The Principle of Separate and Balanced Powers in Estonian Constitutions

• Author: Heinrich Schneider
• Pages: 35-49

Heinrich Schneider

The Principle of Separate and Balanced Powers in Estonian Constitutions

Introduction

There are two incentives for considering the problems of separate and balanced powers. Firstly, the desire to determine why, during the whole period of Estonian independence, neither in the Constitutions nor in practice, was a suitable solution to separate and balanced powers found. Secondly, there are two anniversaries of considerable importance for the Republic of Estonia: the presently valid Constitution¹ was adopted by a referendum held five years ago on 28 June 1992, and next year in 1998, the Republic of Estonia will celebrate its 80th anniversary. The issue of power is inherently related to and unites both events.

The historical status of Estonian statehood is characterised best of all by the fact that only 27 of those 80 years are marked by actual independence. For more than half a century, Estonians had to live under the occupation and annexation of foreign authorities. The recent years of independence have also been full of changes and searching. This has been manifested in frequent amendments and updates to the Constitution, the basic constitutional statute of the state. The 1992 Constitution of re-independent Estonia is already the fourth in sequence (since 1920) and soon after its adoption, dissatisfaction with it was voiced. So far, constitutional development has progressed with ups and downs. The basic sources of dissatisfaction are the issues of an imbalance of powers and the method of presidential election. Also, other deficiencies have become evident in the course of implementation of the Constitution, such as the lack of a clear system, theoretical ambiguity, and solutions that are discrepant, incomplete and can be interpreted in various ways.

In order to assess the situation soberly and to avoid thoughtless resolutions attempting to do away with deficiencies of the Constitution, the Government of the Republic, on the proposal of the Constitutional Commission of the Riigikogu² set up a commission of experts on 14 May 1996 for legal expertise on the Constitution of the Republic of Estonia. This commission was given the status of a governmental commission and its tasks were to: 1) analyse the conformity of the Constitution with the standards of the European Union; 2) study the possibilities for a more precise determination of competencies of constitutional institutions; and 3) draft proposals for eliminating constitutional deficiencies³. Thus, a state order was issued for research into legal problems pertaining to the Constitution and its implementation.

The task of analysing theoretical and legal solutions concerning the separation and balance of powers in all four Constitutions and the problems of their implementation, especially disorders in the balance mechanism, gave rise to the need for developing a pertinent cognitive arsenal.

Methodological Starting Points

The lack of a theoretical foundation as a background will inevitably affect the specific research, and the results obtained will be of a casual nature and disconnected. Therefore, methodological starting points for the consideration of systems were chosen to cement the research. The theory of systems, the systematic approach to the objects of research and a systematic orientation in scientific research in general have become widespread during recent decades. A systematic approach has shown its right to existence and proved successful especially in the analysis of complex phenomena of multiple constituents and in the synthesis of knowledge. A systematic approach as such is necessary in researching the phenomenon of separate and balanced powers which has many facets and is gradually becoming more and more complicated, and in resolving problems related to the issue.

The theory of separate powers has mainly been associated with the names of John Locke and Charles de Montesquieu, although the elements of this concept could be observed already in ancient Greece, particularly in the works of Aristotle and Plato. The theory of separate powers in its traditional form has been accused of being limited in scope and of taking a superficial approach, by not extending further than relations between the central powers of a state. After World War II, the theoretical literature more frequently speaks of improving the theory of separate and balanced powers by including relations on a vertical line. At first, attention was laid on relations between federal states and their constituent confederate states and cantons, but later it was found that even unitary states are in need of a vertical arrangement of relations. These are relations between central authorities and citizens, stateless persons, parties, bodies of state administration (local state administration) and local governments, as well as relations between the state and civilian society as a whole. This approach gives the theory of separate and balanced powers a wider scope of implementation and a more specific form of expression, whereby it becomes a systematic whole embracing the life of a state. These issues have, to a smaller or greater extent, been dealt with in constitutions, laws and other legislative acts, but frequently enough proceeding from different goals. To cognise the whole is essential to makers and implementers of norms, administers of justice and to those who exercise supervision. Thus, to join the horizontal and vertical relations of separate and balanced powers is, above all, of methodological importance, enabling one to better comprehend the relation of the functions of separate powers to constitutional institutions, gaps and "frictions" in legislative regulation, and to embody the issues to be resolved into a logical system.

In addition to the inclusion of vertical relations, an attempt has been made to modernise and extend the theory of separate powers in two more ways. Firstly, theoretical literature makes frequent mention of a state based on the rule of law consisting of parties, groups, justice and society⁴. These concepts though, cannot overshadow the basic ideas of separate powers and a state based on the rule of law. Due to their critical nature, they have helped to enrich the concepts of separate powers and a state based on the rule of law, and assisted in their applicability under new conditions. Secondly, constitutional concepts of several states have started to support the idea that the list of separate powers should be extended. In Latin America for example, in addition to the traditional powers, a fourth or electoral power is discussed, that is, a body of electors or a tribune of electors who resolve disagreements between candidates during elections, as well as disputes between members of parliament. Sometimes such a body of electors is called the creative power. Often, the press and the presidential power are observed to be a fourth power. It is possible that in this context, the de facto absolute presidential power of the Russian Federation, Byelorussia, Tadzhikistan and Kyrgyzstan come to mind. During the discussions of the bill of the 1987 Constitution of Nicaragua, five powers were referred to including the creative and supervising power. The 1976 Constitution of Algeria adds even a sixth power: a political power manifested in one single ruling party⁵.

To analyse and assess these and several other attempts to modernise the theory of separate powers, it is not sufficient to be confined to considering only the horizontal and vertical systems of relations between separate powers of a state. A wider background is required: one in which state power is viewed as a component of society as a whole⁶. A phenomenon can be interpreted appropriately only if it is not analysed separately from the whole but as a part of the whole to which it belongs. Emergence of a system is manifested in the fact that the characteristics of the system cannot be reduced to the characteristics of its components. The fact of whether emergence of a system has been taken into account or not becomes the touchstone of whether an approach can be considered systematic or not.

Proceeding from these requirements and given the above attributes, the mechanism of separate and balanced powers determines the scope and overall structure of the issues to be embraced by a constitution, that is, the way a democratic regime is to be reflected in a constitution. At the same time, the outlines of the state and civilian society become clearer, as well as how in the earlier Constitutions the issues of separate and balanced powers have been resolved, and what heritage means today and whether this has been considered in the Constitution of the newly re-independent Estonia. Five years is a sufficiently long period to study how the Constitution has been implemented and to ascertain, on the basis of experience, what should be avoided.

The First Constitution: Building the Groundwork for a Dominant System of Powers

Inclusion of the issue of separate powers in the first Constitution had its antecedents which were related to building an independent Estonian state within complex historical conditions. A brief digression into these initial events will enable a better understanding of the successive heritage.

The past history begins instantly after the overthrow of tsarist power during the February revolution of 1917, when Estonians started, by legal means through the Russian central government, to pursue the goal of setting up an autonomous administrative unit on Estonian territory. On 31 March 1917, public organisations of Estonia presented the Russian provisional...