Relations Between State Bodies in Implementing Constitution

• Author: Heinrich Schneider
• Pages: 10-24

Heinrich Schneider

Relations Between State Bodies in Implementing Constitution

Introduction

The people of Estonia adopted the present Constitution by a referendum held on 28 June 1992¹. The six years that have passed since then is a period sufficient to consider how the Constitution has been implemented, the activities of state bodies deserving of praise and of criticism, the stronger and the weaker aspects of the Constitution, and the possible solutions and measures to ensure further development.

As part of the 5^th anniversary of the Constitution an international conference was held in Tallinn in 1997, and in May 1998 the 22^nd Gathering of Estonian Legal Scientists took place, organised jointly by the Estonian Association of Jurists and the Estonian Academic Law Society. Both events were devoted first and foremost to constitutional issues. For the last two years these issues have also been debated by a governmental committee for legal expertise of the Constitution, set up on 14 May 1996, on the proposal of the Constitutional committee of the Riigikogu. It is understood that the analysis of the Constitution must not ignore issues related to its implementation. Separate implementation problems of the Constitution have been dealt with in specialist literature, but so far this has not been a separate area of study to be analysed as a whole. Every-day experience, though, indicates more and more clearly that we have reached a stage where, without understanding the whole, solutions offered for concrete issues become scattered, incoherent and ineffective.

Proceeding from the above considerations the following will mainly concentrate on the problems related to the implementation of the Constitution. Initially it is not possible and not even necessary to embrace everything and to go into details; instead we should first establish how the basic concepts and principal solutions of the Constitution have become rooted and exist in practice. Attention will be paid on the one hand to the role and activities of and relations between the state bodies of re-independent Estonia on the basis of the Constitution as the ultimate legal act, and on the other hand to establishing the efficacy of the system as the regulator of both legal and social activity. Thus, we have to deal with a complex problem, as the powers of state are exercised not only pursuant to the Constitution but also pursuant to laws which are in conformity therewith, as is appropriate for a rule-of-law state, and thus both law creation and law realisation, as well as rule creators and implementers should be evaluated.

To tackle such problems and tasks requires us to understand the methodology to be employed. The systematic approach chosen to analyse the efficacy of the Constitution has proved itself in the evaluation of complex phenomena. The system treats the implementation process of the Constitution as a dynamic management system with two subsystems, namely the governing and the governed subsystems. In social systems such subsystems are called the subject and the object of governing systems. Within this model the state bodies that arrange the implementation of the Constitution form the governing subsystem or the subject, and implementers and the implementation results of the Constitution in the form of legislation and objective social reality are the governed subsystem or the object. Direct connection in the form of the Constitution gives information to the implementers about what has to be done, and through feedback information is submitted from the subjects about the results of the realisation of the Constitution. As in the case of feedback in general, the research is related to such concepts as "goal" and "result". For the control centre of the system the objective is the Constitution that shows what to do and what to achieve, but in the study of realisation the same goal becomes a criterion on the basis of which the actual results can be assessed².

1. Creation of a Legal System: Difficulties and Achievements

Initial state. Every beginning is difficult. The same holds true of establishing the legal system of re-independent Estonia. The theoretical literature contains many studies of legal order, legal systems and systems of legislative acts, as well as analyses and comparative studies of legislation³, whereas only a few are devoted to how to create a legal system and the methodological grounds for the legislative process. This can be explained by the fact that the conditions and possibilities for the creation of a legal system vary in different countries that have gained independence, and thus it is more difficult to draw generalisations.

We did have some advantages, namely a previous experience of independence, and as aspirations for regaining independence date back to 1988, pre-constitutional legislative acts and constitutions had been drafted before liberation⁴. It can be claimed that the Estonian people were psychologically ready for the liberation, although the moment of liberation itself was unexpected. Anyway, there was no doubt that the building of a legal system should start with the Constitution. After some debate, a decision had been reached that it was necessary to formulate a new Constitution, as the contents of the 1938 Constitution were in many respects inappropriate to the changed realities of 1992. It is worth mentioning that legislation was implemented to address the needs of the time irrespective of the lack of a formal constitution. Some of these acts, such as the Courts Act and the Status of Judges Act⁵, adopted on 23 October 1991, served as models for drafting Chapter XIII of the Constitution, entitled "The Courts", and are still in force albeit with a few amendments made to the texts.

In its own way the Constitution set forth the basis for the creation of a legal system. It

(1) recognises the priority of the Constitution and laws over other legislation (§ 3(1));

(2) specifies the types of acts the state bodies are to issue and the legal force of such acts (§ 65(1); § 87(6); §§ 109 and 152);

(3) enumerates the laws which develop the constitutional order of the state, which are known in theory as constitutional acts or, in some states, as organic acts (§ 104);

(4) specifies the time, procedure and conditions for adopting and promulgating laws (§ 104(1) and (2); § 105; §§ 107-110).

Concepts. On the basis of these constitutional provisions it is possible to form three types of systems, which have been referred to in theoretical literature. These are: a legal system, a system of legal acts and a legal order. All three are characterised by the fact that they contain legal norms which are objectively in force and which have been graded according to their force.

Differences arise firstly in whether a system was designed on the basis of content or form, on legal norms or legal acts containing these norms. The system of legal acts is built on the attribute of form. As the Constitution differentiates legal acts according to their legal force, the possibility of hierarchical grading of legal acts within the system of legal acts is also preserved. According to H. Kelsen, the founder of dogmatic normativism, legal order is a system of legal norms. Accordingly, the essence of legal order has to be explained through the nature of legal norms. His claim that the whole is reflected by its parts and that the parts must have the characteristics of the whole⁶ sounds rather modern. Perhaps it would be more precise to emphasise that those who comprehend the whole are capable of knowing its parts, whereas those who know all parts, even in detail, do not necessarily know the whole. This is because there is more to a systematic whole than the mere sum of its components, it has integral qualities. H. Kelsen's conclusion, though, was logical: as a legal order is a coercive order (Zwangsordnung), a legal norm is also a coercive norm (Zwangsnorm)⁷.

Considering that both legal system and legal order constitute systems of legal norms, we have to find additional criteria to differentiate between the two. One criterion could be the initial basis of the system, the first link of legitimacy. The latter is gradually becoming more topical due to the fact that social organisation is becoming more and more complex. This starting point can be within or without a system. A legal system as a systematic whole is self-regulating and thus an external starting point is excluded.

Conversely, H. Kelsen's model provides for a mystical fundamental norm (Grundnorm), also known as a primeval norm (Ursprungsnorm) and resides above all legal norms. Supporters and critics of his views have tried to unravel the meaning of a fundamental norm, but until now the concept has remained but hypothetical. According to H. Kelsen a fundamental norm creates an authority, whose demands and expressions are binding. Thus: behave as the monarch, the president or the parliament tells you to behave⁸. This does not give any additional information about the nature of the norm. Rather, it nurtures a conviction that this is not a norm of a valid objective law. It sounds more like a divine commandment from outside the system.

Consequently, the difference between the foundation of a legal system and a legal order lies in the fact that in the former it can only be within the system whereas in the latter it may originate both within and without the legal order. An external starting point directly indicates restrictions on independence. For example, when Estonia belonged to the former Soviet Union, it had a legal system in its own right, but its bases of legislation regulating the most important spheres were not inherent of the system.

The concept of a legal system or legal order possessing an internal foundation needs some clarification. As a rule, a Constitution is...