On the centenary of the Constitution, one should not shy away from talking about things politicians don't like

In an interview with Neatkarīgā, Professor Ringolds Balodis, Corresponding Member of the Latvian Academy of Sciences, stresses that on the centenary of the Constitution, the public should be reminded once again of the weak parliamentary power and how the institution of the President of Latvia is subservient to the coalition. This should not only be discussed but the reasons for it should also be explained. If voter turnout continues to decline, our parliamentarism and our Constitution will meet a sad end.

Read the beginning of the interview here.

The Constitution of Latvia is now a hundred years old. What can you say about this document that is important and interesting, that has gone unnoticed or little-noticed?

What is interesting to one person may not seem so to another. We are unique in comparative law because we have been able to restore a Constitution that had not been used for more than fifty years. It is the only such case in the history of the world. As regards the content of our Constitution, we are among the few countries that elect their presidents in parliament, and by a margin of one vote, or 50 +1 votes, and by open ballot. This is also unique. Is it good? I doubt it, because it makes the President an employee of the Saeima, or rather of the coalition, however much he may try to look like the President of the whole nation. As for the Constitution, I can say that it is good that it exists, but the overall temperature of the system shows that improvements are long overdue. I keep hoping that a wiser Saeima will finally be elected, one that will be able to reboot the public administration, make it more efficient, more people-oriented. So far, however, the opposite is happening.

Is the Constitution to blame for the fact that more and more people do not trust the work of the Saeima and the President of the Republic?

Yes and no. There is no 100% guarantee that they would not lose the people's trust even if the Constitution was better worded. Let us start with the President, to whom the Constitution devotes the entire Chapter 3. It is disproportionately large, with detailed sections, compared with the very short Chapter 4, which is devoted to the Cabinet of Ministers. At the same time, power in the country is objectively in the hands of the Prime Minister. In our constitutional system, the President is given a ceremonial, representative role. The President is expected to serve the people, but, given how he is elected and removed, he serves the Saeima. He is like an avatar (embodiment), as identified by Vaira-Vīķe Freiberga. The President has no serious tools in his arsenal to fulfil the role of balancer of forces that constitutional theory has given him. Personal charm and wisdom do not always work. We are seeing this very well at the moment. The President is elected to office by a majority of just one vote, which automatically makes him a collaborator in the coalition that elected him. It would be a different matter if the President was elected by the people. That would make him a real political player, or one who could put the brakes on the boundless ambitions of the Saeima. It is natural that the Latvian political elite has always been terrified by the voice of the people. When the Constitution was written in the early 1920s, and even now, the people as legislators were given only a formal statist role, which basically takes the form of elections to the Saeima. No one knows who the people will elect as President, say the coalition-controlled public media. I think we have longed for a clear opinion, responsible action and firm statesmanship, but there is no sign of that. I think that Egils Levits had good intentions and big plans. He was really very inspiring before he was elected. He was very brilliant in describing what a head of state should be, what the President of Latvia should do and how he should do it, but... In the first part of the famous film "The Matrix", there is a saying: "There's a difference between knowing the path and walking the path". It seems that the same thing has happened to Levits. Above all, the desire to support his own people, including the Soros organizations mentioned in your newspaper, prevails over his policy of action. He is lonely among his own people because he has built up a large coterie of advisers in which there seems to be no one who can tell him the truth, or who will tell him when his hat is left on during the national anthem. His real capabilities do not extend very far.

But what about the Saeima?

Parliament has been steadily unpopular in both periods of our country's independence. The parties that make up the composition of Parliament are to blame. Our first President, Jānis Čakste, said of the parties that Latvia does not yet have parties in the national sense. There are only narrow groups that try to use the state for their personal interests. These words were said about the 2nd Saeima, but they can just as well be said about the 13th Saeima. At the same time, there is one fundamental difference between the first pre-war parliaments and today. In the inter-war parliamentary elections, over 80% of the electorate consistently voted, now only 50%! God only knows how many voters will turn out this autumn to vote for the 14th Saeima. This, in turn, creates another problem, which is logically linked to the basis of democracy, the legitimacy of power, which derives from the people. The electorate, the people are becoming more apathetic every year and are beginning to distance themselves from power. Citizens begin to ignore elections, with the result that we begin to be ruled by a tiny minority. A striking example is Unity (Vienotība), which, with its tiny fraction, runs the Cabinet of Ministers, the Ministry of Finance and also sets the tone in the Saeima Presidium and the committees. With each Saeima, this democratic institution becomes worse and worse. This is manifested in the inability to listen to dissenting views, which has been greatly reinforced by the benefits of the epidemiological restrictions brought about by the pandemic. Saeima has also become arrogant. Not only is it unwilling to hear the different opinions of municipalities, but, in the midst of administrative reform, also of its own colleagues. A striking example is the law on vaccination of MPs. We do not like to hear Jūlija Stepaņenko - let us prevent her from attending meetings at all, even though there was and is no logical argument why she should not be able to work remotely. The President of the Republic, Egils Levits, recently said that distrust of the government should be linked to the Soviet legacy. What Soviet legacy? Was he serious? Maybe the shallow state policy and the arrogant confidence of those in power in the correctness of their decisions is to blame? This cultivation of black and white in the public sphere, together with the subject of vaccination, is disastrous for the nation.

Is it not the case that in the Saeima at the moment, a great many procedures are being carried out outside what is stipulated in the Saeima's Rules of Procedure?

In the Rules of Procedure, you will find no provisions for the remote working of the Saeima, no procedure for the division of Members into committees, no procedure for the functioning of committees, no clear procedure for assessing candidates for the Presidency or for extraditing Members for prosecution. If there is such a wide scope for interpretation in a written document, then there is ample scope for manipulation of Members. After the idea of Valdis Zatlers, which was taken up by Unity, that all officials be elected only by open ballot, the role of the legislator has increased, while the ability of each of the 100 MPs to influence anything has been considerably reduced. Most MPs feel personally very important. In reality, they are merely political puppets who are forced to accept the position of the faction leadership on every issue as the absolute truth. If not, they usually become independent MPs, which means a kind of hermit or outcast life. This has led to a catastrophic reduction in the freedom of action of MPs and a degradation of individual political responsibility. All this has significantly reduced any discussion, the expression of opposing views and reasoned arguments from the rostrum of the Saeima. It all comes down to a narrow narrative of the political majority - he who is in the majority is powerful and right; he who is in the minority is wrong. This contributes to poor quality legislation. The Constitutional Court, the Prosecutor's Office see this and act.

You say that the judiciary is trying to take over the fields of other powers, whereas last autumn, the President of the Supreme Court, Aigars Strupišs, in an interview with Neatkarīgā, mentioned studies according to which judges feel pressure from the executive. It was mainly about the district and regional court judges. Isn't it the other way round - judges themselves admit that they are influenced by other authorities?

It's a long discussion. Similarly, the Constitution of Latvia says that Latvia is a sovereign republic, but the truth is that our sovereignty is limited. To say that the legislative, executive and judiciary are absolutely independent would be premature. It is impossible to live completely independently of one another. The Americans talk about the balance of powers, the Germans about the intersection of powers, which is closer to the truth. There is a relationship of subordination and control between the powers. The executive is dependent on the legislature and is therefore an institution of parliamentary control. The judiciary is also subject to its own control mechanisms from the executive and the legislative. The judiciary largely sees its independence as a function of its job. Judicial independence and fair trial are fundamental concepts in themselves. The judiciary became more independent after the establishment of the Judicial Council. Looking at the current composition of the Judicial Council, it has two people from the same political party, the New Conservative Party (Jaunā konservatīvā partija). This factor has a real impact. In order to prevent such executive influence on the judiciary, I consider it vital to include the President of the Republic in the composition of the Judicial Council. I know that the judges hate this idea, but such an outsider on the Judicial Council could balance the mess that sometimes prevails there. At one time, the Institute of Legal Studies carried out a study on the influence of public opinion on the courts. The relatively recently confirmed Prosecutor General and, before that, the President of the Supreme Court need to justify the trust delegated to them, so they need to show at least some new signs of a breath of fresh air. That is why the prosecution has resumed referring old criminal cases. The situation is different with the President of the Supreme Court. Contrary to the opinion of the President of the Supreme Court, the Economic Court has been set up. It is very noticeably an outlier of our legal system. The limited experience of the judges of the Economic Court of Justice in dealing with complex crimes with millions behind them is obvious. All of this creates new practice. The court is uniformly starting to hear cases where the accused only find out at the very end of the trial what they are really being accused of, and are unable to defend themselves in the short time available. On the one hand, we have a stable judicial system, which has not been without scandal for thirty years. Now, supranational political pressure has created a situation in which a political force has created, if not a pocket court, then a court where inexperienced judges are trying very complex crimes. On top of all this, there is a great deal of foreign political pressure, millions of euros and the forthcoming elections, where the political forces have to show the best possible results with the least possible expenditure. In a country governed by the rule of law, these things should not happen, but that is the way it is. Let us look at the pressures from the other direction. At the moment, there is a lot of pressure to go and get vaccinated, and those who do not bow to that pressure are labelled as the bad guys - the ones who should be punished. In the same way, judges are being backed into a corner and the results can be felt.

Latvia has been living under the umbrella of the Constitution for a hundred years...

Let us be precise: the Constitution is a hundred years old, but it has only been in operation for forty-one years. And if we are very precise, the Constitution has only been in force for thirty years.

The Constitution declares many good, right things, but often they are ignored in practice. For example, Aivars Lembergs has lodged four complaints with the Constitutional Court in the last year alone. He has been fighting for the right to a fair and impartial trial, as declared in the Constitution, for twelve years. He continues to do so in prison, without really knowing why he is being held without a final conviction. What value, meaning and weight is there in a Constitution that is not implemented in practice?

The Constitution contains declarative values to which we should aspire. The Constitution establishes rights in themselves, but that does not guarantee the realization of those rights. This is determined by the public administration with its institutions - such as the courts, the Constitutional Court. It is important who works in these institutions, how professional and honest the people working there are. If we look at the Nazi rise to power in pre-war Germany, it was done legally. The Germans have a concept called "Rechtsstaat" - the rule of law. The concentration camp guards also operated within their fascist rule of law. They did horrific things within the legal framework of the time. If we look closely, we can also see the foot of lawlessness. For example, in order to get a vote for Hitler, some members of the Reichstag were imprisoned at home, others were intimidated. Procedurally everything looked legal. When I was serving in the Soviet army, in a paratroop unit, winter came. The uniform changed, and I had to wear a pizhik (a warm winter hat with lowerable ears). I was issued a pizhik which was too small for me. I went to the kaptyorka (clothing and property warehouse) to the praporshchik (a special military staff unit in the Soviet army for monitoring material assets) and said that the pizhik I was issued was not suitable - it was too small. He asked me: "What is your year of birth, height, shoulder width, arm length?" Pointing to a plaque on the wall, he bellowed, "There! See the formula? You've been given your size!" I replied that despite that this pizhik was too small for me, because my head was too big. "Wear it anyway - I can't help you," said the praporshchik bluntly. This is procedural democracy. It is as if everything is procedurally correct and everything is respected, but the content is completely different. We can see in practice how judges, as human beings, resist orders. One of the orders comes from Skride, a Member of the Saeima, that you have to be vaccinated and that those who are not vaccinated have a poor education. It turns out that if you do not vaccinate, you are ignorant. The next point is that those who do not believe in our government are post-Soviet elements. That is not the case either. This government has only been in power for less than four years, and it has nothing to do with the Soviet period. There is a concept in law called the "chilling effect". The chilling effect comes from the Minister for Justice when he proposes amendments to the Criminal Law for spreading false news, which is itself a very vague concept that is difficult for the ordinary policeman to understand. However, if every now and then a policeman is told that he has to show a track record in initiating criminal proceedings for spreading false news, it is more convenient for him to initiate such criminal proceedings than not to initiate them. This is political pressure, and it is deliberately created. At present, the rule of law depends to a large extent only on the institutions defined in the Constitution. It is therefore wrong to ask what the point of the Constitution is. It has become the practice that every country has its own fundamental law, the constitution. We have one too and it must be respected. But that does not mean that it is automatically respected. That is why the Constitutional Court has been set up, to which one can complain about unconstitutional laws and their application. Of course, it is long, expensive and torturous for an individual to go through the long procedural road, and he may give up in the end. In the pandemic, we can clearly see how those in power are keen to use power as a means to organize tenders more quickly.

Would it not make life easier if we were to remove a number of theses from the Constitution, such as the right to a fair trial and freedom of expression? I ask this because we see the appetite with which the ruling power is trying to criminalize the expression of opinions, and because the head of a successful municipality has, since 1999, for a third of his life, had to fight for his justice in criminal proceedings for which he is still occasionally imprisoned - I am talking about Aivars Lembergs.

Even if we were to remove the whole of Chapter 8 from the Constitution, we would still have the rights you mentioned and others, because we have acceded to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, the case-law of the European Court also applies to our jurisdiction. This Convention has been in force since 1997. In order to filter out violations in these areas, we have a national court, the Constitutional Court, followed by the European Court of Human Rights and finally the United Nations. Deletion will achieve nothing. If these rights were not written into our Constitution, we could go straight to the European Court of Human Rights and not have to go through all the corridors of national court procedures.

In the interview, you mentioned the rule of law under Hitler. The same rule of law existed under the USSR. There was a constitution, whose establishment was celebrated with one day off a year, and it was also under the cover of this legal, democratic constitution that the Troikas decided to shoot innocent people. Is there not a similar point to be made about our Constitution and what is happening in real life?

Although the constitution is democratic, Germany became an authoritarian state through the procedures it laid down. In the case of the USSR, it was different. It was not a free country to begin with. It was created anew by a coup d'état, where the ruling regime adopted the constitution it thought necessary. In the cases of fascist Germany and the USSR, it was not intended from the outset that these constitutions would be respected. We are fighting for our Constitution to be respected. We can talk about the phenomenon of constitutional relativism in Latvia - despite the fact that this and that is written into the constitution, it is not respected. But the good news is that we respect the case-law of the European Court of Human Rights. Another worrying trend is that the legitimacy of elections is declining. Fewer and fewer people are turning out to vote. A minority is voting. The majority has become indifferent. The minority chooses the country's leaders. Over the lifespan of our country, we have created apathy towards politics. This is a dangerous factor.