1 The à land Self-Governmentâs Basic Purpose
The first à land Autonomy Act was prepared in a very short space of time with the aim of guaranteeing the à land population its Swedish language, culture and local customs under Finnish sovereignty. The law entered into force in 1921 after the League of Nationsâ decision to approve the nationality guarantees that Sweden and Finland agreed upon in the à land Agreement. These guarantees under international law were confirmed in the à land Protocol in connection with the accession of Finland and à land to the EU.
The original purpose of the autonomy still applies today and constitutes an interpretative directive for relevant authorities, including the Finnish Supreme Court and the President of the Republic, and can be found in the preparatory works to § 1 of the present Autonomy Act: âWhen interpreting the basic statutes on self-government, e.g., the stipulations that intend to preserve the language and culture, the [à landsöverenskommelsen]1 forms the starting point.â
2 An Asymmetric Legislative Control System
After a law has been passed by the AÌland Parliament,2 but before it can enter into force, it is submitted to a process of legislative control, where the main bodies are the President of Finland, the Finnish Supreme Court, the AÌland Delegation3 and the Finnish Ministry of Justice. There is no corresponding control of laws passed by the Finnish Parliament.
The primary purpose of the control is to ensure that new legislation does not infringe on the Finnish Parliamentâs areas of competence. In recent decades, this control of AÌland laws has been extended to include the legislationâs relationship to the Finnish Constitution and to EU legislation. The legislative control is also, to a certain degree, affected by considerations by the Finnish Parliamentâs Constitutional Committee when considering if a corresponding Finnish law is compliant to the constitution. These interpretations tend to be a source of law also in the control of à land laws. In certain cases, the process of control has been widened from the strict examination of areas of competence to include the AÌland legislationâs goals and material contents. During the past two decades, this has resulted in an increase in the number of AÌland laws and individual regulations that have been blocked by the legislative control with reference to EU legislation and the Finnish Constitution. In many rejected cases the legal norm is enacted technically on the wrong level. The constitution requires that all material regulations affecting human rights must be enacted by law and not by any ordinance, decision, or other lower norm.4
The legislative control of Finnish laws is vested with the Constitutional Committee, a political body, before they are finally passed by parliament, thus creating an asymmetrical constitutional control depending on which jurisdiction is concerned.5 The Supreme Court, as constitutional court, is not involved in the control process of Finnish laws. The general principle of legal review, where a judicial body applying a legal norm is required to assess if it is in accordance with a legal norm of systematically higher level, applies to both Finnish and à land laws.
3 The Legislative Control in Some Other European Autonomies
A system of legislative control similar to à landâs does not exist in most comparable European autonomies.6 However, in the British autonomies a ratification by the head of state is required before legislation can enter into force. This is more a routine formality than a fundamental constitutional control. Regarding the Faroe Islands, South Tyrol and the Basque Country, there is no formal review prior to the entering into force of laws that the autonomous parliament has passed. However, it is possible to submit the autonomiesâ legislation to a form of constitutional review in retrospect, but this is only done if a competent party has pronounced their dissatisfaction with the law. This sort of retrospective review can lead to a law being repealed.
The federal characteristics of the Belgian state formation mean that Flanders differs in this respect in relation to AÌland and to other European autonomies. Belgian regulations demand a constitutional review of all legislation, both at the level of the federal state and that of the autonomous Flanders.
4 The Constitutional Control System and Its Main Actors
The President of Finland has the right to reject an à land law within four months after it has been passed by the Parliament on two grounds; either if it isnât within the legal competence of à land, or if it âendangers the security of the stateâ. If a rejection is considered, the Supreme Court is required to give a legal opinion on the constitutionality of the law. The à land Delegation submits a legal opinion on every passed law. The Finnish Ministry of Justice is responsible for the administration of the process.
The à land Delegation shall always give its legal opinion on the constitutionality of the law in question according to the Autonomy Act. If the legislation is new, involves mixed competences, or if there are dissenting opinions in the à land Delegation, an opinion is asked of the Supreme Court. The president usually follows the opinion of the Supreme Court but in the end, it is up to his or her own discretion.
When it comes to the second ground for rejecting a law, âendangers the security of the stateâ, this is more of a political issue that rests with the president. This provision has been used once, concerning the flag of à land. According to the president, the first proposals resembled the Swedish flag, and thus it was not until 1954 that the à land Flag law was approved.
The à land Delegation, the only body in the review process with à land representation, is a mediatory organ between the autonomy and the state. The Finnish Government and the à land Parliament appoint two members each. The Governor of à land, appointed by the president in agreement with the Speaker of the Parliament, serves as the chairman. The delegationâs main tasks today are to give legal opinion on every passed à land law, adjudicate in matters of special state monetary contributions, and act as a mediator between the Helsinki and à land administrations.
5 Development of the Control System
The practical design of the constitutional control of the à land regional laws has undergone relatively large changes since the 1920 Autonomy Act was enacted. According to the first Autonomy Act, the Supreme Court was to give its opinion before the President of the Republic could reject an à land law, either because it infringes on the competence of the Finnish Parliament or because the president considered the law to endanger âthe public interest of the Republicâ. The ministry most closely involved was responsible for preparing and reporting the case to the president.
The à land Delegation had no formal role in the process of legislative control in the first Autonomy Act. The delegationâs responsibility primarily concerned the financial relations between the autonomy and the state power. The two-party à land Delegation was nevertheless heard to varying degrees due to its generally recognized status as an expert body on à land issues.
In practice, the first Autonomy Act gave the Supreme Court interpretative priority regarding the concrete delimitation of the autonomyâs legal â and thus also, by extension of this practice, political â authority in relation to the prevailing Autonomy Act. The praxis of the Supreme Court was more or less directly codified into the enumeration lists of legislative competence in the 1951 Act, and prevail in the present Autonomy Act.
The Supreme Courtâs role has not changed in the following two autonomy acts. In practice, however, the opinion of the Supreme Court is only requested in some cases, mainly if the à land Delegation considers a law to be problematic, if the à land Delegationâs decision is not unanimous, or if the Ministry of Justice otherwise considers that the Supreme Court needs to be involved in the control.
As the structure of the distribution of legislative authority was changed in the Autonomy Act of 1951 to an enumeration of the respective legislatureâs authority, the law reviewersâ criteria for the constitutional control were also changed. The main issue requiring assessment was whether an à land law belongs to a legal area that falls under the competence of the Finnish Parliament or of the à land Parliament, though completely new legal areas would be assessed according to the basic principles in the respective catalogue of competences.
According to the 1951 Autonomy Act, the president could also veto a law affecting Finlandâs âinternal or external securityâ, replacing the previous wording âendangers the security of the stateâ. This acted as a kind of safety valve if an à land law endangered vital state interests.
In the Autonomy Act of 1991, the structure was maintained with an enumeration of the competences of the respective parliaments. The major change in the law review process was the possibility for the president to disapprove only a limited part (paragraph, section) of the à land law in question. In 2004, the Autonomy Act was also amended so that budget laws can now enter into force immediately, and the control of them is exercised after their entry into force. The 1991 Autonomy Act added to and clarified the competence lists somewhat, and a few areas were added to the à land list. Maybe, the most important clarification was that the Autonomy Act expressly requires that an individual should have knowledge of the Swedish language in order to acquire à land hembygdsrätt.7 The new Finnish Constitution (year 2000) has, however, indirectly affected the work of the relevant audit bodies.
As of Finlandâs and à landâs entry to the EU, the legislative control was extended to include an examination of whether an à land law potentially conflicts with EU legislation. Since the à land Delegation was not considered to have the necessary EU competence, the delegation requests as a rule an opinion from the EU-unit at the Ministry of Justice before delivering their opinion.
6 Strict Interpretation Practice
The legislative control by the Supreme Court and the president during the first decades of autonomy was characterised by a clear focus on ensuring that the à land legislation would in no way infringe on the Finnish Parliamentâs areas of authority. This was achieved not least through a relatively restrictive interpretation of the many still relatively open, and therefore also âinterpretableâ, provisions in the first Autonomy Act.
During the lifetime of the second Autonomy Act, a total of 1,445 à land laws were processed by the president, of which 74 (5 percent) were rejected. This is a considerably lower percentage of failed laws than during the first Autonomy Act, when almost a fifth of the autonomyâs laws were rejected by the president.8 The significantly improved approval frequency indicates that the interpretation of authority and legal control under the second Autonomy Act has been stabilised because of the practice developed during the considerably more turbulent period of the first Autonomy Act. The introduction of an à land and Finland âcompetence catalogueâ probably made the legislative process easier for the legislators as well as for the legislative control.
The Supreme Court has set a steady interpretation practice, and the à land Delegation very seldom challenges its opinions. In some principal matters, such as taxation rights, individual members have submitted dissenting opinion but generally the à land Delegation toes the line. This has led to a greater stability and predictability in the à land legislative process, albeit with a reduced level of the factual self-government than was originally intended.
The Supreme Courtâs own view of the control shows a continuation of the strict lexical interpretation under current law: âan objective interpretation of the law and thus of the fact that the autonomyâs concrete content at any time corresponds to the lawâ.9 The Supreme Court apparently refers to the legislator to clarify the wordings in the Autonomy Act that a literal exemption from the provisions in the Finnish Constitution exists in order to support an interpretation based on the purpose of the autonomy.
In summary, it can be stated that the restrictive interpretation of authority that the Supreme Court and the president introduced during the 1920s and 1930s was formalised and consolidated in the second and the present autonomy acts. The Supreme Court has in all important respects been allowed to keep a restrictive view of the legal limits of the autonomy.
7 EU Membership and a New Finnish Constitution
à landâs and Finlandâs EU membership has provided a new reason for rejection. This has resulted in the rejection of several à land laws that, contrary to the view of the à land Parliament, were in (obvious) conflict with EU legislation and, therefore, fell outside the autonomyâs legislative authority. This practice is questionable from the à land point of view as it is up to the European Court of Justice to deem if a national law is compatible with Union legislation or not.10
A significant reason for the rejection of these laws is the strengthened role that the Finnish Parliamentâs Constitutional Committee received in the new Finnish Constitution. The committee is expressly responsible for considering if a proposed bill (from the Finnish Government) is in accordance with the constitution. These considerations have become a legal source for the judiciary system. The fact that the Supreme Court has adopted a relatively broad interpretation of the constitutionâs limiting effects on similar Finnish laws has generally allowed the new constitution to take precedence over the Autonomy Act and has thus led to the rejection of several à land laws. It would seem as if an express exemption is required in order to give the Autonomy Act precedence.
As mentioned, more than half of the passed laws, 31 in total, during the present Autonomy Act have been rejected with reference to the Finnish Constitution, in some cases also in combination with other reasons. This can be compared to a total of two rejected laws with the same reasoning during the first Autonomy Act, and three during the second.11
Otherwise, the total number of rejections has decreased over the years, from one fifth during the first Autonomy Act to 5â6 percent during the second and the present acts. This is a sharp reduction in both number and proportion, which indicates that the division into jurisdictional areas in the present Autonomy Act has been easier to interpret for the à land Parliament. It is also possible that the development of technology has made it easier for the legislative process to stay up to date on changes in Finnish legislation, which must be considered when drafting à land laws, as such changes have a great impact on the constitutional control.
Here, however, is also a very interesting case on the Law on order for the à land Parliament from 2011, where the Parliamentâs proposal to adopt a statute citing the bill to the first Autonomy Act âThe population organises its existence according to its own wishes and as freely as possible for a province that does not constitute its own stateâ â a clear marking of the Supreme Courtâs role as guardian of the âcriticalâ borders for the à landâs autonomy.12
The previously dominant reasons for rejection, âprovisions of a national legislative nature that deviate from the national legislationâ and âinfringement on the national area of competenceâ, now only account for a quarter of all rejections.
Finally, it is worth mentioning that no law has been rejected with reference to the internal or external security of Finland during the present Autonomy Act, and that the president has gone against the Supreme Courtâs statement in only a single case.
8 Consequences of the New Finnish Constitution
The new constitution has influenced the process of legislative review to a much greater degree than the old one. Of particular interest is the catalogue of rights that was already included in 1995 as a result of Finlandâs ratification of the European Convention, but also other parts. Over half of the à land laws passed between 1993 and 2018 have been rejected with reference to the Finnish Constitution.
This interpretative practice has restricted the ability of the à land Parliament to develop its own jurisdiction under the authority given in the Autonomy Act. Legal definitions, concepts to regulate certain phenomena in society, and other legal âinventionsâ are rejected in most cases. This is done without regard to the fact that the Autonomy Act and the Finnish Constitution are systematically on the same level, and one would think it would be up to the Parliament to freely formulate the underlying level of legislation, i.e., the material law. Inter alia, the provision of âstandardisationâ, which belongs to Finnish competence, is frequently used as grounds for rejection, also impinging on areas otherwise belonging to the Parliament.
Most people seem to agree that the self-government should not infringe too much on the individualâs rights and freedoms as defined in the Finnish Constitution. Legislative control thus fulfils an important function from that point of view. But the constitution also contains a number of other provisions, and there may be reason to consider whether there are parts of the constitution that expressly should not apply to the Autonomy Act.
The most obvious case in this regard is the question of the voting age in 2017.13 The à land Parliament wanted to lower the voting age and thus expand the group entitled to vote. It was therefore not about limiting the rights protected by the constitution, but, on the contrary, about expanding them. The Supreme Court interpreted the right to vote as a fundamental right, thus under Finnish authority, and that the à land Parliament had no right to deviate to 16 years. In contrast, the Parliament considered the provision in the Autonomy Act, stating that election to the Parliament and municipality councils is under à land competence, which also includes the voting age.14
Another noteworthy case concerns the law on the right to run a business on à land.15 The Autonomy Act requires that an individual or member of the board has à land citizenship or has been domiciled in à land for five years. In connection with a reform of the business law, the à land Parliament expressly stated that all services and information to consumers must be in Swedish. The Supreme Court rejected the law, referring to the individualâs fundamental rights as belonging to Finnish authority, but not considering the very fundamentals of the autonomy as decided in Geneva in 1921 and reiterated in 1994 in the accession protocol to the EU.
This updated law was passed by the à land Parliament 25 April 2022. The purpose, as described in the preparatory works, was to make it easier to establish a business, to make the monitoring of newly established businesses more effective, and to codify established practice for 30 years. Moreover, the Parliament aspired to adjust the business law to suit the new Finnish Constitution and the Constitutional Committeeâs interpretation of the same, i.e. that any restrictions on individualâs freedom of movement and freedom of business must be written into law.
The updated language requirements were central to the law reform against the background of the strict interpretation praxis of the legislative control. The Parliament refers to the basic provisions to guarantee the Swedish language, culture, and local customs of the à land population, which can be found in the Geneva Decision of 1921, the à land Agreement of 1921 and the à land Protocol of 1994 to the Finnish accession treaty to the EU. The latter stipulates that the (nationality protection) provisions guaranteed by international law form part of the primary EU law and are not affected by Union legislation.
However, the president decided that certain provisions of the law would not come into force, mainly the updated language requirements. In its statement, the Supreme Court rejected the Business Law Act with reference to, among other things, the fact that the following provisions âare in manifest conflict with Union lawâ, namely: that everyone has the right to be served in Swedish, and that essential and necessary information about goods or services must be in Swedish. According to the Supreme Court, the provisions constitute an extension of the language regulations that applied at the time of EU entry and are thus in violation of the âstand stillâ principle within Union law. The Supreme Court therefore considered that the à land law constituted a form of âbreach of treatyâ in relation to the Union law. According to the Supreme Courtâs practice, a breach of treaty applies to the ârelationship with foreign powersâ (here interpreted as the EU) and is thus under Finnish jurisdiction according to § 27 subsection 2. Self-Government Act.
9 Conclusion
The strong constitutional and international âfortificationâ of the à land autonomy is two-fold. On the one hand, the strict legal tradition protects the rights of the people of à land, and on the other hand, it tends to obstruct, through the process of constitutional control, the necessary development of the autonomy. A negative political attitude to the Swedish language in general, and especially to unilingual à land in the Finnish Parliament, cannot change the Autonomy Act without the consent of the à land Parliament.
The constitutional control system is reliable and predictable but cannot easily adjust to changes in local or international society. To enable this, the Autonomy Act must be revised by mutually equal decisions in the Finnish and à land parliaments. As a constitutional law in Finland, any revision to the Autonomy Act requires a qualified majority in two consecutive parliaments, with an election in between. A qualified majority in the à land Parliament consenting to the revised Autonomy Act is also needed. It goes without saying that this is a long and complicated process, with many years of preparatory work before a bill can be presented to the parliaments by the Finnish Government. In addition, the process is vulnerable to possible changes in the political landscape.
Moreover, many experts underline the fact that the à land people enjoy strong legal protection for their Swedish language, culture, and local traditions. However, as we have seen, the material application/protection laws, based on decisions that are more than 100 years old, have been questioned as not compliant with todayâs human rights. So far, they have prevailed but any attempt to update the material legislation has been rejected in the constitutional control, as such changes must be realised in the Autonomy Act.
Another problem is the limited legal authority of the autonomy. Thus, important legislative areas, such as company law, banking, and insurance legislation, contract and labour market legislation, regulations governing technical standards, professional certification, the judiciary system and, to a greater degree, taxation, are vested with the state. The catalogue of legislative competence vested with the à land Parliament is quite limited, as the restrictive practice in the constitutional system has been codified in the two revisions of the Autonomy Act and has increased since the new Finnish Constitution came into force.
The number of rejections of à land laws will most likely decrease as the controlling bodies and the law-drafting unit of the à land Government adjust to the current restrictive practice of the Supreme Court. A further consequence of this development, which has been more apparent during the last twenty years, is the adjustment of à land laws to the corresponding Finnish material laws. So, although à land has the power to enact legislation customised to its own needs and circumstances, the à land Government chooses to compromise in order to minimise upcoming problems in the constitutional control. Only seldomly does the law-drafting unit challenge the existent practice, and more frequently uses âform legislationâ, i.e., when a Finnish law is more or less copied and passed as an à land law. In this way, interpretation problems with regard to split legislative competence and the mixed interaction between two jurisdictions, can be avoided.
à landâs autonomy thus delivers less de facto scope for action than what it de jure promises. This is underlined by the fact that à land is dependent on the Finnish Governmentâs and the Finnish Parliamentâs priorities in revising or amending the current Autonomy Act; on the Finnish stateâs desire and ability to provide information about state legislation that is of great importance to AÌland; on the Finnish stateâs handling of AÌlandâs wishes in the implementation of EU legislation and in the preparation of Finlandâs EU positions, and in treaty negotiations where à land legislative competence is involved.
The overall conclusion is therefore that the autonomyâs greatest structural failing is its lack of competence within several legal and political areas important for societal development; and not least the regulation of the more fundamental conditions for economy, trade and labour markets that are so central for societal development. AÌlandâs limited legal competence and scope for action within these political areas also, in the long run, undermines what has always been seen as the core of the AÌland autonomy model, i.e., the protection of the archipelagoâs Swedish culture and linguistic identity.
The overall picture of the autonomyâs status that has emerged during the last 100 years clarifies the need to move the focal point of the autonomy from reactionary monitoring of the status quo to a more proactively aligned expansion of AÌlandâs legal and political scope for action â a development toward the type of autonomy models seen in several comparable autonomies with significantly broader legal and political competence.
The asymmetrical partnership, with its one-sided competence control that is based on the stateâs priorities and needs, must be replaced with a more equal partnership between autonomy and state. This is difficult to achieve within the framework of the current Autonomy Act and the practice that has been created by the AÌland autonomy model.
However, this does not mean that there is no room for improvement, e.g., concerning the exchange of information and engagement from both parties in a more active partnership.
à landsöverenskommelsen is the agreement between Sweden and Finland on the à landersâ nationality guarantees, which the League of Nations adopted as an integral part of the sovereignty decision in 1921.
The à land Lagting is the à land Parliament.
See below.
Ida Jansson, 2020:1 Att sätta självstyrelsens gränser, (Olof M Janssons Stiftelse, Mariehamn 2020) p. 178.
Markku Suksi, Lagstiftningskontroll och rättsskipning i autonomier â jämförande perspektiv pÃ¥ domstolsorganisationen i självstyrande omrÃ¥den, 2015:1 Tidskrift för Juridiska Föreningen i Finland (à bo Akademi, 2020) pp. 27â55.
Ibid. Bjarne Lindström, 2020:2 De legala förutsättningarna för Europas autonomier, En jämförande studie. (Olof M Janssons stiftelse, Mariehamn 2020).
à land citizenship, which on top of Finnish citizenship enables the bearer to vote, own real estate, and to run a business. Autonomy Act (à FS 1144/1991).
During Autonomy Act (AA) 1, between 1922â1951, SUPREME COURT (SC) rejected 21.5 percent of à land laws, during AA 2, 1952â1991, SC rejected 6 percent, and during the present AA 3, 1992â2018, SC rejected 5.1 percent. Ida Jansson, 2020:1 Att sätta självstyrelsens gränser, (Olof M Janssons Stiftelse, Mariehamn 2020).
Ibid. p. 178.
The process of control with regard to EU legislation has been included by the Supreme Court, rather than it being based on regulations in the Autonomy Act.
Supra note 8.
RP 24/1919; Tulenheimokommittén (1919), Förarbetena till 1920 och 1951 års självstyrelselagar Del II. Opublicerad stencil utgiven av à lands landskapsarkiv, s 1.
Ida Jansson, 2020:1 Att sätta självstyrelsens gränser, (Olof M Janssons Stiftelse, Mariehamn 2020) pp. 137â138.
à landsdelegationen, XIII Serien, pp. 311â313.
KKO-HD/1919/2022.