Constitution in a Blast of Changes

• Author: Heinrich Schneider
• Position: Dr., Councillor to the Constitutional Review Chamber of the Supreme Court
• Pages: 4-14

Heinrich Schneider¹

Dr., Councillor to the Constitutional Review Chamber of the Supreme Court

Constitution in a Blast of Changes

1. Introduction: about the road travelled

Time flies. It seems to fly quicker and quicker, often without leaving a chance to ponder over memories. It was not long ago when the Constitutional Assembly held heated discussions over each provision and meaning of the draft Constitution of the Republic of Estonia. This year we are already celebrating the jubilee of Estonia 's thus far longest lasting Constitution, as the Constitution, adopted by the referendum of 28 June 1992, is now 15 years old. Jubilees and other anniversaries, especially those ending with the figures 5 and 0, are self-reminding, help organise the memory, and draw attention to and direct our thoughts along the timeline of the past, the present, and the future.

1.1. The first jubilee

On its jubilee, the Constitution is posing the same challenge, a reminder and a call for attention. On previous anniversaries, celebration ceremonies, conferences or receptions were accompanied by symbological celebration of explaining and interpreting the Constitution. On the fifth anniversary, the materials of the creation of the two Constitutions were published; the Estonian Academic Law Society initiated a publication on the pre-constitutional acts of the re-independent Estonia and the Ministry of Justice edited the materials of the Constitutional Assembly². The long delay in the publication of the Assembly's materials was thus repaid.

If at first, the reality of life dictated the priority of establishing statehood and legal order based on the Constitution, and this left no time to assess what had been done, then later the corresponding conclusions have been made and errors have been corrected. A feedback mechanism was launched; the Constitution and its implementation results were observed and studied. This was greatly stimulated by Estonia 's main political objective of becoming a MemberState of the EU. This objective was formulated on 28 November 1995, in the Government of the Republic's official accession application, which the Estonian Prime Minister submitted to the European Commission.

The accession application and its acceptance implied the beginning of large-scale preparations, especially the harmonisation of Estonian law with EU law. As early as 30 January 1996, the Estonian government had drawn up the organisation of European integration -- the necessary institutions and their functions. The Constitutional Committee of the Riigikogu addressed the Government of the Republic with a proposal to set up a group of experts to analyse the Constitution and propose amendments. On 14 May 1996, the government set up a Constitutional committee of legal experts ³ , whose task was to study the compliance of the provisions of the Constitution with the requirements imposed by the EU for its Member States, to analyse the possibilities of delimiting the competence of constitutional institutions, and to draft proposals for eliminating any legal gaps, conflicts and inadequacies, as well as any circumstances that could prevent Estonia's EU aspirations.

The committee of legal experts worked for nearly two years and produced valuable results. The results of the analysis were summed up in an activity report ⁴ , which together with the proposals and other topical discussions comprised 504 typewritten pages. The report is lengthy because it contains not only examination results but also explanations of the provisions and meaning of the Constitution, theoretical commentaries, generalisations of practice, legal overviews and analyses of the Constitution, and comparison with the constitutions of other countries and EU law. All these different approaches and facets of research are interrelated and the results have been presented as a systematic whole. The Government of the Republic decided to acknowledge the report of the committee of experts and consider its work completed⁵. However, the committee of experts not only fulfilled its duties, but created added value with its report, as it helped lay the foundation for planning further studies into the Constitution of the Republic of Estonia.

This further discussion largely depended on what had been already done, because numerous proposals to amend the Constitution and, to some extent, the entire legal system were waiting to be implemented. A curious situation developed while resolving the situation. Although there were almost a hundred amendments and additions directly concerning the Constitution ⁶ , and they covered two-thirds of the sections of the Constitution, neither the experts themselves, the legislature, executive bodies nor representatives of the public never seriously proposed the drafting of a new Constitution at once. Everyone hoped for "softer" and more flexible forms of implementation of the proposals. This was largely because the identified shortcomings were not so weighty as to hinder the development of the state and society. Implementation experience and theoretical focusing helped the problems of the Constitution to be understood more deeply upon the expert assessment than upon drafting the Constitution. Therefore, the proposals made in the course of the expert assessment cannot be viewed only as corrections of mistakes, but also as the programme for further development. This angle of departure was apparently also kept in mind in the grouping of the amendments.

1.2. The tenth anniversary reminds of itself

When planning the implementation of those proposals which look into the future, the idea arose to translate them into the language of commentaries to the Constitution. The idea grew and developed rapidly, because the hopes were for a broad-based interpretation of the Constitution, fed by the relatively high level of generalisation and the fundamental principles of the Constitution. The idea was also supported by the state. On 13 September 2000, the government committee set up to make preparations for celebrating the tenth anniversary of the Constitution decided to prepare a commented edition of the Constitution.

Two factors complicated the preparation of the edition: the time factor and coordination of the content of the commentaries. Hardly one and a half years were left for preparing the voluminous (757 pages) commented edition of the Constitution by the tenth anniversary of the Republic of Estonia. Publishing the commentaries in such a short period of time was possible mainly because of the availability of the expert assessment materials. As to the harmony of the content of the commentaries, it had to be taken into account that the purpose of the scientific commentaries to the Constitution was to create a single, coordinated and whole system of detailed study, generalisation, and interpretation of the substance and meaning of the Constitution.

Although more time would have been necessary for coordinating and organising the content of the commentaries, the commented edition ⁷ was published on time and without great loss of content. From the evaluative point of view, it is important that the commented edition, like the report of the committee of legal experts, became a written landmark of the tenth anniversary of the Constitution. A number of other jubilee writings were published, in which members of the Constitutional Assembly, researchers, former and current politicians, statesmen and public figures recall the creation of the Constitution, the development of the legal system and state institutions in line with the Constitution⁸.

The tenth anniversary of the Constitution was marked not only by active publishing, but also increased satisfaction with the Constitution. The constitutional act as a whole has been praised much more than criticised, compared to earlier times. The functional procedure and method of election of the President of the Republic, and the organisation of national defence have been issues of deep-rooted criticism since the days of the Constitutional Assembly. In both cases, the main shortcoming is seen to lie in excessive adherence to the former Constitution of 1938.

This mainly positive picture of the Constitution, with a few darker shadows, has developed when viewing and regarding the Constitution as the highest act of Estonia 's domestic legal system. The highest act, the research, commentaries, and interpretations of which by the Supreme Court have strengthened the basis of the country's legal order and paved the way for increasing entrenchment of the word and meaning of the Constitution in the legal system. This is why the Constitution survived its tenth jubilee without amendments, in the same form as it was when adopted by the referendum.

In terms of appearance, this was a period of peaceful functioning for the Constitution, but in actuality it was a period of active preparations for accession to the EU. The analysis by the committee of experts already covered potential accession to the EU and the legal implications of accession for Estonia 's constitutional law. The fact that the European Commission recommended launching accession negotiations with Poland , Hungary , the Czech Republic , Slovenia , Estonia , and Cyprus on 16 July 1997 built up tension. Estonia agreed and presented its plans concerning European integration. However, in the meantime, the committee of experts had reached...