Legislative Acts of Local Government Bodies and the Protection of Personal Rights and Freedoms

• Author: Vallo Olle
• Position: Lecturer of Constitutional and Administrative Law
• Pages: 67-74

Page 67

Vallo Olle

Lecturer of Constitutional and Administrative Law

Legislative Acts of Local Government Bodies and the Protection of Personal Rights and Freedoms

The problem posed by the author of the present article requires that we first turn to the Constitution of the Republic of Estonia¹. The idea of freedom is known to be the basic principle of Estonian statehood. Pursuant to the second postulate of the preamble of the Constitution, the people of Estonia, with unwavering faith and a steadfast will, wish to strengthen and develop a state, which is founded on liberty, justice and law. Pursuant to the aforesaid and § 10 of the Constitution, which establishes the principle of a state based on democracy, social justice and the rule of law, the general principles of law are valid in Estonia. As R. Maruste has noted, the former principle is directly connected to paragraphs 1 and 2 of § 1 of the Constitution, which stipulate that "Estonia is an independent and sovereign democratic republic", and that "the independence and sovereignty of Estonia are timeless and inalienable", and to § 3, which establishes the principle of legality as follows: "The powers of state shall be exercised solely pursuant to the Constitution and laws which are in conformity therewith. Generally recognised principles and rules of international law are an inseparable part of the Estonian legal system..."². Paragraph 1 of § 19 of the Constitution provides that everyone has the right to free self-realisation³. Thus, the general right to freedom is given the status of a subjective constitutional right. Pursuant to paragraph 2 of the same section, everyone must honour and consider the rights and freedoms of others and observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties⁴. Thus, the legislator has been given the right to restrict, by law, the right to freedom in accordance with the Constitution. Without engaging in a philosophical analysis of the idea of freedom, I would refer to only two documents, which are of fundamental importance in international law. The preamble of the Universal Declaration of Human Rights postulates that "... recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, ..."⁵. The preamble of the International Covenant on Civil and Political Rights also stresses that "... the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world...", and that "... these rights derive from the inherent dignity of the human person"⁶. Consequently, personal rights and freedoms are of natural law origin (jus naturale), and it is the function of positive law, primarily of the constitution and laws, to guarantee these rights and freedoms⁷. The catalogue of human rights and freedoms is, for example, included in the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "ECHR")⁸. The Riigikogu⁹ ratified the ECHR on 13 March 1996. The convention became internationally binding on Estonia on 16 April 1996¹⁰. There are no principal variances betweenPage 68Chapter II of the Estonian Constitution entitled "Fundamental Rights, Freedoms and Duties" and the catalogue of fundamental rights of the ECHR. As the fundamental rights enumerated in the ECHR and in the Constitution have enjoyed comparative analysis in legal literature,¹¹ and the present article is intended to stress somewhat different aspects, I will only refer to the fact that for Estonia the requirement of respect to human rights and freedoms springs from international legal instruments as well as from the preamble and several provisions of the Constitution¹².

Within the context of the present article it is essential to point to § 14 of the Constitution, pursuant to which the guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers, and of local governments [added emphasis]. Thus, the powers of state of Estonia are bound by the obligation to guarantee rights and freedoms. Section 3(2) of the Local Government Organisation Act (hereinafter "LGOA") corresponds to the said constitutional provision, as it provides, inter alia, that one of the principles on which a local governments is founded, is the mandatory guarantee of everyone's lawful rights and freedoms in the rural municipality and city¹³.Essentially the same obligation is contained in § 2(1) of the same Act, pursuant to which a local government is the right, authority and duty of the democratically formed bodies of power of a local government provided for in the Constitution, a rural municipality or city, to independently organise and manage local issues pursuant to law and based on the legitimate needs and interests of the residents of the rural municipality or city [added emphasis], and considering the specific development of the rural municipality or city¹⁴.

Subsection 155(1) of the Constitution stipulates that the units of local government are rural municipalities and towns. Pursuant to § 154 of the Constitution the local governments, which operate independently pursuant to law, shall resolve and manage all local issues. Duties may be imposed on a local government only pursuant to law or by agreement with the local government¹⁵. Article 3(1) of the European Charter of Local Self-government establishes, that local self-government denotes the right and the ability of local authorities within the limits of the law, to regulate and manage substantial share of public affairs under their own responsibility and in the interests of the local population¹⁶. Section 56 of the Constitution provides that the supreme power of state shall be exercised by the people through citizens with the right to vote 1) by electing the Riigikogu; 2) through a referendum. As we can see, the said provision does not include electing local government councils. Still, the people exercise the power of state by electing local government councils. Law literature considers it a generally recognised fact that local governments exercise state power (indirect state administration)¹⁷. The Constitutional Review Chamber of the Supreme Court has voiced the same view¹⁸. The fact that local government is specifically referred to, alongside with the legislative, executive and judicial powers in § 14 of the Constitution, is not accidental but rather indicates the importance, which the constituant pouvoir has attributed to local governments in guaranteeing rights and freedoms. The constitutional provisions of the European countries, which regulate the guarantee of personal (human) rights, usually employ the general notion of "public authorities" (e.g. Article 9(2) of the Spanish Constitution¹⁹), the name of the state (Article 4(2) of the Bulgarian Constitution²⁰), refer to the Constitution (Article 1(1) of the Finnish Constitution²¹), etc. There is no essential difference as compared to the Estonian Constitution.

Bearing in mind the classification of the basic functions of a legal order, the activities of a local government as a territorial corporation exercising public administration can be divided in two. A.-T. Kliimann, a famous Estonian administrative law scholar, relying upon A. Merkel, has put it as follows: "The functions of one group are fulfilled with the help of so called normative procedures, because the objective of such procedures is the creation of sets of norms. The functions of the other group are fulfilled with the help of such procedures, which are termed as factual or material, but also free of norms, because their objective is not the creation of norms but rather the creation or transformation of lawful factual conditions."²²

A local government is a democratic, decentralised and autonomous government. According to Kliimann, autonomous administration is the administration of all such corporate units, who have been attributed the right of self- regulation, which is manifested in the right to issue acts of general application. It goes without saying that an administrative unit must be able to exercise the administrative function in its material sense, i.e. to resolve the issues arising within its administration by legislation of specific application. Naturally, it must also be able to issue certain acts of general application. In order to be autonomous, the self-administrative unit's right to issue regulations must enable to issue praeter legem regulations, which have the same co-ordination level as the regulations of the central administration of the state²³. The power of local government to issue the statutes in its own affairs is an expression of its Satzungshoheit (right to issue regulations) immanent to the local self-government law and an essential prerequisite for legal concretising of fulfilment of local functions. As R. Stober, a German scholar of municipal law has noted, the right to issue regulations is an essential component of a local self-government²⁴. If a local government lacked the right to issue regulations, it would not be able to realise its constitutional status. The Administrative Law Chamber of the Supreme Court has even held that in issues, which fall within the exclusive competence of aPage 69council, it shall only issue regulations²⁵.

Consequently, under Estonian legal order, the rural municipality and town councils issue regulations as legislation of general application. In the capacity of legislation of specific application a council issues decisions and a government issues orders (§§ 7(1) and (2) of the LGOA)²⁶.

With their legislative activity the local governments guarantee the protection of personal (human) rights and freedoms only if they observe the provisions and the spirit of the Constitution. The following are examples to that effect.

Subsection 3(2) of the...