Constitutional Review under 1992 Constitution
| Author | Peeter Roosma |
| Pages | 35-42 |
Peeter Roosma
Constitutional Review under 1992 Constitution
The concept of constitutional review with its contemporary meaning was introduced into the Estonian legal system by the Constitution of the Republic of Estonia1 of 1992. However, the relevant provisions in the Constitution are extremely brief and do not give a close insight into the ideas of the drafters of the Constitution about the system of constitutional review. Unlike many other modern constitutions, the Constitution of Estonia does not include a separate chapter or other subdivision dedicated to constitutional review, and there is no separate constitutional court in Estonia. Five main sections, located in different chapters of the Constitution, contain provisions dealing with constitutional review. The sections mentioned are: §15 (which is located in Chapter II - "Fundamental Rights, Freedoms and Duties")2, 107 (Chapter VII - "Legislation")3, 142 (Chapter XII - "The Legal Chancellor")4, 149, and 152 (Chapter XIII - "The Courts")5. Actually, it seems that at the time of drafting the Constitution by the Constituent Assembly, there were other great political controversies (e.g. the question who should elect the President of the Republic)6, and the "technicalities" of constitutional review did not attract much attention.
As noted above, the Constitution provides only for a very general framework of constitutional review and leaves the more detailed provisions to be established by law7. According to the Constitution, the function of constitutional review is carried out by (1) the President of the Republic, while proclaiming laws adopted by the Riigikogu;8 (2) the Legal Chancellor, with regard to consistency of the legislation passed by the state powers (both legislative and executive) and local governments with the Constitution and laws;9 and (3) the courts, Supreme Court in particular10. Each of the subjects of constitutional review procedure is dealt with in greater detail below, while considering relevant provisions of the Constitution, the Constitutional Review Court Procedure Act11 and other legal acts together with appropriate legislative history, where available.
However, one more explanatory remark must be made concerning the initiation and exercise of constitutional review. In the broader sense, one can say that the President, the Legal Chancellor and all courts exercise constitutional review. It is correct in the sense that they evaluate legal acts, compare them with the Constitution and take certain measures if they find a conflict between the Constitution and other legal acts. In a narrower sense, one can claim that the role of those institutions is limited to the initiation of the constitutional review procedure - the constitutional review itself, in the meaning of authoritatively determining if a legal act contradicts the Constitution or not, is carried out only by the Supreme Court. Since the choice of the terminology depends on the context, and on the emphasis, there is hardly any rigid division based on the distinction presented above, either in literature or in the present paper12.
Constitutional review as exercised by the President of the Republic has the most limited scope among the three subjects of review, and is regulated with relative precision by the Constitution. Some further qualifications, however, must be made. According to §107(2) of the Constitution the President of the Republic may exercise the power of suspensive veto in regard to the laws passed by the Riigikogu. The text of § 107(2) does not specify, on which grounds a law can be vetoed. In principle, the grounds may be legal or extra-legal13. At first glance, the second and third sentences of §107(2) which provide the option for the President of the Republic to propose to the Supreme Court to declare the law unconstitutional seem to support the view that the President of the Republic has the power to veto laws passed by the Riigikogu only on legal grounds, since a proposal to the Supreme Court to declare a law unconstitutional on extra-legal grounds would be nonsense.
However, the second sentence of § 107(2) stipulates that if the Riigikogu again passes the law which was vetoed by the President of the Republic, unamended, the President of the Republic has two options: to proclaim the law or propose to the Supreme Court to declare it unconstitutional. The question of the meaning of these alternatives arises. If the President of the Republic could veto laws only on legal grounds, why should he or she have an opportunity to proclaim it on the "second round"? Why is the proposal to the Supreme Court not mandatory? According to one of the basic rules of legal interpretation, provisions of a statute should not be interpreted in a way that would make them senseless. Thus, the position of this paper is, that the President of the Republic can veto laws on extra-legal grounds as well14.
This right of veto, however, is not unlimited. Prof. Jüri Põld, Justice of the Supreme Court, has pointed out that the limitations are set forth, for example, by §81 of the Constitution, which contains the text of the oath of office of the President of the Republic15. The President swears, inter alia, to exercise the power entrusted to him or her in a just and impartial manner. This means, according to Põld, that a veto used on extra-legal grounds should be applied only in the general interest under extraordinary circumstances16. Rait Maruste, the Chief Justice of the Supreme Court, has suggested that the veto can be used also on political grounds, the important aspect being that such presidential resolution must be reasoned in order to enable the Riigikogu to react to it adequately17. Thus, there is no clear consensus on the extent of the possible grounds of the presidential veto. Historically, the President could veto laws passed by the parliament if the national interests so required18. Probably we can conclude that political reasons are permissible, but those should be reasons of general national interests, not of daily politics.
Three legal issues should be controlled by the President of the Republic when proclaiming a law:19
(1) whether the law conforms with the material legal provisions of the Constitution;
(2) whether the text submitted for proclaiming is authentic (i.e. is it the text adopted by the Riigikogu); and
(3) whether the procedural requirements set by the Constitution were adhered to by the Riigikogu when adopting the law20.
The President of the Republic cannot exercise control of constitutionality over laws passed by a referendum. Under §105(3) of the Constitution, the President of the Republic shall promptly proclaim such a law. The right to submit a bill to a referendum is vested in the Riigikogu;21 § 106(1) of the Constitution and §3 of the Referendum Act22 prohibit certain issues to be submitted to a referendum23. Holding of referenda is also prohibited under certain circumstances24. Consequently, the constitutional review of the laws passed by a referendum is possible only in the form of ex post control. De lege ferenda, it should, perhaps, be contemplated whether if it would not be reasonable to allow presidential control of constitutionality of the bills to be submitted to the referenda, before the referenda will take place. It could avoid useless and expensive referenda and the situation where enactment of unconstitutional law cannot be escaped. The Referendum Act provides for possible intervention by the Legal Chancellor in the case of attempt to submit an unconstitutional bill to referendum, but that will be discussed later.
An Act Amending the Constitution shall be proclaimed by the President of the Republic as well25, but the procedures concerning that are subject to separate regulation under Chapter XV ("Amendment of the Constitution") of the Constitution. Section 167 of the Constitution does not provide for a possibility of the President of the Republic to propose to the Supreme Court to declare the Constitution Amendment Act unconstitutional. Such a procedure would be, however, de lege ferenda, appropriate for ensuring the adherence to the procedure established by the Constitution itself for its amendment (questions of sufficient majorities, etc.)26. This would mean that the Constitution is protected against the legislature basically in the same way it is protected in regard to ordinary legislation - the Constitution sets forth certain rules of passing laws which must be adhered to by the parliament.
Another question is if the material content of the Constitution Amendments should also be subjected to constitutional review. I think that if the answer is "yes" in the case of adherence to the formal requirements, the other question, at least in case of Estonia, should be answered affirmatively, as well. The reason for such a conclusion is that the formal procedural requirements are inseparably connected with the content of the amendments. Section 162 of the Constitution provides that Chapter I ("General Provisions") and Chapter XV ("Amendment of the Constitution") of the Constitution may be amended only by a referendum; and according to § 168, an amendment of the Constitution regarding the same issue shall not be initiated within one year after the rejection of a corresponding bill by a referendum or by the Riigikogu. In both cases the question of whether a bill attempts to amend Chapters I or XV (the case of § 162), or whether a bill regards the same issue as another, rejected bill (the case of §168), may not be immediately clear. These restrictions definitely do not refer only to bills for "An Act Amending Section 3 of the Constitution" or to bills (in the case of §168) which have identical wording with the rejected bill. Thus, the material content of the amendment determines the procedure - if the Constitution can be amended in a...
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