The Chancellor of Justice’s Role in Protecting the Constitution and Balancing the Legislature’s Activity: Is the Chancellor of Justice Only a Prosecutor of the Supreme Court?

• Author: Allar Jõks
• Position: Chancellor of Justice of the Republic of Estonia
• Pages: 14-21

Allar Jõks

Chancellor of Justice of the Republic of Estonia

The Chancellor of Justice's Role in Protecting the Constitution and Balancing the Legislature's Activity: Is the Chancellor of Justice Only a Prosecutor of the Supreme Court?

Five years ago, on the 10^th anniversary of the Constitution, I gave a speech titled 'The Chancellor of Justice and/or Ombudsman'¹. It focused on the pros and cons of merging the functions of the Chancellor of Justice and the Ombudsman. Now, nobody has any doubt any longer that it was the correct decision to join these two functions. Separation of the two functions would necessitate amendment of the Constitution and renouncement of at least one international treaty.

It is therefore symbolic that the present discussion, which is dedicated to the 15^th anniversary of the Constitution, focuses on another important aspect of the activities of the Chancellor of Justice - constitutional review. The fact that the Chancellor of Justice speaks about his own constitutional role and the line between legitimate protection of the Constitution and illegitimate interference with politics might, of course, remind you of the well-known fairy tale about the goat becoming the gardener. The Chancellor of Justice has been admonished enough by politicians for not remaining true to his business and for having passed up a great opportunity to be silent.

Below I would like to share the ideas I have had in my six and half years of this practice that relate to the role of the Chancellor of Justice as a constitutional review institution and about how I understand the balance of law and politics in this institution.

Firstly, it would be appropriate to briefly introduce the institution of the Chancellor of Justice and engage in a short excursus to history to see how the authors of our constitution saw the Chancellor of Justice's institution.

The Constitution of the Republic of Estonia ² lays down the following functions of the Chancellor of Justice (formerly translated as 'Legal Chancellor'):

1) the Chancellor of Justice as the reviewer of compliance with the Constitution and laws ³ ;

2) the Chancellor of Justice as the Ombudsman ⁴ ; and

3) the Chancellor of Justice as a higher criminal prosecutor⁵.

1. About the constitutional review function of the Chancellor of Justice in general

The constitutional review activities of the Chancellor of Justice may be conditionally divided into ex ante and ex post control.

For ex ante control, the second sentence of § 141 of the Constitution allows the Chancellor of Justice to participate in sessions of the Riigikogu and of the Government of the Republic with the right to speak. The right to speak at a session of the Government of the Republic allows the Chancellor of Justice to draw attention to the most apparent shortcomings in draft legislation and to obtain the information he needs for his work. The Chancellor of Justice may participate with the right to speak in plenary assembly and committee sessions of the Riigikogu.

Unfortunately, it is often mistakenly thought that if the Chancellor of Justice has participated in a session of the Government of the Republic or of the Riigikogu, this guarantees that the law or regulation adopted complies with the Constitution and any further contestation is precluded. In the course of legislative proceedings, attention can be drawn to only the most obvious errors, as conflicts with the Constitution are usually revealed only upon implementation of the law. This is why it is erroneous to think that the Chancellor of Justice should review every legal act adopted in the country or even that the Chancellor of Justice not having contested the act within reasonable time after its adoption indicates that the act is in line with the Constitution and the laws of the land.

Ex post control by the Chancellor of Justice may be divided into two parts: 1) proposing to the body which passed the act to bring it into conformity with the Constitution and 2) initiating of constitutional review proceedings in the Supreme Court. Everyone has the right of recourse to the Chancellor of Justice to review the conformity of an act of parliament or a regulation (according to the Constitution "law creating acts") with the Constitution or the law⁶. The Chancellor of Justice may also check the compliance of these acts on his own initiative. If the Chancellor of Justice finds that an act passed by the legislative or executive powers or by a local government is in conflict with the Constitution or a law, he shall propose to the body that passed the act to bring it into conformity with the Constitution or the law within 20 days⁷. From 1993 to 30 June 2007 , the Chancellor of Justice made 386 proposals for bringing such law creating acts into conformity with the Constitution. If the act is not brought into conformity with the Constitution or the law in 20 days, the Chancellor of Justice shall propose to the Supreme Court declaration of it as invalid⁸.

At this point, it is appropriate to have a glance at history and see how the Constitutional Assembly developed the institution of the Chancellor of Justice when drafting the Constitution of the Republic of Estonia .

It was not so much the issue of the Chancellor of Justice's constitutional review function that raised disputes at the Constitutional Assembly as the issue of whether the Chancellor of Justice could also have the function of an ombudsman. In the shorthand notes of the Constitutional Assembly, the Chancellor of Justice has been described as the supervisor of development of the legislation and the legal system ⁹ and as the controller of compliance with the Constitution and the quality of legal documents¹⁰. Importance was attached to the Chancellor of Justice's own initiative and compliance with the principles of democracy. Jüri Adams said at the Constitutional Assembly when introducing the institution of the Chancellor of Justice: "We have considered it necessary to introduce an institution that has a direct duty to raise issues of the compliance of the government's decisions with the Constitution on his own initiative regardless of whether or not a group of citizens draws attention to such issues" and that protecting society from the state "will be one of the most important tasks in the coming years"¹¹.

Based on the above, the role of the Chancellor of Justice may be described through the following key concepts: supervision of the development of the legal system, assessment of the quality of legal documents, and intervention on his own initiative to protect democratic society.

In view of the above, it is odd that in recent years a question has been raised as to whether the Chancellor of Justice may, in his constitutional review capacity, contest only the acts or also the omissions or insufficient acts of the legislative body.

According to § 139 of the Constitution, the Chancellor of Justice shall review the law creating acts of the legislative and executive powers and of local governments for conformity with the Constitution and the body of law. As the Constitution provides both limitations (prohibitions) and positive obligations for the legislature in its legislative drafting activities, both the acts and the omissions of the legislature should be effectively controlled in the course of constitutional review. If a law lacks something it should contain according to the Constitution, it is certainly not in line with the Constitution. Therefore, under the first sentence of § 139 of the Constitution, it is subject to review by the Chancellor of Justice. Otherwise it would be the legislature that decides on the scope of abstract constitutional review of norms (abstract norm control). In such cases, the Riigikogu would be able to use legislative drafting techniques to avoid the Chancellor of Justice's review of the compliance of legislative acts with the Constitution. The interpretation according to which the Chancellor of Justice has no powers to contest failure to issue law creative acts, or, put another way, omissions or insufficient acts of the legislative body, differs in my opinion from the views of the Supreme Court so far and from the consistent practice applied in construing the Chancellor of Justice's powers since 1994. When one considers the Chancellor of Justice's powers, the Chancellor of Justice Act and the Constitutional Review Proceedings Act ¹² should be interpreted in the light of and in line with the Constitution and not the other way round. In this connection, any discussions over which provisions of the Constitutional Review Proceedings Act give rise to the Chancellor of Justice's right to contest the omissions of the legislature lose their meaning.

2. Chancellor of Justice as the constitutional prosecutor at the Supreme Court

If we ask whether the Chancellor of Justice is only a constitutional prosecutor at the Supreme Court, we have posed a tricky question. What could I have against being called the constitutional prosecutor at the Supreme Court in the context of the constitutional review function of the institution of the Chancellor of Justice? If anything, this sounds really dignified and respectful. The tricky word is 'only'. I will give an example from a somewhat different context. If we look at, e.g., the European Court of Justice, also the Advocates-General are 'only' Advocates-General, in the sense that they are not at the core of decision-making as judges. At the same time, everyone who has studied EU law knows that Advocates-General play a fairly central role in the outcome of cases. Yes, in the Estonian...