government, there is
overlap between executive and legislative functions.
28
In such systems, the
government is often constrained by the parliament (or, more concretely, by the
opposition) by means of oversight mechanisms, such as committees, hearings
and questioning.
29
This not only means limits and control but coordination and
joint action.
30
According to the Venice Commission, “parliaments must defend
their right to control governments and to have an active role in decision-
making.”
31
This is especially the case with controlling emergency measures, so
that the parliament should have power to control the declaration, continuation
21
Magill (n 15) 1174–75.
22
Baroš, Dufek, and Kosař (n 12) 139.
23
Randall Holcombe, 'Checks and Balances: Enforcing Constitutional Constraints' (2018) 6
Economies 7.
24
Kavanagh (n 13) 233.
25
Kavanagh (n 13) 236, emphasis in original.
26
Richard Albert, 'Presidential Values in Parliamentary Democracies' (2010) 8 International
Journal of Constitutional Law 221; Alan Greene, 'Parliamentary Sovereignty and the Locus
of Constituent Power in the United Kingdom' (2020) 18 International Journal of
Constitutional Law 1172.
27
Bruce Ackerman, 'The New Separation of Powers' (2000) 113 Harvard Law Review 658.
28
Friedberg and Hazan (n 11) 7; Albert (n 26) 221–22.
29
Riccardo Pelizzo and Rick Stapenhurst, 'Tools for Legislative Oversight: An Empirical
Investigation' in Rick Stapenhurst and others (eds) Legislative Oversight and Budgeting – A
World Perspective (Washington: WBI Development Studies, 2008) 9–13.
30
Kavanagh (n 13) 235.
31
Venice Commission (n 11) 8.
Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . . 221
and termination of the state of emergency.
32
This ensures control of the executive
in dealing with emergencies. However, it also secures the democratic legitimacy
of emergency measures, since parliament represents the people and has ultimate
norm-issuing power.
33
2.3 Declaring a State of Emergency
The declaration of a state of emergency is an important instrument, which should
be distinguished from the measures used during a state of emergency. It is a
common instrument in constitutions.
34
All such measures can (and should) be
used only once the declaration has been authorized and within the confines of
the state of emergency. This is crucial to limit the use of emergency measures
and distinguish between state of normality and emergency. Only after the
declaration has been authorized does the executive have the appropriate powers
available to deal with an emergency. Otherwise, emergency measures could
become a routine practice and develop into a political instrument to resolve
governmental impasses or further private interests in normal circumstances. As
the Venice Commission points out, routinization of the use of emergency powers
is a problem because it, inter alia, “weakens external checks on the Government
and disregards the principle of the separation of powers.”
35
For this reason,
requiring a declaration is not merely a formality, but central in regulating the use
of emergency measures.
36
Requiring a declaration regulates the use of emergency measures and limits
them to specific conditions. Instead of being able to use emergency measures in
normal circumstances, a state of emergency must be declared to ensure their
regulation. For example, constitutions with explicit emergency regulation will
often have a sunset clause, which regulates the continuation of the state of
emergency.
37
The declaration requirement means that emergency measures are
not available in normal circumstances. Otherwise, these powers, in the hands of
an executive that seeks to further their power at the expense of other branches,
would create a temptation to use them to maneuver around constraints and
32
Nicos Alivizatos and others, Respect for Democracy, Human Rights and the Rule of Law
during States of Emergency - Reflections, CDL-PI(2020)005rev (Strasbourg: Venice
Commission 2020) 18.
33
Alivizatos and others (n 32) 14; Gabriele De Angelis and Emellin De Oliveira, 'COVID-19
and the ‘State of Exception’: Assessing Institutional Resilience in Consolidated Democracies
– a Comparative Analysis of Italy and Portugal' (2021) 28 Democratization 5, Hoi Kong,
'Thresholds, Powers, and Accountability in the Emergencies Act' (2023) 46 Manitoba Law
Journal 46.
34
Mark Neocleous, ‘The Problem with Normality: Taking Exception to “Permanent
Emergency”’ (2006) 31 Alternatives: Global, Local, Political; Tom Ginsburg and Mila
Versteeg, 'The Bound Executive: Emergency Powers during the Pandemic' (2021) 19
International Journal of Constitutional Law 1506.
35
Venice Commission (n 11) 13.
36
Alivizatos and others, (n 5) 8.
37
Alivizatos and others (n 5) 17.
222 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
control.
38
For this reason, the declaration requirement helps to uphold the normal
situation from deteriorating by enabling routinization of emergency measures.
Declaring a state of emergency should not be a unilateral procedure, but the
separation of powers and the checks-and-balances principle should be relevant
to it.
39
When there is a system of parliamentary oversight the executive has to
articulate the reasons why such a declaration is necessary, and these reasons
should be evaluated by the parliament. Making governing an articulated process
and based on general principles is one of the basic principles of the rule of law,
as it protects against arbitrary power.
40
For this reason, both the declaration and
the use of emergency measures concerns the legislative branch.
41
As Nomi
Claire Lazar puts it, “the clearer the government’s statement of why they
reasonably believe emergency powers are necessary, the more accountable we
can hold them.”
42
This means that it is necessary to have parliamentary oversight
mechanisms in the context of declaring a state of emergency, so that the
government has to give reasons why they see it necessary, which makes the
declaration more transparent and the government more accountable.
3 Declaring a State of Emergency in the Finnish Constitutional
Context
3.1 Current Legislation
We will now analyse how the declaration of a state of emergency is regulated in
the Finnish constitutional context. We will focus on the Emergency Powers Act
(2011), as it is the most relevant part of the regulation regarding checks and
balances. We will briefly survey the background and the development of this
regulation and then move on to the relevant aspects of the executive and
legislative branch in the declaration procedure. In the context of checks and
balances, we focus on the role of the president, the cooperation of the two
executives, and the relationship between the executive and legislative branches.
We will discuss these three aspects respectively in separate sub-sections.
The Constitution of Finland regulates emergency situations from the
viewpoint of provisional exceptions to basic rights and liberties. According to
the Section 23(1) of the Constitution of Finland:
Such provisional exceptions to basic rights and liberties that are compatible with
Finland's international human rights obligations and that are deemed necessary in
38
Rose-Ackerman, Desierto, and Volosin (n 17) 249, 329.
39
Kim Lane Scheppele, 'Law in a Time of Emergency: States of Exception and the Temptations
of 9/11' (2004) 6 University of Pennsylvania Journal of Constitutional Law 1014; Ginsburg
and Versteeg (n 34) 1527.
40
Waldron (n 10) 457; Martin Krygier and Adam Winchester, 'Arbitrary Power and the Ideal
of the Rule of Law' in Christopher May and Adam Winchester (eds) Handbook on the Rule
of Law (Cheltenham: Edward Elgar Publishing 2018) 77.
41
Jamie Cameron and Robert Diab, 'Public Order Policing: A Proposal for a Charter-Compliant
Legislative Response' (2023) 46 Manitoba Law Journal 88.
42
Nomi Claire Lazar, 'What’s ‘Necessary’ Under the Emergencies Act?' (2023) 46 Manitoba
Law Journal 53.
Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . . 223
the case of an armed attack against Finland or in the event of other situations of
emergency, as provided by an Act, which pose a serious threat to the nation may be
provided by an Act or by a Government Decree to be issued on the basis of
authorization given in an Act for a special reason and subject to a precisely
circumscribed scope of application. The grounds for provisional exceptions shall be
laid down by an Act, however.
In addition, according to the Section 23(2) of the Constitution, “Government
Decrees concerning provisional exceptions shall without delay be submitted to
the Parliament for consideration. The Parliament may decide on the validity of
the Decrees”.
As Jonsson Cornell and Salminen consider, the Finnish Constitution leaves
open the competency to exercise emergency powers. The Constitution generally
provides that parliamentary law must regulate emergency powers. Within this
context, however, both the Parliament and the Government can enact exceptions
to basic rights. As regards the separation of powers, the Constitution does not
specify which State organ will have the power to consider whether an emergency
occurs nor to declare the emergency. It also does not separate the authority to
declare a state of emergency from the holding of emergency powers.
43
Furthermore, from the point of view of checks and balances, it can also be
noticed that the Constitution sets out rather abstract preconditions for a state of
emergency. The Constitution remains silent as to which institution can declare a
state of emergency and according to what procedure.
44
However, these issues are
further regulated in a parliamentary act called the Emergency Powers Act.
The Emergency Powers Act stipulates a three-phase deployment procedure.
According to this Act (Section 6), if the Government, in cooperation with the
President of the Republic, finds that there are exceptional circumstances (i.e., an
emergency), in which the ordinary competences of authorities are not enough, a
Government decree (Emergency Powers Act application decrees) may provide
for the application of the exceptional competences (provisions of Part II). Such
a decree may be issued for a limited period of up to six months. The Emergency
Powers Act application decrees must be submitted to Parliament immediately.
The Parliament decides whether the Government decree may remain in force or
whether it must be repealed in part or in full, and whether it is in force for a
specified or shorter period of time. If the Emergency Powers Act application
decree has not been submitted to Parliament within a week of its adoption, it
shall lapse. Thus, the three-phase procedure binds the Government, the President
of the Republic and the Parliament together in decision-making while the
Government and the President act together in declaring the emergency, after
which the Government issues an Emergency Powers Act application decree
which, in turn, will be submitted to the Parliament for its consideration. The
exceptional competences can be implemented only after the Parliament has
decided whether the decree may remain in force or not.
43
Anna Jonsson Cornel and Janne Salminen, ‘Emergency Laws in Comparative Constitutional
Law – The Case of Sweden and Finland’ (2008) 19 German Law Journal 219, 242.
44
Jonsson Cornell and Salminen (n 43) 219, 249.
224 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
3.2 Background of the Current Legislation
The current Emergency Powers Act dates from 2011.
45
In the context of checks
and balances, the current Act is not unique, as previous emergency powers
legislation had corresponding solutions, which required the cooperation of the
President, the Government and the Parliament.
46
In addition, another Finnish
emergency enactment, the Act on the State of Defence
47
, has a decree-based
mechanism to activate the state of defence. In the deployment procedure of that
particular act, a decree by the President of the Republic is used. However, unlike
the Act on the State of Defence, the Emergency Powers Act is essentially based
on decrees issued by the Government.
The current decision-making procedure on the introduction of the emergency
powers has not faced any major criticism in the practice of the Constitutional
Law Committee of the Parliament, which is charged with the review of the
constitutionality of parliamentary acts. In its evaluation, the arrangements have
usually been viewed from the point of safeguarding the influence of the central
state institutions in the decision making. The constitutionality of the various
procedural steps has not, as such, been an issue of its consideration.
It follows from the travaux préparatoires for this legislation that the main
argument for the role of the Parliament in the decision-making procedures was
the wide and rather general competences that are open for the executive to use
as emergency powers after the deployment procedure. While the competences
might be not that clear and precise, basically the decision-making is divided
between the Government and the President. Because a great deal of powers was
delegated to the President and the Government, the Parliament, in order to retain
some of its legislative prerogatives, was invested with the power to control the
decrees.
48
During the legislative procedure, the Constitutional Law Committee
of the Parliament considered such a deployment procedure to be necessary.
49
Regarding checks and balances, the regulation of the power to issue decrees
is connected to broader developments under the present Constitution of Finland.
Originally, in the revision of this legislation during the late 1990s, the President
of the Republic was granted powers to issue a decree for the deployment of
emergency powers.
50
In this context, for the existing 2011 Emergency Powers
Act, the key reform was related to the proposal to introduce powers under the
Emergency Powers Act by government decree instead of presidential decree.
This was, however, to be preceded by joint action by the Government and the
President of the Republic to assess and establish the emergency conditions. The
Act therefore both regulates the use of such decrees to a state of emergency and
limits their routinization and, therefore, strengthens parliamentarism.
45
Emergency Powers Act (1552/2011).
46
Emergency Powers Act (1080/1991).
47
Act on the State of Defence (1083/1991).
48
Government Bill HE 248/1989 vp.
49
Statement of the Constitutional Law Committee PeVL 11/1990 vp.
50
See Government Bill HE 186/1999 vp and the Statement of the Constitutional Law
Committee PeVL 1/2000 vp.
Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . . 225
However, it should be noted that this development was not unilinear progress
towards parliamentarism and legislative oversight. The Emergency Powers Act
also kept the President, whose powers over domestic issues were otherwise
almost completely removed, involved in the decision making. In addition, in the
bill regarding the current legislation, it was initially also proposed to waive the
Parliament's right of post-inspection regarding the decrees implementing the
emergency powers. The idea was that the control of the decrees would take place
in the administrative courts based on filed appeals.
51
However, the Constitutional
Law Committee of the Parliament objected to this proposal. The Committee
found it appropriate that the Parliament has the opportunity to verify the
appropriateness, necessity and proportionality of decrees issued under the
Emergency Powers Act immediately after their adoption.
52
3.3 Role of the President of the Republic?
The role of the President of the Republic in the Finnish constitutional setting has
changed during the last decades. These changes are also visible in the history of
the legal arrangements regarding the competences when using emergency
powers.
According to Section 6(1) of the Emergency Powers Act, the Government
must state, in cooperation with the President of the Republic, that there are
exceptional circumstances in the country prior to the adoption of the Emergency
Powers Act application decrees. In turn, such a decree is enacted by the
Government without the President. This is a new development, as no similar
procedure was included in the Emergency Powers Act of 1991, according to
which the Government could be authorized by a decree of the President of the
Republic to exercise the powers of the Emergency Powers Act “under
exceptional circumstances”.
The power to adopt the Emergency Powers Act application decrees was
transferred to the Government from the President when the new Emergency
Powers Act was passed. The main motivation behind this was that the
Emergency Powers Act is intended to be widely applicable to crises other than
military ones. The powers of the Emergency Powers Act are largely within the
competences of the Government. However, since there are likely to be foreign
policy dimensions behind the crises requiring the introduction of the Emergency
Powers Act, it was seen as important to ensure cooperation between the President
of the Republic and the Government in the assessment of emergency conditions
before the adoption of any Emergency Powers Act application decrees. The
emergency might have significance in terms of the activities of the Defence
Forces as well. These are the particular sections of the competences in which
close cooperation between Government and the President is relevant. In addition,
it has been considered that partitioning the cooperation between the Government
and the President according to the nature of various crises would disrupt the
clarity of the decision-making system. The need of the interpretation about the
possible foreign policy implications of the acute crisis would be difficult and
51
See Government Bill HE 3/2008 vp.
52
Statement of the Constitutional Law Committee PeVL 6/2009 vp.
226 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
could cause unnecessary tensions between the institutions. An emergency can
arise on grounds of many kinds of exceptional circumstances occurring
simultaneously, which could strain the decision-making system even more if that
system was not streamlined.
53
Upon the recent revision of the Emergency
Powers Act, the necessity of close cooperation between the President of the
Republic and the Government in establishing emergency conditions was
highlighted during parliamentary procedures.
54
3.4 Cooperation within the Executive When Declaring the State of
Exception and Procedure
As considered already, the Constitution as such does not state anything
concerning the actual declaration of the state of emergency. Furthermore,
regarding the procedure, the Emergency Powers Act or its travaux préparatoires
do not specify how the co-operation between the Government and the President
of the Republic is to be carried out in order to declare the state of emergency.
According to the statement of the Constitutional Law Committee, the form of
co-operation may vary according to the nature and urgency of the situation in
question.
55
Especially concerning emergencies which relate to foreign and
security policy, the most convenient manner to establish the cooperation
between the President and the Government is the decision-making at the joint
meeting of the Ministerial Committee on Foreign and Security Policy and the
President, which is the forum for joint decision making between them in foreign
affairs issues. In other emergency conditions, a more informal meeting between
the President and key ministers could be possible way to establish the
cooperation. Thus, the procedure, in order to achieve the joint understanding
about emergency conditions, can vary and is related to the nature of the
emergency.
The current legislation leaves open the question about the possible
disagreement inside the executive about the conditions of emergency. Needless
to say, however, is that the assessment about conditions for the emergency
requires considerable information about the circumstances and, in addition, an
assessment about the insufficient nature of regular powers of the authorities in
the situation, as well as the necessity of the additional powers in order to manage
the situation. In the Finnish context, it is ordinarily the responsibility of the
Government to make this kind of assessments. As such, the Emergency Powers
Act or its travaux préparatoires do not include a clear position in view of the
situation where the Government and the President of the Republic would
disagree on the existence of exceptional circumstances, nor does Section 58 of
the Constitution on presidential decision-making answer the question.
56
However, the wording of the Emergency Powers Act suggests that the view of
53
See the statement of the Constitutional Law Committee PeVL 6/2009 vp, also the Statement
of the Foreign Affairs Committee UaVL 4/2008 vp, and the Report of Defence Committee
PuVM 3/2010 vp.
54
The statement of the Defence Committee PuVM 2/2022 vp.
55
See the statement of the Constitutional Law Committee PeVL 6/2009 vp.
56
See also the Report of Defence Committee PuVM 2/2022 vp.
Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . . 227
the Government in the matter is decisive.
57
Our understanding is that cooperation
with the President is a formal requirement and an important part of the
preparation. While the role of the cooperation is from the point of Government
more or less consultative, it is important that in decision-making also the views
of the President are respected. In actual decision making it is most unlikely that
their respective opinions about the prevailing conditions would diverge.
Nevertheless, diverging opinions about the existence of the emergency
conditions are most likely to affect the position of the Government in front of
the Parliament. To elaborate, since during the next steps of the management of
the emergency according to the Emergency Powers Act the President has no
special powers at all, the added value of the declaration of the emergency in the
Finnish constellation is indeed in the participation of the executive through both
the Government and the President in this stage. Especially when the emergency
touches upon the foreign relations, as it very often can be the case, it is important
that the President has the possibility to express an opinion.
3.5 From Declaration of the Emergency to Operation - Role of the
Parliament
Once emergency is established, the Government can proceed to the adoption of
the so-called Emergency Powers Act application decrees. Thus, after the formal
consideration of the existing emergency, the Government has the possibility to
decide on such a decree. According to the Emergency Powers Act, this is the
only power which the Government has based on the declaration of the state of
emergency. As the very built-in idea of the state-of-emergency-related actions
within the state is that the regular powers are not enough, these decrees are
designed to complement them.
The system is built so that the additional powers only come into use through
the Emergency Powers Act application decrees. The Government has the power
to adopt them. Indeed, the system according to the Emergency Powers Act has
two subsequent decision-making moments which are very close to each other:
first the Government in cooperation with the President decides about the
emergency, and thereafter the Government adopts the Emergency Powers Act
application decrees.
As such, the declaration of the state of emergency has no immediate legal
consequences regarding the actual emergency measures to be adopted. However,
societally it may have huge importance. It sets the whole nation on alert. In every
case, declaring the state of emergency in a European country has a significant
political signal effect. Such a declaration is most certainly also noted in a
country’s foreign affairs.
As has already been mentioned in connection with the description of the
three-phase deployment procedure, under the Emergency Powers Act all the
Government’s application decrees are immediately delivered to the Parliament
for processing. The Parliament decides whether the decree may remain in force
or whether it must be repealed in part or in full and whether it is in force for a
specified or shorter period of time. If the application decree has not been
57
See also Governmental Statute about the Decision-making Section 3(22).
228 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
submitted to the Parliament within a week of its adoption, the decree will lapse.
Once the Parliament has made its decision, the decree can be applied to the extent
that the Parliament has not decided that it must be repealed.
Thus, the main rule concerning the application decrees under the Emergency
Powers Act allows the Parliament as the legislative power to check in detail the
powers the Government is planning to use during the emergency. Nevertheless,
it should be emphasised that the procedure of declaring the state of emergency
is currently based on the regulation contained in the Emergency Powers Act. The
Constitution does not require it, and an emergency can be established based on
a separate parliamentary act as well under Section 23 of the Constitution. Thus,
emergency conditions referred to in the Constitution can prevail in the country,
even without having been established under the Emergency Powers Act.
4 Discussion of Results
4.1 General Remarks
As pointed out above in section 2, the checks-and-balances principle demands
that possibilities for abusing power are prevented. Specifically, this means that
no branch of government becomes too powerful or acts unilaterally, and that its
tasks are interdependently organized and relevant mechanisms of control and
oversight are established. In the context of emergency measures, we established
that it is important that the use of emergency powers is preceded by a formal
declaration. This is relevant so that using emergency measures can be regulated
and the executive’s plan to enact extraordinary decrees checked. Furthermore,
requiring a declaration means to ensure that emergency measures are not
routinized. This is in line with the checks-and-balances principle, as such
routinization might lead to the executive overpowering the other branches.
Having analysed the regulation of declaring a state of emergency in the
Finnish Constitutional context, we will, based on our theoretical discussion
above, now establish evaluative comments regarding that regulation’s status
from the point of view of checks and balances. After general remarks regarding
the Finnish Constitutional context, we move on to discuss concrete examples
from the COVID-19 pandemic. Experiences from the first-time responses to
emergencies based on the Emergency Powers Act are to be collected and
evaluated for the future development of legislation.
As we pointed out above, the checks-and-balances principle demands that
different branches of government remain both independent and interdependent.
While it is important that the branches of government are independent, to ensure
genuine capacity to check and oversee one another, there should also be genuine
overlap between functions. In the Finnish context, the fact that the Government
is the chief executive in charge of emergency measures rather than the President,
whose tasks in general are limited to foreign policy, ensures that there is genuine
overlap between the executive and the legislative branches.
In investing the Parliament with control over the emergency decrees,
interdependence of the executive and the legislative branches is strengthened.
When the Government submits its decrees to the Parliament for review, it must
make public the reasons why regular powers are not enough. It is these
explicated reasons that the Parliament can reflect upon, in addition to any
Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . . 229
constitutional and rule-of-law concerns it may have, when assessing decisions
regarding specific decrees and whether they are proportional to their aim. This
control therefore ensures that the legislative branch is relevant in making the
executive accountable.
It is an interesting aspect of the Finnish emergency powers regulation that
both executives, the President of the Republic and the Government, have a role
in declaring the state of emergency. This arrangement is of semi-presidential
nature, in the sense that the executive branch is further divided into two
institutions.
58
Nevertheless, the Government has the decisive role here. As
mentioned above, the separation of powers does not necessarily mean a strict
distinction between branches and tasks among institutions but, rather, the sharing
of a task among institutions can bolster control within a branch of government.
This type of intra-branch-control
59
can be seen as further making the government
interdependent and therefore less prone to abusing emergency measures.
However, there are relevant worries regarding this arrangement. Scholars
have pointed out that dividing the executive implies ambiguity and potential
conflict within the executive branch.
60
Such problems ensue in cases where the
president either takes a very active role and pressures the government into
declaring a state of emergency, or when the president is hesitant and stalls the
declaration (at least in situations where such action is required, thus leading to
executive underreach
61
). While, in Finland, the involvement of the President in
declaring the state of emergency was originally meant to underline that
emergencies often imply foreign policy concerns, it is also the case that including
the President means that the President is given, under the guise of foreign policy
implications, domestic power – something that is (somewhat) antithetical to the
Finnish principles of parliamentarism.
62
Another issue is that neither the Constitution nor the Emergency Powers Act
explicitly regulates the termination of the state of emergency. During the
pandemic, the Government decided on the matter. While the Parliament has the
power to decide whether an emergency decree may remain in force, from the
perspective of the checks-and-balances principle it is an issue that both the
declaration and termination are up to the executive. The legislative branch
should have a say when the emergency is overcome and emergency measures
are no longer needed.
63
Whereas the temporality of the emergency decrees is
clear, the fact that terminating the state of emergency itself is unregulated implies
serious issues, such as the possibility that the state of emergency becomes
58
C Skach, ‘The “Newest” Separation of Powers: Semipresidentialism’ (2007) 5 International
Journal of Constitutional Law 96-97.
59
Andreas von Arnauld, ‘Gewaltenteilung Jenseits Der Gewaltentrennung. Das
Gewaltenteilige System in Der Verfassungsordnung Der Bundesrepublik Deutschland’
(2001) 32 Zeitschrift für Parlamentsfragen 686.
60
Skach (n 58) 96; Tapio Raunio, ‘Semi-Presidentialism and European Integration: Lessons
from Finland for Constitutional Design’ (2012) 19 Journal of European Public Policy 569.
61
David E Pozen and Kim Lane Scheppele, ’Executive Underreach, in Pandemics and
Otherwise’ (2020) 114 American Journal of International Law.
62
Jaakko Nousiainen, ‘From Semi-Presidentialism to Parliamentary Government: Political and
Constitutional Developments in Finland’ (2001) 24 Scandinavian Political Studies 105.
63
Alivizatos and others (n 5), 18.
230 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
“normalized.”
64
By normalization in this context, scholars refer to the possibility
that the state of emergency is continued indefinitely.
65
In order to counter this
possibility, the parliament should have an active role in deciding whether an
emergency is still at hand.
4.2 COVID-19 Pandemic - Emergency Experiences
During the COVID-19-pandemic emergency was established twice. The
Government, in cooperation with the President, stated that Finland is under
emergency conditions due to the epidemic and decided to adopt the powers laid
out by the Emergency Powers Act on 13 March 2020. On 15 June 2020, the
Government issued a decree repealing the use of the powers of the Emergency
Powers Act and stated that the current situation in the country no longer
constituted a state of emergency. Later, at the end of February 2021, a state of
emergency was declared again due to the epidemic. The state of emergency
entered into force on 1 March 2021. On 27 April 2021, the Government issued
a decree repealing the use of the powers of the Emergency Powers Act. The
government declared the first state of emergency on two accounts, as a health
emergency and as an economic one. However, the issued decrees only concerned
the health emergency.
66
It seems that the Government declared an economic
emergency just in case it would later need to issue decrees later during the
pandemic. For this reason, Martin Scheinin notes that it is an issue that the
declaration itself is not reviewed but only the decrees issued after it.
67
During the pandemic, the role of the Parliament was highlighted in overseeing
the Government and in assessing the proportionality and constitutionality of the
issued decrees. The parliamentary Constitutional Law Committee has
throughout the pandemic been active in requiring the government to disclose
relevant information. It has required changes and amendments in governmental
decrees regulating emergency.
68
In this context, the Committee has criticized the
Government for inadequate justifications.
69
Without relevant information and
justifications, the Parliament’s capacity to check and hold the Government
accountable would be severely hindered. The activity of the Committee,
therefore, can be interpreted as taking action to defend the right of the Parliament
64
Antonios Kouroutakis and Sofia Ranchordas, ‘Snoozing Democracy: Sunset Clauses, De-
Juridification, and Emergencies’ (2016) 25 Minnesota Journal of International Law 76.
65
Bruce Ackerman, ‘The Emergency Constitution’ (2020) Journal of Constitutional Law 26.
66
Report of the Constitutional Law Committee 2/2020 vp.
67
Martin Scheinin, ‘Finland’s Success in Combatting COVID-19’ in Joelle Grogan and Alice
Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge 2022)
133.
68
Tuukka Brunila, Janne Salminen and Mikko Värttö, ‘Oikeuden resilienssi poikkeuksellisissa
oloissa – Perustuslakivaliokunnan rooli oikeuden ylläpitämisessä covid-19-pandemian
aikana’ (2023) Lakimies 1026.
69
Report of the Costitutional Law Committee PeVM 13/2020; Mikko Värttö, ‘Parliamentary
Oversight of Emergency Measures and Policies: A Safeguard of Democracy during a Crisis?’
(2023) European Policy Analysis 10.
Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . . 231
to control the Government and uphold the checks-and-balances principle.
70
However, the Finnish system of checks and balances is not completely in line
with the standard tri-partite separation of powers as both constitutional review
primarily and the control of emergency measures is mainly done by the
Parliament. The Finnish courts have not been involved in the declaration of
emergency measures,
71
and probably will not be in the future either, as the
Finnish legal tradition regarding constitutional review heavily relies on the views
of the Constitutional Law Committee.
72
One problem during the COVID-19 was that sometimes the government did
not use decrees to enact emergency powers but used something akin to extra-
legal power. This was possible by means of not exerting actual power based on
the Constitution at all, but by means various governmental instructions and
political guidelines, which were considered as if they were legally binding by
individuals and partly followed by the administration as well.
73
This caused
problems as fundamental rights too were limited based on these kinds of legally
non-binding sources, which were initially meant only as recommendations.
74
Many administrative recommendations and instructions were followed closely
as if they were legally binding rules. This phenomenon demonstrates the power
of the declaration of the state of emergency for the behaviour of individuals. For
this reason, the declaration itself should be legislatively overseen by the
Parliament.
In the context of the president’s role in declaring the state of emergency, the
problem of active president discussed in the last sub-section became apparent
during the pandemic. According to some reports, on 13 March 2020 during the
joint meeting of the Ministerial Committee on Foreign and Security Policy and
Security Policy and the President, the President stated that Finland was in a state
of emergency.
75
This came as a surprise to the Government, as it had not planned
on discussing the pandemic or declaring an emergency during the meeting.
76
However, while this meeting did not yet lead to declaring the state of exception,
some argued that basically the Government had no other choice,
77
with one of
70
Venice Commission (n 11) 8.
71
Janne Salminen, ‘Finsk krishantering i fredstid — Beredskapslagen Tillämpas För Första
Gången’ (2020) Svensk Juristtidning 1128.
72
Lavapuro, Ojanen & Scheinin (n 7) 510, 517, 529.
73
Emilia Korkea-Aho and Martin Scheinin, ‘“Could You, Would You, Should You?”
Regulating Cross-Border Travel Through COVID-19 Soft Law in Finland’ (2021) 12
European Journal of Risk Regulation.
74
See for example decisions of legal oversees, e.g. Parliamentary Ombudsman 7.9.2020,
EOAK/2889/2020 and also Chancellor of Justice decisions OKV/905/1/2020,
OKV/733/1/2020, OKV/552/1/2020. See also Mehrnoosh Farzamfar and Janne Salminen,
‘The Supervision of Legality by the Finnish Parliamentary Ombudsman during the COVID-
19 Pandemic’ (2022), 99 Nordisk Administrativt Tidskrift.
75
Onnettomuustutkintakeskus, Koronaepidemian ensimmäinen vaihe Suomessa vuonna 2020
(2020) 20; Risto Uimonen, Sauli Niinistö: suomalaisten presidentti (Werner Söderström
Osakeyhtiö 2023) 359.
76
Martti Mörttinen, Valtioneuvoston Ydin Kriisitilanteissa: Covid-19-Pandemian Paineet
Suomalaiselle Päätöksenteolle (Sitra 2021) 26.
77
Uimonen (n 75) 359.
232 Tuukka Brunila and Janne Salminen: “Regular Powers are No Longer Enough” . . .
the biggest newspapers claiming that the president “bulldozed the state of
emergency into effect.”
78
While statements like these might exaggerate the issue,
the case still points towards the worries we have outlined above regarding the
relationship within the executive. A president with a strong political mandate
can influence the government by means of his role in the phases of declaring a
state of emergency.
After the meeting, the Prime Minister was unsure as to how to declare the
state of emergency in cooperation the President of the Republic. As we pointed
out above, the process is flexible, as it is not determined how cooperation
between the two executives is established. Ultimately, the Prime Minister
decided to consolidate the cooperation with a phone-call rather than call together
a joint meeting.
79
To be sure, both the President, in trying to compel the
Government, and the Prime Minister, in establishing cooperation, might have
had good reasons to think that swift action was needed and that there was no
time for further discussion. However, we want to emphasize that the powers of
the Government and the President of the Republic, as well as the conditions for
decision-making in general should be clarified. It is especially cases like these
that remind us that decision-making procedures should be made clear and
consistent. In Finland, the current Emergency Powers Act provides the
Parliament with an important role in scrutinising the application decrees which
the Government issues based on the declaration of the state of exception. Thus,
there is a strong checks-and-balances element right after the state of emergency
is declared by the executive and the possibility for strong legislative oversight of
the situation and the decision-making process. These application decrees cover
the information about the particular competences Government is planning to take
into use. This right of the Parliament is based on the parliamentary act. In
addition, Section 23 of the Constitution provides that the actual decrees will be
scrutinised by the Parliament, meaning that currently there is a double lock and
a strong role for the Parliament.
80
78
Timo Haapala ’Setä Arkadia: Presidentti Niinistö jyräsi poikkeuslait voimaan’, 21.03.2020,
Iltalehti https://www.is.fi/politiikka/art-2000006447204.html.
79
Mörttinen (n 76) 26.
80
However, taking into consideration the Finnish current tradition with majority governments,
the Government probably can rely on the trust in Parliament in such a situation, especially in
the beginning of an emergency. From the constitutional point view this is somewhat balanced
through the Constitutional Law Committee within the Parliament.
