Estonian Constitutional System of Government

• Author: Kalle Merusk
• Pages: 2-9

Kalle Merusk

Estonian Constitutional System of Government

The Estonian Constitution establishes the principle of a state based on parliamentary democracy and the rule of law (I) characterised by the concept of the separation of powers (II), national sovereignty (III), republicanism (IV) and a unitary state (V). These principles have, in one way or the other, been dealt with in all the previous Estonian constitutions.

1. État de Droit

The 1920 Constitution emphasised the principle of a state based on the rule of law¹. One of its essential components was the acknowledgement of the system of fundamental rights of the person. Because of that the 1920 Constitution was one of the most democratic European examples of its time. The pertinent provisions of the Constitution corresponded exactly to the traditional fundamental rights of the period. The Constitution prescribed more than twenty basic rights: rights to security of a person (§ 8), inviolability of a dwelling place (§10) and the property (§24), confidentiality of the mail (§14), equality of everyone before the law (§6); freedom of religion and conscience (§ 11), thought (§13), movement and choice of residence (§ 17) and others. The part concerning fundamental rights in the 1920 Constitution was especially remarkable as it also contained explicit provisions for the protection of minorities. Thus, the right of minorities to establish autonomous institutions for national-cultural and social welfare purposes was guaranteed by the Constitution (§21). In regions where most of the residents belonged to an ethnic minority, the official language of the local government might be the language of a minority (§ 22). The Constitution also safeguarded the right to use German, Russian and Swedish in central state agencies (§23). On the basis of the these provisions, a law on cultural self-government of ethnic minorities was adopted in 1925². As to the protection of fundamental rights in the 1920 Constitution, the influence of the French Revolution and Déclaration des Droits de l'Homme et du Citoyen³ (adopted by the Constituent Assembly on 26 August 1789) has been observed. The fundamental rights guaranteed by the Estonian Constitution of 1920 were not unique in Europe. The Weimar Constitution of 11 August 1919 contained 57 articles on fundamental rights⁴. Most of the fundamental rights specified in the 1920 Estonian Constitution can be found in the catalogue of human rights of the Weimar Constitution: the ban on decorations and orders, freedom of choice of residence, inviolability of home, confidentiality of the mail, etc. But in addition, the Weimar Constitution also contained many fundamental rights the Estonian Constitution did not encompass: equal rights of men and women, the protection of the family and children, equal rights of illegitimate children, freedom of political opinion of officials, public defence of labour, etc.

The second Estonian Constitution (1938) introduced a number of amendments to the provisions on fundamental rights. It laid down a new specification according to which legal rights and duties of an individual emanated from his or her status as a member of a commonwealth (§8(2)). This reflected the more collectivist orientation of the 1938 Constitution⁵. The Constitution restricted many fundamental rights, including, for example, the right to security of person and freedom of speech. Where, according to the 1920 Constitution, the restriction of those rights was legitimised only by a decision of the court (§17), the 1938 Constitution enacted legal reservation to that effect (on the grounds and pursuant to procedure stipulated by the law - §13). With the help of legal reservation, freedom of assembly was restricted. But at the same time inviolability of the person's property was extended (§26). The same can be said about social rights. Section 25 of the 1920 Constitution was substituted by four additional sections: § 21 - the protection of the family; §24 - the protection of economic life; § 27 - the protection of labour; §28 - assistance of children and elderly people. In evaluating the chapter on fundamental rights of the 1938 Constitution, it can be concluded that as to the human rights incorporated in that chapter nothing essentially changed, at least to the disadvantage of an individual. In drafting the currently valid 1992 Constitution, great attention was paid to fundamental rights. International treaties on the protection of the latter rights, the European Convention on Human Rights (ECHR), as well as constitutions of democratic states were taken as a basis. The Constitution of the Federal Republic of Germany has had the greatest influence on our Constitution. Already the structure of the Constitution emphasises fundamental rights. Seven general provisions of Chapter I defining Estonia's independence, sovereignty (§1) and inseparability (§2(1)); the powers of state be bound by the Constitution and laws which are in conformity therewith (§3(1)); the requirements of separate powers (§4); the economical use of the natural wealth and resources (§5); the official language (§6) and the national colours (§7), are followed by a chapter on fundamental rights consisting of 48 sections which determine these rights. The position and scope of Chapter II, involving more than a quarter of the total 168 sections of the Constitution clearly indicate that fundamental rights are of great importance in the Constitution. One of the main principles of the Constitution postulates the equality of Estonian citizens and citizens of foreign states as well as stateless persons (§9). The Constitution has extended fundamental rights to legal persons in so far as this is in accordance with the general aims of legal persons and with the nature of such rights (§9(2)). The principle of equality and the prohibition on discrimination (§12) are also established by the Constitution. The rights and freedoms set out in the catalogue of fundamental rights of the Constitution do not preclude other rights and freedoms which arise from the spirit of the Constitution or are in accordance therewith, and conform to the principle of human dignity and of a state based on social justice, democracy, and the rule of law (§10). The constitutional provisions of Chapter II on social and economic rights are balanced and in conformity with the both corresponding Covenants of the United Nations and the ECHR together with its additional protocols. With regard to economic rights, § 32 of the Constitution postulates that the property of every person is inviolable and equally protected. Property may be expropriated without the consent of the owner only in the public interest, in cases and pursuant to procedure provided by law, and for fair and immediate compensation. The social aspect of property is established in the Constitution - it is prohibited to use property contrary to the public interest. According to the Constitution, everyone has the right to education (§37). The Constitution also guarantees intellectual property rights (§39), the right to the protection of health (§28) and others. The problems of the protection of national minorities are also dealt with. Pursuant to §49 of the Constitution, everyone has the right to preserve his or her national identity. In 1993, the Riigikogu passed the National Minorities Cultural Autonomy Act entitling a national minority to establish institutions of self-government in order to preserve its national culture. Comprehensive rights to establish cultural, educational or ethnic organisations and carry on custom are guaranteed by the Act⁶. It can be alleged that Chapter II of the Constitution a priori corresponds to the ECHR. International treaties also play an important role in the system of the protection of human rights. On 13 March 1996, Estonia ratified the ECHR without its additional protocol that concerned the abolition of the death penalty⁷. The latter was ratified on 18 March 1998. It is worth mentioning that at present Estonia has acceded to over 20 international treaties concerning the protection of human rights, including both United Nations covenants on human rights and the additional protocol to the first of these covenants.

Many states have established the primacy of fundamental rights as a constitutional principle in their constitutions. Although the Estonian Constitution does not expressis verbis prescribe that principle it can be inferred quite clearly from other principles of the Constitution, from its structure, competence of constitutional institutions and procedures. A direct reference to the supremacy of fundamental rights and their guarantees can be found in §11 of the Constitution providing that rights and freedoms may be restricted only in accordance with the Constitution and only situations necessary in a democratic society, and further where their imposition does not distort the nature of the rights and freedoms. The principle of the rule of law is an important component of a law-observing state.

The principle of the rule of law has been the main idea common to all three Estonian constitutions. One of its essential aspects is traditionally revealed in §3 of all these constitutions. If we analyse and compare the versions of that provision, it can be concluded that the wording of §3 of the 1920 Constitution has been retained with some minor amendments in the 1938 and 1992 Constitutions. Subsection 3(1) of the current Constitution provides that the powers of state must be exercised solely pursuant to the Constitution and laws that are in conformity therewith. This primarily means that the exercise of state powers - by the Legislature, the Executive and the Judiciary - is possible on the basis of the Constitution and laws that are in accordance with it. The relevant constitutional provision...