In Finland, which shares a border of more than 800 miles with its much larger neighbor, Russia, national security has always been a high priority. Central elements of this national security have included maintaining a strong defense capability while avoiding the provocation of Russia.
Russia’s attack on Ukraine in February 2022 changed the security context. As a consequence, in May 2022 Finland applied for membership of NATO, as did its Nordic neighbor Sweden.
In another historical change, Finland broke with its policy of not exporting weapons to countries at war and has repeatedly sent arms to Ukraine, including heavy artillery and munitions. Most recently, Finland also agreed to send Leopard tanks to Ukraine.
It is against this background that parliament, in July 2022, adopted changes to the Emergency Powers Act and the Border Guard Act, and these actions should set warning bells ringing across Europe.
While Finland needed to respond to a radically changed security context, the hasty legislative changes hollowed out the constitution and raised questions about Finland’s commitment to the rule of law and its human rights obligations.
Hybrid threats among Finland’s top priorities
Hybrid threats are among Finland’s priorities relating to its security concerns.
The Helsinki-based European Centre of Excellence for Countering Hybrid Threats describes hybrid threats as actions by state or non-state actors that aim to undermine or harm a country by influencing decision-making at the local, regional, state, or institutional level. These actions deliberately target democratic states’ and institutions’ vulnerabilities.
Hybrid threats can, for example, involve influencing campaigns, cyber attacks, various forms of sabotage, or instrumentalizing migrant and refugee flows, which is an egregious way of using people in often desperate situations.
In 2015 Finland received 32,476 asylum seekers, a record number for the country. That year large numbers of refugees arrived in European countries, in particular from Syria, Afghanistan, and Iraq. Their arrival in Finland sparked heated debates about multiculturalism, integration, and values perceived as non-Finnish.
Emergency Powers Act no longer protects constitutional or human rights
The legislative changes to the Emergency Powers Act adopted in July 2022 focus on these hybrid threats, in particular the possibility of large flows of asylum seekers or immigrants being directed to Finland’s border by Russia.
To be able to respond to such a situation, parliament chose in haste to amend the Emergency Powers Act instead of addressing the issue through the section of the constitution that deals with fundamental rights during states of emergency and that defines the circumstances in which exceptions can be made.
The changes to the Act were adopted in a hurried package deal that required a compromise with the opposition parties. This included controversial and legally questionable changes to the Border Security Act such as allowing the closing of border crossing points in unclearly defined circumstances.
Writing in Verfassungsblog, leading constitutional and human rights expert Martin Scheinin argued persuasively that following the changes to the Emergency Powers Act the constitution no longer provides protection for constitutional rights or human rights against a supermajority in parliament.
In Scheinin’s words, section 23 of the constitution, which addresses rights during states of emergency, “… was in fact deconstitutionalized” because of the manner in which parliament chose to make changes to the Act.
Border Guard Act changes put in question international human rights obligations
As part of the package deal that allowed the government to obtain the majority required to push through its changes, the Border Guard Act was amended in a way that appeased the anti-immigration opposition.
These changes raise serious questions about Finland’s ability and willingness to comply with its international human rights obligations.
The amended Border Guard Act allows the government to centralize applications for international protection to one or more border crossing points. Expecting asylum seekers who arrive at Finland’s more than 800-mile-long border to make their way to one designated location to apply for international protection could easily make an application impossible.
The circumstances in which the government can decide to centralize applications for asylum are not clearly defined. Scheinin points out that according to the wording of section 16 of the Border Guard Act, the provision could be triggered by, for example, a large sporting event in Finland that attracts many foreign visitors just as it could be triggered, for another example, by a future genocide in Russia.
Dunja Mijatović, the Council of Europe’s Human Rights Commissioner, expressed several concerns about the changes in a letter to Finland’s Minister of the Interior, including concerns that the changes could prevent individuals from applying for asylum.
Mijatović also highlighted the situation of people fleeing Russia via the Finnish border, and this includes people who might be persecuted on grounds related to their opposition to the war in Ukraine, their sexual orientation or gender identity, or their work on human rights. She emphasized the need to pay specific attention to these groups, which she pointed out could be particularly affected.
New 2023 parliament should review the Emergency Powers Act
Parliamentary elections will take place in Finland in early April. The new parliament could choose to continue to review the entire Emergency Powers Act, currently under way and expected to conclude in 2025, to begin repairing the damage caused by the changes made in 2022. The new parliament should not allow the changes from 2022 to remain in their current form and should ensure that future changes comply fully with Finland’s international human rights obligations.
As Scheinin points out in his article for Verfassungsblog, part of the aim of the legislative changes in 2022 was to signal Finland’s determination to protect its population against external threats.
It could be argued that the way in which the changes were made sent another signal: It takes very little to weaken the rule of law in Finland. It will be up to the new parliament and government to decide if that is to be a lasting message.
[Erica Beinlich edited this piece.]
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.
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