Docent of Administrative Law University of Tartu, Estonia
Settlement of Disputes Related to Election Rules for Local Government Councils: Judicial Practice of the Estonian Supreme Court
According to the Constitution of the Republic of Estonia dated 1992 1 and the European Charter of Local Self-government as ratified by Estonia in 1994 2 (the ECLSG), our local government system derives from the base model of representative democracy. Hence, the existence and functioning of a representative body of the local government, elected by local people - that is, a local council - is an obligatory element under the Constitution. The first amendment of the 1992 Constitution relates to the elections of local government councils; made in 2003, it extended the term of authority of the representative body of a local government from the previous three years to four years, and a constitutional basis was provided for altering administrative-territorial organisation for the period between regular municipal elections3. The municipal elections of a local government as a representative body of a constitutional institution are regulated by the Local Government Council Election Act 4 (LGCEA), which, as a constitutional act, required the votes of a majority of the membership of the Riigikogu for its entry into force(Constitution the second sentence of § 104 (4)).
Since the restoration of independence in 1991, five local government elections have taken place in Estonia , held in 1993, 1996, 1999, 2002, and 20055. For the first two of them, the parliament established a new elections act 6 , the third elections were held on the basis of the previous Elections Act (as amended), and the fourth and the fifth elections were organised on the basis of the same Elections Act of 2002 (to which also several substantive amendments have been made)7. During the above period, the Supreme Court (its Constitutional Review Chamber (CRC), or the Supreme Court en banc (SCeb)) has made several decisions concerning the constitutionality of the election rules for local government councils. Further to this, the decisions of the Supreme Court on the election rules of the Riigikoguare in many ways relevant to the municipal elections and vice versa (the same democratic principles of the right to vote apply both in parliamentary and in local government council elections), so that if we confine ourselves to the judicial practice regarding the constitutionality of the election rules of local government councils, the scope we have carved out for this discussion is to some extent artificial, which can be put down to the choice of the subject and the volume of the paper. This article discusses only the decisions that the highest national court has made on the election rules for local governments. In other words, the paper examines how the highest national court has, in decisions concerning the constitutionality of the election rules for local government councils within the framework of the constitutional review proceedings 8 , interpreted the democratic principles of the suffrage and furnished with content the autonomy of the local government as well as the principles for the representativeness of its representative body. Here it is important to specify that we will not discuss the decisions of the Constitutional Review Chamber of the Supreme Court by which the complaints and protests concerning the decisions and activities of the Electoral Committee have been settled - in other words, by which the Supreme Court has under § 2 10) of the Constitutional Review Proceedings Act 9 (CRPA) exercised its authority10.
The third paragraph of § 149 of the Constitution provides that the Supreme Court is also the court of constitutional review. According to the CRPA as currently in force, the Constitutional Review Chamber, or Supreme Court en banc,settles the matters placed within the competence of the Supreme Court by that act; this is set forth in § 3 (1). A similar regulation was contained in the previous CRPA (in § 9), adopted in 199311.
In relation to the election rules, we have to keep in mind that the Supreme Court has two different spheres of competence. Thus, the Supreme Court settles, inter alia,petitions to verify the constitutionality of legislation of general application or the failure to adopt it (CRPA § 2 1)) as well as appeals and protests concerning the decisions and activities of the Electoral Committee (CRPA § 2 10)). While the former sphere of competence was described also in the earlier CRPA (§ 4 (1)), the situation has changed where the latter is concerned. The CRPA as applicable from 1993 to 2002 did not provide for the settlement of election complaints and protests by means of constitutional review proceedings12. As already noted in the introduction, this paper will not discuss the decisions of the Supreme Court that relate to election complaints and protests.
A reasoned petition for verifying the constitutionality of the LGCEA as legislation of general application may be submitted to the Supreme Court by the President of the Republic (Constitution § 107), the Chancellor of Justice (Constitution § 142), a local government council 13 (CRPA § 4 (2)), or the Riigikogu(CRPA § 4 (2))14. The court shall initiate proceedings by forwarding the decision or ruling to the Supreme Court (CRPA § 4 (3)).
The institute of electoral law is known to represent a set of constitutional provisions that forms an important part of constitutional law, an important institute thereof, and governs such important and politically highly sensitive social relationships as are created upon the election of state and local government bodies. On account of this, virtually all decisions in this area have also provoked rather active discussion in society. The issues of official language, citizenship, and suffrage constitute the main body of issues that have given rise to great political tension in Estonia so far 15 and that often have been accompanied by heightened international attention as well as political attacks from Russia . The Constitution as in force today does not comprise the suffrage as a fundamental right in its chapter on fundamental rights and freedoms (Chapter II), but it has been presented in §§ 57, 60, and 156 of the Constitution (the chapters entitled 'People', 'The Riigikogu', and 'Local Government', respectively). As it is a central institute of constitutional law, the Constitution (in § 104 second sentence (4)) also prescribes that the relevant legal regulation for electing local government shall be established by a constitutional act - the LGCEA16.
The first paragraph of § 156 of the Constitution provides that the representative body of a local government is the council, which shall be elected in free elections for a term of four years. The period of authority of a council may be shortened by an act as a consequence of a merger or division of local governments or the inability of the council to act.
The elections shall be general, uniform, and direct. Voting shall be secret (as specified in subsection 1) Similar democratic principles of the suffrage are prescribed by the ECLSG (Article 3 (2)), Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms 17 (Article 3), and the International Covenant on Civil and Political Rights 18 (Article 25¹ b). The legislative power has attempted to restrict the majority of these democratic principles of the right to vote by using various arguments (enhancement of political liability, etc.) when establishing election rules contrary to the Constitution. Problems have frequently occurred also in relation to the timing of the enactment of the election rules as such.
The Supreme Court has considered it very important to observe the principle of vacatio legis when making important amendments to the election rules. The court has declared unconstitutional those activities as the result of which the election rules are, immediately before the elections, amended such that certain political powers can benefit from them to the detriment of others.
On 12 May 2005 , the Riigikoguadopted the RiigikoguInternal Rules Act Amendment Act, which was to enter into force on 17 October 2005 and abolish the prohibition, established in 2002, pursuant to which a member of the Riigikogu could not at the same time be a member of a rural municipality or town council. After the President of the Republic had refused to proclaim this act, the Riigikogu passed it unamended on 8 June that year. Here it is necessary to note that, in Estonia , the elections of local government councils are held on the third Sunday of October. Hence, the Riigikogu considerably amended the election rules three months before the elections of local government councils. The Constitutional Review Chamber of the Supreme Court (CRCSC) separately discussed in its decision on matter 3-4-1-11-05, of 14 October 2005 19 , whether the amendment made contained a reasonable term for its implementation. Although considering it impossible to say what would constitute a reasonable term for making amendments to the election rules, the CRCSC took the...