Referendum in the Estonian Constitution: Historical and Comparative Constitutional Aspects

Author:Ero Liivik
Position:Lecturer. Estonian Academy of Security Sciences
Pages:17-26
SUMMARY

1. Referendum typology and application in the world - 2. Referendum and citizen initiated referendum in Estonian law - 3. Application of direct democracy in Estonia - 4. Problems related to the referendum provisions of the Constitution - 5. Conclusions

 
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17
JURIDICA INTERNATIONAL XVIII/2011
Ero Liivik
Lecturer
Estonian Academy of Security Sciences
Referendum
in the Estonian Constitution:
Historical and Comparative Constitutional Aspects
The opportunities offered by and the limitations of direct democracy became important in constitutional
law in the past decade in connection with the enlargement of the European Union and especially in the
context of reforms in which different referendums have played a signi cant role.*1 This has also resulted
in the bulking up of literature dealing with the problems of direct democracy.*2 The application of direct
democracy is directly associated with the principle of subsidiarity. The principle of people’s sovereignty
mainly puts emphasis on the people as the bearer and source of the power of state and their role: the rights
of organising political power and determining its structure are vested in the people while such rights must
be linked with the legitimacy and will emanating from the people. It means, in particular, that the constitu-
tional power (pouvoir constituant) is vested in the people.*3 This is to be understood to be imperative—state
power may proceed solely from the people. Pursuant to §56 of the Constitution of the Republic of Estonia*4
(hereinafter referred to as the Constitution), the supreme power of state is exercised by the people through
citizens with the right to vote by electing the Riigikogu and through a referendum. At that, pursuant to
§162 of the Constitution, the provisions dealing with the fundamental principles and the procedure of their
amendment (Chapters I and XV) may be amended only by a referendum.
This article explores the position of referendum provisions in the Constitution and also, more broadly,
the subject of direct democracy in the context of Estonian constitutional law and in international compari-
son.
1 For example, the referendums on the Treaty establishing a Constitution for Europe in France and Holland in 2005; the
referendums held in 2008 and 2009 in Ireland on the rati cation of the Treaty of Lisbon. There were 24 referendums on
the European Union treaties and accession to the EU between 1998 and 2008.
2 Here the following sources can be cited: S. Binzer Hobold. Europe in Question: Referendums on European Integration.
Oxford: Oxford University Press 2009; M. Setälä, T. Schiller. Referendums and Representative Democracy: Responsiveness,
Accountability and Deliberation. Routledge/ECPR Studies in European Political Science 2009; Z. T. Pallinger, B. Kaufmann,
W. Marxer, T. Schiller. Direct Democracy in Europe. Developments and Prospects. Wiesbaden: VS Verlag für Sozialwissen-
schaften/GWV Fachverlage GmbH 2007; M. Qvortrup. A Comparative Study of Referendums: Government by the People.
Manchester University Press 2005; T. Schiller. Direkte Demokratie. Forschung und Perspektiven. Westdeutscher Verlag
2003. There is also an abundance of other articles. As regards Estonia, there is a signi cant monograph by Vallo Olle.
Kohaliku omavalitsuse teostamine vahetu demokraatia vormis: kohalik rahvaalgatus ja rahvahääletus (Exercising Local
Government in the Form of Direct Democracy: Local Citizens’ Initiatives and Referendums). Tartu Ülikooli Kirjastus 2002
(in Estonian).
3 M. Suksi. Bringing in the People. A Comparison of Constitutional Forms and Practices of the Referendum. Martinus Nijhoff
Publishers, Kluwer Academic Publishers 1993, pp. 16–28.
4 Eesti Vabariigi põhiseadus. – RT 1992, 26, 349; RT I 2007, 33, 210 (in Estonian).

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