Referendum in the Estonian Constitution: Historical and Comparative Constitutional Aspects

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

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 signif‌i 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 ratif‌i 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 signif‌i 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).