Lawyer Baiba Rudevska: Sanita Osipova's non-election as a Supreme Court judge is not a constitutional crisis

"The Law on Judicial Power stipulates that any candidate for the post of a judge must not only have high qualifications and knowledge, but also an impeccable reputation. Did Sanita Osipova meet this requirement? I very much doubt it," says Baiba Rudevska, Doctor of Laws, lawyer. Today, a conversation with her.
22.02.2022. Elita Veidemane
 
©Foto no personīgā arhīva

"Constitutional crisis!" - this is how a group of liberal forces in the Saeima described the non-election of Sanita Osipova as a Supreme Court judge. They were joined by like-minded supporters. The noise was unbearable. How do you comment on this?

Obviously, there is no constitutional crisis. What we are witnessing now is a childish, hysterical and absurd theatre on the part of some politicians and judges. Suddenly, everyone has forgotten that the Saeima has already before voted against the confirmation of judges. For example, at the end of 2010, the Saeima did not confirm Andrejs Judins as a judge of the Supreme Court. Was it a constitutional crisis then?

Of course not.

Mr Judins did not become a Supreme Court judge (and thank goodness), but then he ran successfully in the elections, and now he sits in the Saeima and does politics.

It should be understood that Latvia is a parliamentary republic in which the Saeima, as the assembly of representatives elected by the people, has a central place among the other state institutions. Unlike other institutions, the Saeima's discretion is extremely wide; it is limited only by the Constitution (together with the relevant judgments of the Constitutional Court) and the international treaties concluded and ratified by Latvia. In constitutional law, this is called "parliamentary sovereignty".

And it was according to this same logic that the authors of our Constitution a hundred years ago decided to entrust the appointment of judges to the Saeima.

Judges are appointed in different ways in different countries. There are countries where judges are appointed by the head of state (the president or the monarch). There are countries where this is done by a special judicial council. There are even countries where judges are directly elected by the people.

But Article 84 of the Constitution of the Republic of Latvia makes it clear: "Judicial appointments shall be confirmed by the Saeima and they shall be irrevocable." So the appointment of judges is a constitutional prerogative of the Parliament. And this in turn means that the majority of the Saeima can freely vote for or against this issue. If someone does not like this situation, there is only one way to change it: by amending the Constitution and removing the power of the Saeima to confirm judges.

But Ineta Ziemele, a judge of the Court of Justice of the European Union, argues that the vote of February 17, in which Sanita Osipova was not confirmed as a judge of the Supreme Court, is unprecedented in the recent history of Latvia as a state governed by the rule of law and violates Article 83 of the Constitution, which states: "Judges shall be independent and subject only to the law."

This was an extremely strange statement, especially coming from the former President of the Constitutional Court. It does not take a lawyer to understand that this article applies to judges who are already judges, that is, who have already been confirmed in office. However, at the time when the Saeima decided on her confirmation, Ms Osipova was not a judge. Since February 11 this year, when her term of office at the Constitutional Court expired, she has been an ordinary private citizen like you and me.

It is both amusing and regrettable to see how some well-known lawyers in the public eye are trying to acrobatically force the connection to Article 83 of the Constitution in various ways. According to them, Ms Osipova was punished for expressing her opinions in the past, when she was still a judge of the Constitutional Court. That this is a threat to the independence of judges. However, this is completely wrong, because Ms Osipova has not been "punished" for anything. A person is "punished" if, for some past offence, he or she is deprived or restricted of some of his or her subjective rights. Ms Osipova has not been deprived of any right, nor has any right been restricted.

In my observation, the level of legal teaching in Latvia is appallingly low. It seems that the elementary difference between rights and privileges is not properly explained to students in lectures. No one has any "right" to receive the Nobel Prize, the Oscar, the Order of the Three Stars or the title of Miss Latvia - these are not "rights", they are privileges.

The same applies to high-level national and municipal posts, where candidates are elected. No one has any "right" to be elected or confirmed as President of the State, Judge, Prosecutor General or Mayor of Balvi. So a negative vote for a candidate for such an office is not, from a legal point of view, a "violation of rights" or a "punishment". The person simply did not get the privilege he or she craved, that's all.

I stress again: there is no constitutional crisis. What has happened is a normal democratic process in a parliamentary republic in absolute accordance with the Constitution. If there has been a crisis anywhere, it is rather in the Latvian judicial system: we should think seriously about the impression that the strange statements by the President of the Supreme Court and the Plenary will have on the reputation of the Supreme Court in the eyes of the people.

So why did this hysterical and absurd theatre start?

I think that the reason might have something to do with the ideological position of this candidate. I think that for some time now, a peculiar cult of Sanita Osipova's personality has been created and polished in society. If there had been someone else in her place whom the Saeima had not confirmed as a judge of the Supreme Court, we might not have paid any attention to it at all.

There is also this version: Osipova was supposed to play a role in dismantling the traditional institution of the family, as the Constitutional Court she headed had already successfully begun to do so - to recall the infamous court ruling that the homosexual partner of the mother of a child is entitled to a father's post-natal leave.

We do not know this for sure, of course, and the versions may be different. But the only logical conclusion that can be drawn from all this mess is this: there are certain circles in Latvia for whom it is important that this person, and no one else, should become a judge of the Supreme Court. In any case, the stakes are high enough that even the highest-ranking Latvian lawyers would be prepared to risk their reputations by making patently absurd public statements and assertions.

Pay attention to the decision of the Plenary of the Supreme Court: in their opinion, the decision of the Saeima deprives Ms Osipova of "further career opportunities". This is not true! The law does not stipulate that, upon leaving the Constitutional Court, a job at the Supreme Court is guaranteed. Ms Osipova is free to run for other positions both in Latvia and abroad (if she speaks the relevant foreign languages, of course).

What confused you so much about the decision of the Plenary of the Supreme Court?

Firstly, confusion about the meaning of parliamentarism and the principle of separation of powers in a parliamentary republic. As I said, according to Article 84 of the Constitution, the approval of judges is a sovereign prerogative of the Saeima. This means that the majority of the Saeima is free to decide: to approve or not to approve a judicial candidate.

It is strange that many lawyers now allow themselves to claim that "the role of the Saeima in this process is purely formal". I am sorry, but the Constitution says nothing of the kind. These people would probably very much like our Saeima to be something like the National People's Congress of the People's Republic of China or the Supreme Soviet of the former USSR, which only formally approves all the decisions of the Presidium and the Party Central Committee. Thank God, this is not the case in Latvia.

Secondly, it is completely inappropriate to refer to the "judicial power", whose independence is allegedly being infringed. Yes, indeed, as required by the Law on Judicial Power, Sanita Osipova had received a positive opinion from the general assembly of judges of the relevant department of the Supreme Court. But this opinion is exactly that: a simple opinion which is not binding on the Saeima. Moreover, this opinion does not relate to the exercise of judicial power at all. Judicial power is exercised when a court hears - adjudicates or decides - specific cases: civil, criminal, administrative. An opinion of a Supreme Court department on the suitability of a particular candidate for a post in the same court is not an act of judicial power. So there has been no infringement of the prerogatives of the judiciary by Parliament.

Thirdly, the Saeima is made up of a hundred individual people - the MPs - each of whom is free to vote according to his or her conscience (so-called factional discipline is not a legal concept). According to Article 28 of the Constitution, "Members of the Saeima may not be called to account by any judicial, administrative or disciplinary process in connection with their voting or their views as expressed during the execution of their duties." And if MPs are free to vote their conscience, it is inevitable that sometimes the majority will vote against or a candidate will not get the required number of votes. I think that this is obvious to anyone with common sense, whether they are a lawyer or not.

Finally, the accusation that Saeima's decision is "not motivated" is equally absurd. The Constitution does not require the Saeima to formally motivate such decisions, nor is it realistically possible. Each Member's vote is an independent political action, and each of the 100 Members of the Saeima may have his or her own individual motivation for voting one way or another.

On February 17, MPs also gave clear reasons why they would vote for or against.

Yes, and this is what they are now being accused of: during the plenary debate, they allegedly focused too much on one particular judgment of the Constitutional Court, which was delivered with the participation of Ms Osipova. I am sorry, but that is their right as Members of Saeima, whether anyone likes it or not. Every Member is free to express his or her opinion from the rostrum - that is why he or she is a Member.

We have to understand that every party, every MP, has its own electorate. When Ms Osipova was President of the Constitutional Court and took part in the judgment on the right to parental leave of a homosexual partner of a mother of a child, she failed disastrously in communicating with the public.

Do you remember what she said in her official capacity when explaining the judgment? She dared to compare part of Latvian society to "attack dogs" who have been trained for generations to be intolerant. Does the President of the Constitutional Court really need to use such insults when explaining the judgment?

In the same interview, Ms Osipova contrasted "religious people" with "rational people" and made a highly ambiguous statement that could have been interpreted as expressing a personal dislike of Christians. On another occasion, speaking about the restriction of the rights of unvaccinated people, Ms Osipova asked in the form of a rhetorical question: "Do you necessarily have to go to the theatre and do necessarily you have to work for the State Police?" In the context of this interview, this cannot be understood in any other way than a disparaging attitude towards a large part of Latvian society.

And it is not even about the fact that the presidents of the constitutional courts of civilized Western countries behave much more discreetly and do not speak like this in public. It is about the fact that they cannot publicly insult the electorate of politicians elected to the Saeima and then expect those politicians to vote in their favor. I wonder how a person cannot understand that.

What is more, a judge who hears cases must be impartial, they must not offend people. In the light of Ms Osipova's public statements, one has to ask: would she be an impartial judge of the Supreme Court if one of the parties in the case was a conservative, a Christian, a non-vaccinated person, etc.? Would the litigant concerned have confidence that she would be able to deal with the matter impartially and fairly? What about the parties' confidence in the composition of the court?

The Law on Judicial Power requires that any candidate for judicial office must not only be highly qualified and knowledgeable, but also have an impeccable reputation. Did Sanita Osipova meet this requirement? In the light of everything I have just said, I very much doubt it.

It is possible that Sanita Osipova will be nominated again for the post of judge of the Supreme Court after some time.

Yes, that is my understanding as well. Perhaps the purpose of all this fuss is to frighten MPs and put pressure on them to obediently vote "correctly" next time.

This time, Sanita Osipova was not confirmed as a judge. Her supporters should not be hysterical but should learn to lose with dignity, as adults should. I will conclude by once again using Ms Osipova's own words to those who have lost their jobs for not vaccinating: "Do you necessarily have to go to the theatre and do necessarily you have to work for the State Police?" Let me continue: you do not necessarily have to be a judge of the Supreme Court either...

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