About the Principles of the Constitution of the Republic of Estonia from the Perspective of Independent Statehood in Estonia

Author:Raul Narits
Position:Professor of Comparative Jurisprudence, University of Tartu

1. The necessity of the Constitution of the Republic of Estonia Amendment Act - 2. The CAA and the principles of the Constitution - 3. The juridical essence of fundamental principles - 4. The possibility of creating a catalogue of the fundamental principles - 5. Words in the stead of a conclusion


At the end of the 20th century, on 28 June 1992, a referendum was held by which Estonia adopted a liberal constitution 2 based on people's natural and inalienable rights. The commentaries that were published on the tenth anniversary of the Constitution noted that our constitutional governmental system, which is characterised by parliamentary democracy based on legitimacy, the principle of the rule of law, republicanism, and sovereignty of the people, unitary statehood is derived from and based on the Constitution. 3 Principally, the 21st century brought a new epoch to the development of Estonia and its nation in relation to accession to the European Union. Everything connected to the European Union became especially topical. 4 The accession to the European Union was a relatively long process, as we know, and gave rise to conflicting opinions. I will present the viewpoint on the question of accession to the European Union that was adopted by L. Meri, the first president of Estonia after the nation regained its independence: "We do not need the European Union because of the Union itself. We need the Republic of Estonia. We need a state where Estonians would feel that the prerequisites for the increase in their standard of living and for education for their children are ensured. For the continuation of this Estonia, we need to accede to the European Union and not vice versa." 5

1. The necessity of the Constitution of the Republic of Estonia Amendment Act

Estonian accession to the European Union had to be formalised in a legally correct manner. For this, the Government of the Republic of Estonia decided to hold a referendum concerning the draft legislation titled the Constitution of the Republic of Estonia Amendment Act (CAA). 6 Changing the Constitution in such a manner was necessary as § 3 of the Constitution of the Republic of Estonia provides the principle under which state authority is exercised solely pursuant to the Constitution and laws that are in conformity therewith. The Constitution of the Republic of Estonia does not refer to EU legislation in any of its paragraphs. The above-mentioned § 3 is among the so-called general provisions that can be changed substantially only via a referendum. The adoption of the CAA on 14 September 2003 and its entry into force on 6 January 2004 enabled the Riigikogu (Estonian parliament) to ratify the Treaty of Accession of the Republic of Estonia to the European Union, which had already been signed on 16 March 2003. At four paragraphs, the CAA is not a voluminous law. 7 The same cannot be claimed about the constitutional content of the CAA. The fact is that at the accession of Estonia to the European Union, the text of the Constitution was not changed, but through and with the CAA, the Constitution was recurrently changed so that Estonia could accede to the European Union. 8 Thus, the four paragraphs of the CAA are of immense importance for Estonian statehood; they contribute to the explanation of the present constitutional situation, and, in my opinion, elucidate the perspective of our statehood. The CAA has changed the whole judicial attitude toward the Constitution. 9 Doctrinally, complementing the Constitution by a separate law is still changing the Constitution, even if there are no changes made in the text of the Constitution. To understand the Constitution in this situation, one should start reading both texts such that, in an applied sense, only that part of the text of the Constitution is imposed that is not in opposition to the CAA. 10

2. The CAA and the principles of the Constitution

In the present article, I would like to concentrate on § 1 of the CAA, which provides: "Estonia may belong to the European Union in accordance with the fundamental principles of the Constitution of the Republic of Estonia", which is one of the most important provisions that necessitate the interpretation of the essence of the Constitution in the situation in which Estonia is a member state of the European Union from 1 May 2004. It is fortunate that this question can be handled in an academic manner. Also philosophers recognise that "[d]ispassionate, public, and serious thinking is a prerequisite for the continuation of Estonian statehood". 11 Moreover, as the spirit of the Constitution does not fit only in the norms of the Constitution, its text and words, § 1 of the CAA similarly is a generalisation and a provision in need of interpretation. The specialist literature notes: "Through interpretation of constitutional law, dubious places in the Constitution are eliminated and constitutional law is developed." 12

Initially, the draft text of the CAA did not contain the principles, nor did the explanatory memorandum mention them. 13 Then, the Chancellor of Justice at the time suggested that the Constitutional Committee complement the draft of the CAA with a so-called crisis reservation: "Estonia can be a member of a European Union that functions according to the principles of human dignity and the social and democratic rule of law, and which is founded on liberty, justice, and law, and which shall guarantee the preservation of the Estonian nation, language, and culture through the ages" (in Estonian, "Eesti võib kuulda Euroopa Liitu, mis vastab inimväärikuse ning sotsiaalse ja demokraatliku õigusriigi põhimõtetele, mis on rajatud vabadusele, õiglusele ja õigusele, mis peab tagama eesti rahvuse ja kultuuri säilimise läbi aegade"). 14 The Constitutional Committee supported the suggestion of the Chancellor of Justice, but, to prevent the repetition of the text of the Constitution in the CAA, the committee decided to use only the words 'the principles of the Constitution' in the law. The course of the draft proceedings demonstrates that the parliament accepted the suggestion of the Constitutional Committee.

Already the pre-CAA constitutional discourse often concentrated on the values expressed in the Constitution and the different characteristics of these values. It was wondered whether it is possible to find an ultimate value in the Constitution that is the foundation for our statehood. And it is so. This is the issue of the relationship between the individual and the state. In Estonian statehood, the individual is not for the state but the state is for the individual. Statehood is a constant search for balance between personal liberty and the state that is created to warrant personal liberty. 15 In fact, the ultimate value is not a legal concept but an ethical-cultural category. Once this concept is situated in the Constitution, it is transformed into a judicial and therefore binding category. The Preamble to the Constitution states that the idea behind strengthening and developing the state is to guarantee the preservation of the Estonian nation, language, and culture through the ages. Here, it is important to know that the individual's priority over the state is not prescribed by the state, but the Republic of Estonia acknowledges this as a natural right of the individual. The state is competent to organise through its juridical precepts the behaviour of people to such extent that the organisation would not encroach groundlessly on their liberties but guarantee at the same time the realisations of public interests. This ultimate value has to be realised primarily by the state. 16 Therefore, the content of the questions about the continuation of the Constitution (read: statehood) is timeless and the questions cannot be sacrificed to objectively changing circumstances. It is obvious that membership in the European Union is of extreme importance to Estonia, but our considering this reality must not harm Estonian statehood, the ultimate goal of which is to guarantee the preservation of the Estonian nation, language, and culture throughout the ages.

Obviously, there is no doubt that our constitution embodies those European values on which European Union law is based and according to which it is being constantly improved. The Constitution of Estonia, in turn, is through the values embodied in it in accordance with European Union law. The opposite situation would not have enabled signing of the Treaty of Accession to the European Union. Signing the Treaty of Accession was preceded also by the process of harmonisation between Estonian legislation and European Union law. From this, an important conclusion can be drawn - the influence of the CAA is directed to the future. There is no doubt that, in the course of implementation of European Union legislation, the Constitution still has to be applied, and at the same time the rights and obligations arising from the Treaty of Accession have to be taken into account. As we know, the expressis verbis content of § 1 of the CAA prescribes that Estonia may belong to the European Union proceeding from the fundamental principles of the Constitution of the Republic of Estonia. This enactment gave the possibility to sign the Treaty of Accession to the European Union. 17 It is important to note that the European Union accepted the amendment of the Estonian Constitution by the CAA, notwithstanding the fact that the CAA introduced the new term 'fundamental principles' to the Constitution while leaving its content unexplained. It seems that the reason for the laconic approach was that views concerning the fundamental principles were conflicting, and, indeed, consensus has not been achieved to this day. 18 There is no doubt that the CAA is a link between the Estonian national legal order and European Union law. The force that forms the whole is binding, while in the present case two laws that have different importance and meaning...

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