Dear reader

Author:Märt Rask
Position:Chief Justice of the Supreme Court of Estonia
In 1991, the Republic of Estonia was restored as a legal successor to the republic
created in 1918. This wish that was felt to be the only correct and possible way—to
invoke legal continuity—was so strong that it was considered to re-establish the pre-
war constitution of 1938 as the basis of constitutional order. It should be mentioned
here that this was the option preferred by several states. However, in Estonia it was
understood in serious legal and political discussions that the constitution must take
account of the current realities of society, of the development of law during the 50
years that had passed, re ect the spirit of the times and be forward-looking in its
views. A new constitution was created as a result of a public understanding agree-
The 1992 constitution created a totally different order both from the previous
constitutions of the Republic of Estonia and from that of the Estonian SSR that had
been in effect to that date. Instead of a presidential republic, the state was moulded
into a parliamentary republic. The state acquired a simple organisational framework:
classical branches of powers, unicameral representation of the people, a head of state
with merely suf cient powers, a legal chancellor called to review constitutionality as
an institution distinctive of Estonia. The simplicity of the organisational structure
of the state is vividly illustrated by the judicial power created by the constitution—a
uni ed, three-instance system with at least one opportunity to appeal where all cases
start from the rst instance without an exception.
Thus the constitution created a state that was easily perceivable by the people
and as such was easy to accept. The constitution is emphatically about the focus on
the people, that the state must serve the people and not the other way round. The
list of fundamental rights is open and the number of freedoms protected by them
is virtually unlimited. In implementing the fundamental rights, the courts chose to
amalgamate the provisions of the constitution with the European convention on the
protection of human rights and fundamental freedoms and the charter of fundamen-
tal rights of the European Union. There cannot be an instance that a person has less
freedoms and rights under the Estonian legal order than provided for in the conven-
tion or charter.
What is also so simple is how a person can protect himself or herself against
abuses of power. Within this clear-cut and independent judicial system we described
above there are means to review the constitutionality of the state power. In a court,
a person can invoke directly the rights granted to him or her by the constitution. All
courts are required to disregard a law that is in violation of the basic rights.
Proportionality is the most potent keyword that the constitution has rooted in
the political culture, law-making and state administration. At the same time, the
principle that those that are equal must be treated equally and those that are not are
to be treated unequally is becoming a given in social culture.
It was in part a reaction to the persecution of people by the Soviet Union on
the grounds of belonging to a national minority (i.e., Estonian among others) that
the constitution of 1992 is emphatically centred on the Estonian nation. The pre-
amble sets out the preservation of the Estonian nation, language and culture through
the ages as one of the goals of the state. On the other hand, the current constitu-
tion ensures the rights of national minorities to preserve and develop their national
An abundance of experts also believe that the current constitution is charac-
terised by being puissantly protective of classical sovereignty. Section 1 of the

To continue reading