LL.M., Deputy Legal Chancellor1
An Early Decision with Far-reaching Consequences
How the Parliamentary Prerogative, the Right to Good Administration and Judicial Activism Entered into the Estonian Legal Order
Adoption of the Constitution at referendum on 28 June 1992 and its entry into force on the following day started the process of the formation of constitutional institutions in the country. In autumn 1992, the Riigikogu and the President of the Republic were elected and the Government of the Republic assumed office. Constitutional review in the Supreme Court began in 1993. This is the first time in the history of the Republic of Estonia that the substantive constitutional review was implemented. In 2008, fifteen years shall pass thereof, which is a good impetus for a short mid-term review.
The object of this article is to analyse critically the relevance of one early decision of the Supreme Court on its subsequent practice and on the constitutional debate in Estonia . The selected decision is that of 12 January 1994, which could be called Operative Technical Measures I 2 and which is one of the most important and influential decisions in the practice of the Supreme Court. The case arose from typical tense relations in the beginning of the 1990s. On the one hand, the legislator and the government were obliged to solve quickly a number of different issues after the restoration of independence of the Republic of Estonia, which were the result of a new societal structure and economic relations. On the other hand, one of the most important messages of the new Constitution is that every individual has (fundamental) rights arising from the Constitution that are directed against the state and the state has corresponding obligations to every individual pursuant to the Constitution. The implementation of the Constitution was necessary in order for it not to become a stillborn baby as was the case with the Constitution of the Estonian SSR. Thus, the sacrifice that had to be made in this case was the young state's practical and urgent need to more effectively fight against organised crime in order to follow something more abstract and distant, the rightfulness or wrongfulness of which will only be revealed in the long term.
On 21 April 1993, the Riigikogu adopted the Republic of Estonia Police Act Amendment Act3. Part 2 subsection 4 thereof laid down:
To establish that until the adoption of an act laying down operative surveillance activity, the security police officers may temporarily use operative technical measures to perform their duties only at the written consent of a member of the Supreme Court appointed by the Chief Justice of the Supreme Court.
The Chancellor of Justice, who has the sole right to initiate reactive abstract constitutional review of an act of parliament in Estonian legal order, disputed this act in the Supreme Court. On 12 January 2004, the Constitutional Review Chamber of the Supreme Court passed a decision by which the given rule was repealed as of the entry into force of the decision.
In the reasons to the decision, the Chamber first defines the term operative technical measure: "In forensic science, the term 'operative technical measures', or 'operative surveillance measures' in the meaning of technical measures and operations, which enable to covertly interfere in the use of an individual's rights and freedoms, i.e., without the individual's knowledge, for the purposes of information collection."
The Chamber further admits that surveillance measures restrict several fundamental rights: "By allowing the security police officers to implement operative technical measures, the act provides the possibility to limit the rights and freedoms listed in the Constitution, including the rights laid down in §§ 26, 33 and 43 regarding the inviolability of private and family life, the inviolability of the home and confidentiality of messages sent or received by other commonly used means." The Chamber thereafter declares the fundamental rights subject to restrictions as a point of principle, thereby paving the way to its later practice where the principle of proportionality is decisive: "The possibility to limit the aforementioned rights and freedoms is prescribed both by the Constitution and international instruments of law." This is followed by the reasons, the most important part of which follows: "According to lawfulness as the generally accepted principle of (international) law and the principle laid down in § 3 of the Republic of Estonia Constitution, fundamental rights and freedoms may only be restrictedpursuant to law. The procedure for restricting the rights and freedoms determined and published by law and publicity enable discretion and ensure the possibility to avoid abuse of power. However, lack and obscurity of a thorough legislative regulation leaves a person without a right to informative self-determination to choose a line of conduct and protect oneself. [...] [T]he valid standards for implementing operative technical measures are insufficient and deficient from the point of view of the protection of fundamental rights and freedoms which in such an important field encompasses a danger of arbitrariness and distortion of use of fundamental rights and freedoms and restrictions contrary to the Constitution. It has not been specified what operative technical measures specifically mean. [...] The circle of subjects entitled to implement operative technical measures, cases, conditions, procedure, guarantees, control and supervision and liability remains unspecified. [...] Therefore, in adopting subsection 4 in part II of the Police Act Amendment Act, the Riigikogu has disregarded § 3 of the Constitution according to which state power shall be exercised solely pursuant to the Constitution and laws which are in conformity therewith and violated§ 14, which obliges the legislative power to ensure everyone's rights and freedoms. [...] The Riigikogu should have established the specific cases and detailed procedure for the implementation of operative technical measures and the related possible restrictions of rights itself instead of delegating the latter to security police officers and the justice of the Supreme Court. What the legislator is entitled or obliged to do according to the Constitution cannot be delegated to the executive power, not even temporarily or on the condition of a possible judicial review. Thus, subsection 4 of part II of the Police Act Amendment Act is also contrary to § 13 (2) of the Constitution as insufficient regulation in establishing restrictions to fundamental rights and freedoms shall not protect everyone against arbitrary action by state power."
This decision is important for three reasons. Firstly, the Supreme Court hereby formulates the principle of parliamentary prerogative. Secondly, in this decision the Supreme Court implements the general right to organisation and procedure for the first time (§ 14 of the Constitution), although not yet explicitly stating this. Thirdly, the decision by the Supreme Court entails that in addition to a limitation too intense, the legislator can also violate the Constitution by omission, whereby the constitutionality of both can be reviewed by the Supreme Court.
The principle of parliamentary prerogative is vested in the first sentence of § 3 (1) of the Constitution, according to which state power shall be exercised solely pursuant to the Constitution and laws which are in conformity therewith.The principle of parliamentary prerogative is also expressed by § 104 (2) of the Constitution, which lays down a list of laws that can be passed only by a majority of the membership of the Riigikogu. If a law can be passed only by a majority of the membership of the Riigikogu, it can therefore be only passed by the Riigikogu and thus the decision is reserved to the parliament.
In its decision of 14 January 1994, the Supreme Court formulates the principle of parliamentary prerogative: "What the legislator is [...] obliged to do according to the Constitution cannot be delegated to the executive power, not even temporarily or on the condition of a possible judicial review." In 1998, the same idea is repeated: "The Riigikogu may not delegate solving a matter, which must be solved by law pursuant to the Constitution to the Government of the Republic." 4 In its later decision, the Supreme Court first explains the principle of parliamentary prerogative by the principle of separation and balance of powers and thereafter by the principle of legal certainty.
In the practice of the Supreme Court in the field of fundamental rights, the principle of parliamentary prerogative has been expressed in three ways: declaring unconstitutional a law that delegates power to the executive but lacks the essential substance of a delegating norm 5 , a government regulation that restricts fundamental rights passed without legal basis 6 as well as a government regulation that restricts fundamental rights exceeding the parliamentary delegation of power7. It is true that the separation of the latter two cases may prove to be difficult in case of a generally...