The Estonian Constitution establishes the principle of a state based on parliamentary democracy and the rule of law (I) characterised by the concept of the separation of powers (II), national sovereignty (III), republicanism (IV) and a unitary state (V). These principles have, in one way or the other, been dealt with in all the previous Estonian constitutions.
The 1920 Constitution emphasised the principle of a state based on the rule of law.*1 One of its essential components was the acknowledgement of the system of fundamental rights of the person. Because of that the 1920 Constitution was one of the most democratic European examples of its time. The pertinent provisions of the Constitution corresponded exactly to the traditional fundamental rights of the period. The Constitution prescribed more than twenty basic rights: rights to security of a person (§ 8), inviolability of a dwelling place (§10) and the property (§24), confidentiality of the mail (§14), equality of everyone before the law (§6); freedom of religion and conscience (§ 11), thought (§13), movement and choice of residence (§ 17) and others. The part concerning fundamental rights in the 1920 Constitution was especially remarkable as it also contained explicit provisions for the protection of minorities. Thus, the right of minorities to establish autonomous institutions for national-cultural and social welfare purposes was guaranteed by the Constitution (§21). In regions where most of the residents belonged to an ethnic minority, the official language of the local government might be the language of a minority (§ 22). The Constitution also safeguarded the right to use German, Russian and Swedish in central state agencies (§23). On the basis of the these provisions, a law on cultural self-government of ethnic minorities was adopted in 1925.*2 As to the protection of fundamental rights in the 1920 Constitution, the influence of the French Revolution and Déclaration des Droits de l’Homme et du Citoyen*3 (adopted by the Constituent Assembly on 26 August 1789) has been observed. The fundamental rights guaranteed by the Estonian Constitution of 1920 were not unique in Europe. The Weimar Constitution of 11 August 1919 contained 57 articles on fundamental rights.*4 Most of the fundamental rights specified in the 1920 Estonian Constitution can be found in the catalogue of human rights of the Weimar Constitution: the ban on decorations and orders, freedom of choice of residence, inviolability of home, confidentiality of the mail, etc. But in addition, the Weimar Constitution also contained many fundamental rights the Estonian Constitution did not encompass: equal rights of men and women, the protection of the family and children, equal rights of illegitimate children, freedom of political opinion of officials, public defence of labour, etc.
The second Estonian Constitution (1938) introduced a number of amendments to the provisions on fundamental rights. It laid down a new specification according to which legal rights and duties of an individual emanated from his or her status as a member of a commonwealth (§8(2)). This reflected the more collectivist orientation of the 1938 Constitution.*5 The Constitution restricted many fundamental rights, including, for example, the right to security of person and freedom of speech. Where, according to the 1920 Constitution, the restriction of those rights was legitimised only by a decision of the court (§17), the 1938 Constitution enacted legal reservation to that effect (on the grounds and pursuant to procedure stipulated by the law – §13). With the help of legal reservation, freedom of assembly was restricted. But at the same time inviolability of the person’s property was extended (§26). The same can be said about social rights. Section 25 of the 1920 Constitution was substituted by four additional sections: § 21 – the protection of the family; §24 – the protection of economic life; § 27 – the protection of labour; §28 – assistance of children and elderly people. In evaluating the chapter on fundamental rights of the 1938 Constitution, it can be concluded that as to the human rights incorporated in that chapter nothing essentially changed, at least to the disadvantage of an individual. In drafting the currently valid 1992 Constitution, great attention was paid to fundamental rights. International treaties on the protection of the latter rights, the European Convention on Human Rights (ECHR), as well as constitutions of democratic states were taken as a basis. The Constitution of the Federal Republic of Germany has had the greatest influence on our Constitution. Already the structure of the Constitution emphasises fundamental rights. Seven general provisions of Chapter I defining Estonia’s independence, sovereignty (§1) and inseparability (§2(1)); the powers of state be bound by the Constitution and laws which are in conformity therewith (§3(1)); the requirements of separate powers (§4); the economical use of the natural wealth and resources (§5); the official language (§6) and the national colours (§7), are followed by a chapter on fundamental rights consisting of 48 sections which determine these rights. The position and scope of Chapter II, involving more than a quarter of the total 168 sections of the Constitution clearly indicate that fundamental rights are of great importance in the Constitution. One of the main principles of the Constitution postulates the equality of Estonian citizens and citizens of foreign states as well as stateless persons (§9). The Constitution has extended fundamental rights to legal persons in so far as this is in accordance with the general aims of legal persons and with the nature of such rights (§9(2)). The principle of equality and the prohibition on discrimination (§12) are also established by the Constitution. The rights and freedoms set out in the catalogue of fundamental rights of the Constitution do not preclude other rights and freedoms which arise from the spirit of the Constitution or are in accordance therewith, and conform to the principle of human dignity and of a state based on social justice, democracy, and the rule of law (§10). The constitutional provisions of Chapter II on social and economic rights are balanced and in conformity with the both corresponding Covenants of the United Nations and the ECHR together with its additional protocols. With regard to economic rights, § 32 of the Constitution postulates that the property of every person is inviolable and equally protected. Property may be expropriated without the consent of the owner only in the public interest, in cases and pursuant to procedure provided by law, and for fair and immediate compensation. The social aspect of property is established in the Constitution – it is prohibited to use property contrary to the public interest. According to the Constitution, everyone has the right to education (§37). The Constitution also guarantees intellectual property rights (§39), the right to the protection of health (§28) and others. The problems of the protection of national minorities are also dealt with. Pursuant to §49 of the Constitution, everyone has the right to preserve his or her national identity. In 1993, the Riigikogu passed the National Minorities Cultural Autonomy Act entitling a national minority to establish institutions of self-government in order to preserve its national culture. Comprehensive rights to establish cultural, educational or ethnic organisations and carry on custom are guaranteed by the Act.*6 It can be alleged that Chapter II of the Constitution a priori corresponds to the ECHR. International treaties also play an important role in the system of the protection of human rights. On 13 March 1996, Estonia ratified the ECHR without its additional protocol that concerned the abolition of the death penalty.*7 The latter was ratified on 18 March 1998. It is worth mentioning that at present Estonia has acceded to over 20 international treaties concerning the protection of human rights, including both United Nations covenants on human rights and the additional protocol to the first of these covenants.
Many states have established the primacy of fundamental rights as a constitutional principle in their constitutions. Although the Estonian Constitution does not expressis verbis prescribe that principle it can be inferred quite clearly from other principles of the Constitution, from its structure, competence of constitutional institutions and procedures. A direct reference to the supremacy of fundamental rights and their guarantees can be found in §11 of the Constitution providing that rights and freedoms may be restricted only in accordance with the Constitution and only situations necessary in a democratic society, and further where their imposition does not distort the nature of the rights and freedoms. The principle of the rule of law is an important component of a law-observing state.
The principle of the rule of law has been the main idea common to all three Estonian constitutions. One of its essential aspects is traditionally revealed in §3 of all these constitutions. If we analyse and compare the versions of that provision, it can be concluded that the wording of §3 of the 1920 Constitution has been retained with some minor amendments in the 1938 and 1992 Constitutions. Subsection 3(1) of the current Constitution provides that the powers of state must be exercised solely pursuant to the Constitution and laws that are in conformity therewith. This primarily means that the exercise of state powers – by the Legislature, the Executive and the Judiciary – is possible on the basis of the Constitution and laws that are in accordance with it. The relevant constitutional provision establishes that every essential decision be made on the basis of laws and not discretion. Other provisions of the Constitution back the principle of the rule of law. For example, the Constitution prescribes that laws must be passed in accordance with the Constitution (§ 102); the Government of the Republic issues regulations and orders, and the ministers issue regulations and directives on the basis of and for the implementation of law (§§87(6) and 94(2) correspondingly); the courts administer justice in accordance with the Constitution and the laws (§ 146). The Constitutional Review Panel of the Supreme Court has substantiated the principle of the rule of law in many decisions. In its decision of 12 January 1994 (invalidating paragraph 4 of Part II of the Act Amending the Police Act of the Republic of Estonia), the Supreme Court observes that ‘pursuant to the principle of the rule of law as a generally recognised principle of international law and in accordance with the principle established by §3 of the Constitution of the Republic of Estonia, the fundamental rights and liberties may be restricted only in accordance with the law.’ Later on, the Supreme Court points out that pursuant to §§11, 26, 33 and 43 of the Constitution, the fundamental rights and freedoms may be restricted only in accordance with the Constitution and in the cases and pursuant to procedure provided by law. The Riigikogu itself should have laid down in which concrete cases and according to which concrete procedure operational-technical special measures be applied, it also should have established the consequent possible restrictions on the rights instead of delegating these tasks to the officials of the Security Police and justices of the Supreme Court. What the Legislature is entitled and obliged to do under the Constitution may not be delegated to the Executive, not even temporarily or on condition that it be reviewed by the court.*8
The same principle that the fundamental rights and freedoms may be restricted only by a valid legislative act was stressed in another decision of the Constitutional Review Panel of the Supreme Court on the very same date.*9 Thus, the Supreme Court has taken a stand that fundamental rights and freedoms as provided by the Constitution may be restricted only by valid legislation enacted by the parliament, i.e. by a formal law. The principle of the rule of law also presumes a sufficient range of guarantees for the protection of the individual’s rights against the arbitrary action of the authorities. Pursuant to §15(1) of the Constitution everyone whose rights and freedoms are violated has the right of recourse to the courts. Administrative courts began operation in Estonia in 1993. Their main aim is to protect the subjective public rights of the persons. Individuals, groups of persons, legal persons and the State are all accountable for violation of rights and freedoms. If an unlawful action has caused moral and material damage to a person, he or she has the right to compensation (§ 25). Section 15 of the Constitution guarantees everyone the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional. Pursuant to § 15(2) the courts must observe the Constitution and declare unconstitutional any law, other legislation or procedure that violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution. The practice of administrative courts shows that they do not only review the conformity of governmental and ministerial regulations with the Constitution, but also with other laws. With the ratification of the ECHR, Estonia has also acknowledged the jurisdiction of the European Court of Human Rights which offers additional guarantees for the protection of fundamental rights in the Republic of Estonia.
In conclusion, it can be said that the Estonian legal system offers legal guarantees for the protection of fundamental rights and freedoms. In the case of an infringement of these rights and freedoms, the person is provided with legal protection, which is exercised by both the general courts (including the administrative courts) in the form of a concrete or incidental control, and the Constitutional Review Panel of the Supreme Court (the Constitutional Court). The jurisdiction of the European Court of Human Rights is supplementary to the mechanism. The principle of the separation of powers to be dealt with in the next section is the cornerstone guaranteeing fundamental rights and freedoms.
The problem of separate powers has been topical during the whole period of Estonian independence. The 1920 Constitution was criticised because it could not balance the powers of the government and the parliament. One of the deficiencies reproached was the supremacy of the parliament. The 1938 Constitution went to the other extreme. The powers shared between the President, parliament and the government were imbalanced as the autocratic President enjoyed the majority of power.*10 To a considerable degree, it was caused by the general crisis in European parliamentarism of the time. Due to the negative historical experience, the problem of the separation and balancing of powers was given considerable attention when the 1992 Constitution was drafted. With regard to separation of power, legislative, executive and judicial powers are clearly exercised by distinct institutions to ensure the sanctity of individual rights. The principle is established by § 4 of the Constitution, which prescribes that the activity of the President of the Republic, the Government the Riigikogu, and the courts is organised on the principle of separate and balanced powers. The principle in question is established in Chapter I of the Constitution as a so-called privileged norm, which may be amended only by referendum. The Section contains the following principles:
(1) there are three constitutional state powers – the legislative, the executive and the judicial powers – in the Republic of Estonia;
(2) state powers of the Republic of Estonia are functionally and organisationally (as organs) separated;
(3) state powers of the Republic of Estonia are balanced, i.e. they are equal in the exercise of their functions;
(4) state powers of the Republic of Estonia are interdependent.
It should not be concluded from the wording of § 4 that the Constitution constitutes the four powers of the state: the legislative, the executive, the presidential and the judicial powers. On the grounds of analysis of the other provisions and competency ascribed to the relevant institutions and their mutual relations, only one conclusion can be drawn – the President does not constitute a separate state power, he or she forms a branch of the executive state power. In analysing the above-mentioned provision, it should be borne in mind that by higher state organs we mean, first and foremost, their functions in a material sense, i.e. the main actions they are entitled to perform (the main function). The word ‘activities’ refers to the exercise of functions in a formal sense, i.e. proceeding from pertinent competence-norms of the Constitution. Thus, it is not possible to talk about a system of absolutely separate functions. For the implementation of the corresponding main function, the holder of that function is constitutionally vested with a certain number of other functions. Thus, we can say that the main functions of state are to a certain extent interwoven and interdependent. The principle of separation of power is specified and realised in those parts of the Constitution, which establish the competence of organs of state power. Section 59 of the Constitution provides that legislative power rests with the Riigikogu; § 86 states that executive power is vested in the Government of the Republic; and §146 prescribes that justice must be administered solely by the courts. The Government of the Republic does not refer only to the cabinet of ministers, but means the exercise of entire executive power, i.e. governing and administration. Actually either the emergence of parliamentary absolutism or autocratic forms of government may present the greatest danger to the separation of power.
In the realisation of the principle of separate powers, most problems arise in connection with the relations between the Legislature and the Executive. As the Constitution establishes and, thus, constitutionally legitimises the functional separation of powers, it is not possible to derive from the principle of democracy an ‘absolute parliamentary privilege’, i.e. the unlimited right of the parliament to interfere in the competence of other powers including those of the Executive. The Constitution vests the constitutional bodies of state, which are independent of the Riigikogu, with comprehensive and varied decision-making powers. In a parliamentary system of government, the government is responsible to the parliament and controlled by the latter, but the parliament has no decision-making authority with regard to governing. The Executive can exercise its powers solely pursuant to the Constitution and laws, which are in conformity therewith (as stipulated in §3 of the Constitution); one of its main tasks is the implementation of laws (§87(3) of the Constitution). Consequently, it can be said that the Executive may not act by on own discretion, its acts are determined by the legislative function. The Constitutional Review Panel of the Supreme Court has referred to that in its decision of 20 December 1996. The Court held that pursuant to the Constitution, the basis for the constitutional and democratic exercise of public power is that it be founded on law (Preamble) and principles of separate and balanced powers (§4), democracy (§ 10) and the rule of law (§ 33(1)). In order to follow these principles and for the protection of everyone’s fundamental rights and liberties, the legislative and administrative functions must be separated and explicitly defined, and the exercise of these functions must be carried out in accordance with the Constitution and recognised principles of legal theory. Ambiguity of competence or an excess of authority prejudice general legal certainty and endanger both the exercise of state power, as provided for in the Constitution, and everyone’s rights and freedoms. Under the aforementioned sections and principles of the Constitution, the Executive is generally empowered to issue only intra legem regulations (regulations specifying laws). The Executive may issue a general act only in cases where the relevant rule of delegation or of authority is incorporated in the law. This rule specifies the administrative body competent to issue the act, and the explicit purpose, content and scope of the regulative authority.*11 Political control over the Executive is exercised by the parliament. To that effect, the following possible mechanisms should be mentioned:
(1) the right of interpellation. This is the right of the members of the parliament to submit questions and interpellations to the government or its members. Pursuant to §74 of the current Estonian Constitution, a member of the Riigikogu has the right to raise questions to the Government of the Republic and its members. The enquiries must be answered at a session of the Riigikogu within twenty session days;
(2) the right of resolution. This is the right of the parliament to appeal to the government or its member to carry out or avoid some action. Such appeals are not legally binding. Subsection 65(11) of the Constitution empowers the Riigikogu to present statements, declarations and appeals to the people of Estonia, other states and international organisations. Thus, the Constitution does not expressis verbis foresee such a possibility although, in principle, it cannot be totally excluded and in the latter case we can talk about an appeal which is not legally binding. The Riigikogu has not used that option in practice. Rather has it invoked Subsection 103(1) of the Constitution in order to influence the activities of the Government. The latter Subsection provides that the Riigikogu has the right, on the basis of a resolution made by a majority of its members, to propose to the Government of the Republic that it initiate a draft desired by the Riigikogu;
(3) the right of investigation. This is the right of the parliament to set up investigation committees with the aim to examine the activities of high officials of the executive. The Constitution does not mention any special investigation committee of the Riigikogu, but under § 17(1), the Riigikogu does have the right to form committees, and pursuant to §17 of the Riigikogu Procedure Act, the parliament has set up both provisional and special committees.*12 For example, a provisional committee of the Riigikogu on the implementation of the Anti-corruption Act was formed in 1995. For the implementation of its tasks, the committee or its authorised members were vested with the rights to demand that relevant documents be presented to it or them by institutions, enterprises and organisations, to summon public servants and private persons and to demand written and oral explanations from them;*13
(4) a vote of no confidence. Pursuant to §65 13) of the Constitution, the Riigikogu has the right to express no confidence in the Government of the Republic, the Prime Minister or individual ministers. The expression of no confidence must have a ground (§ 97 of the Constitution), not necessarily a legal one, in fact, all sorts of grounds are possible;
(5) the passage of the budget of all state revenue and expenditure (§ 115 of the Constitution).
The Constitution also provides a legal mechanism through which the Executive may exert influence on the Riigikogu. For example, pursuant to §103 of the Constitution, the Government has the right to initiate laws and as practice shows, most of the draft laws (75-80%) are submitted to the Riigikogu by the Government. If the vote of no confidence is expressed in the Government or the Prime Minister, the Riigikogu has to consider the fact that on the proposal of the Government the President may dissolve the Riigikogu (§ 97(4) of the Constitution). The Government may also bind the passage of a draft it introduces to the Riigikogu to the issue of confidence (§98(1) of the Constitution). Regardless of the constitutional guarantees, the Legislature and the Executive tend to become more interrelated, especially in the case of a majority government formed on the basis of political coalitions. This is a trend apparent in many parliamentary states, Estonia included. In such a situation, certain political parties or political groups may have control over the activities of both the parliament and the government. It results in the concentration of power in the hands of groups that, according to the Constitution, cannot wield state power. To some extent these tendencies are unavoidable, but that in its turn presupposes the existence of an effective mechanism of administrative and constitutional jurisdiction which could guarantee the functioning of both powers within the constitutional limits.
The independence of the courts is one of the most essential components of the separation of power. The Judiciary should be separated distinctly from both the Legislature and the Executive and independent of them to the extent that it can exercise control over them and guarantee the impartial and lawful solution of disputes. Constitutional means play a special role in safeguarding the independence of the courts. The Judiciary is unitary and inseparable, as defined by the Constitution. Its organisational independence from other powers stems from §146 of the Constitution, according to which justice is administered solely by the courts. The courts are independent in their activities and administer justice in accordance with the Constitution and the laws. Justice is administered by the courts formed by law and in accordance with the structure provided within the Constitution (§§ 148 and 149). Proceeding from the idea expressed in §147, it can be said that the courts as organs with jurisdictional functions consist of judges to whom the task to administer justice is entrusted. Thus, the legal status of judges is of great importance in guaranteeing the independence of the Judiciary. The independence of judges is ensured by the Constitution in both an objective and personal sense. For the administration of justice, the judges must rely solely on the Constitution and the laws, they are not bound by any other prescriptions, including those of the Executive. Objective independence also means that the judges must be politically independent (membership of a political party is banned) as well as not holding any other elected or appointed office, except in the cases prescribed by law (§ 147 (3) of the Constitution). Consequently, the Constitution allows some exceptions by law. Of course, the Legislature has to bear in mind the principle of separation of power above all (i.e. a judge may not be a member of parliament or work in an institution of the Executive). Constitutional means for guaranteeing personal independence are the following: judges are appointed for life (§147(1)), judges are removed from office only by a court decision (§ 147(2)), the legal status of judges and guarantees for their independence are provided only by law (§ 147(4)). For example, the salary scheme of judges is regulated solely by law that precludes the possible influence by the Executive, etc. After the 1993 court reform, a question arose as to what extent the courts (the court system) were to be self-administered, and whether the administration of courts by the organs of justice (Ministry of Justice) would influence the independence of judges. The discussions since then have revealed compelling arguments for and against revision of the system. At present, the Ministry of Justice administers the courts (the internal division of labour between the courts as to cases is decided by the courts themselves), save the Supreme Court that is independent in this respect. Under the Constitution, the courts exercise control over both the Legislature and the Executive. Control over the Legislature is implemented in the following manner:
(1) the Supreme Court, by way of constitutional review, decides whether the laws or other legislative acts conform to the Constitution, and on that basis determines their validity (§ 152(2) of the Constitution);
(2) the court will not apply any law or other legislation that is in conflict with the Constitution (§152(1) of the Constitution);
(3) the authority of a member of the Riigikogu may be terminated prematurely by the Supreme Court if the latter decides that he or she is incapable of performing his or her duties for an extended period (§ 64(2) 4) of the Constitution).
In connection with the guarantees for the Executive and for the rights and freedoms of the individuals, judicial control over the Executive plays an important role. The Constitution provides the following means:
(1) the administrative courts may review the legality of the activities of the Executive in guaranteeing the rights and freedoms of individuals (§15; § 148 1));
(2) the courts may review the constitutionality of legislative acts and activities of the Executive (§ 15; §152(1));
(3) the Supreme Court may decide that the President is continuously incapable of performing his or her duties (§83(1));
(4) the Supreme Court may permit the Chairman of the Riigikogu, in the capacity of the President, to declare extraordinary elections to the Riigikogu and to refuse to promulgate the laws.
At the same time, the Judiciary is not entirely isolated from the influence of other powers. The Judiciary is most influenced by the legislative function. Under the Constitution, the Legislature can influence the courts in the following way:
(1) by legislative activity (§ 65 1));
(2) by passing the state budget (§ 65 6));
(3) by appointing the Chief Justice and justices of the Supreme Court to office (§§150(1) and (2)).
The Constitution also establishes the mechanisms by which the Executive can have certain effects on the courts:
(1) by preparing the draft of the state budget and implementing the state budget (§87 3) and 5));
(2) by influencing court activity in areas unconnected with the substantive administration of justice, through independent supervisory institutions like the State Audit Office and the Legal Chancellor (§ 133 2); §139(3));
(3) in the appointment of judges to higher office by the President (§ 150(3));
(4) by preparing draft laws (Clause 87 4)).
On the basis of the constitutional regulation it can be said that relations between the Judiciary and the Legislature as well as with the Executive are considerably limited. The administration of justice as a public function is especially carefully isolated from other functions and complies with the principle of a state based on the rule of law.
The constitutional principle of sovereignty is established in § 1(1) of the Constitution stating that Estonia is an independent and sovereign republic wherein the supreme power of state is vested in the people. First and foremost, it means that the utmost legitimation of any state power is the will of the Nation. The principle of national sovereignty has been incorporated into all of the three Estonian constitutions. The current Constitution has literally retained the wording of the 1938 Constitution in this respect. The corresponding wording in the 1920 Constitution is different. §1(1) of the 1920 Constitution ends with the words: wherein the state power is in hands of the people. In spite of these literal differences, one and the same idea has been borne in mind. The principle of national sovereignty primarily accentuates the Nation as the wielder and source of state power, and its role – i.e. the people are vested with the right to organise and determine the structure of political power and this process must be connected with the legitimation and will originating from the people. This foremost means that the Nation enjoys the constitutional power (pouvoir constituant). The wording of the pertinent provision of the Constitution must be understood as an imperative – state power may originate only from the people. The Nation is and will be the wielder of state power even if, for the exercise of state power, it relies on the Legislature, the Executive and the Judiciary. The Nation exercises its power in different forms as stipulated by the Constitution.
A separate chapter (Chapter III) of the Constitution is dedicated to the Nation as a wielder of state power. It is worth mentioning that the pertinent chapter was incorporated also in the Constitutions of 1920 and 1938. Pursuant to § 56 of the current 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. Chapters I and XV of the Constitution may be amended by a referendum (§ 162). The Riigikogu may submit to a referendum a draft to amend the Constitution, other drafts or national issues whereat issues regarding the budget, taxation, financial obligations of the state, ratification and denunciation of international treaties, the declaration or termination of a state of emergency, or national defence may not be put to a referendum (§106). The decision on a referendum to be held rests with the Riigikogu. In 1992, the forms of the exercise of state power by the people caused rather vivid discussions during the drafting of the present Constitution. Many experts, for example, Professor I. Rebane from the University of Tartu, were of opinion that the Constitution should also establish popular initiative.*14 The 1920 Constitution was taken as the basis prescribing that by way of a popular initiative, 25 000 citizens entitled to vote had the right to make a proposal that a law be passed, amended or declared invalid (§ 31). The position that was later fixed in the Constitution, was explained at the Constitutional Assembly by the fact that the right to initiate legislation or draft laws rested with any member of the Riigikogu, and, in case the society faced a problem of major importance, there would surely be at least one elected member of the Riigikogu who raised it as a draft law.*15 As to the limitations to hold a referendum, it was mentioned that a referendum differently from a popular inquiry offered certain possibilities to manipulate with the opinion of the people. The experience gained during the earlier period of Estonian statehood proved it clearly because the precondition for getting to know the opinion or decision of the people on some matter is that the questions put to a referendum were reasonably divided, meaning at least two-three-four, rather few variants which could be answered firmly, either ‘yes’ or ‘no’. The draft Constitution under discussion stuck to the possibility to hold a referendum in two exceptional cases and these concerned the amendment of the Constitution (although not to the full extent, but by making principled amendments) and the problem of the Estonian border.*16
The Estonian Constitution treats democracy as representative democracy supplemented by some direct democratic elements, for example, by a referendum. The implementation of the latter is restricted by two stipulations. Firstly, by a circle of questions put to a referendum and secondly, by the fact that the parliament decides on the holding of a referendum (§65(2) of the Constitution). Representative democracy in the meaning of the Estonian Constitution expresses foremost the idea that only a representative body – the Riigikogu – elected by citizens with the right to vote is legitimised to exercise state power with the support and consent of the people. Representative democracy is the realisation of the principle of the national sovereignty in a constitutionally organised state. The members elected to the Riigikogu as a parliamentary representative body of the people represent the whole Nation, and pursuant to the Constitution they are not bound by their mandates (§ 62).
The Estonian language version of the Constitution does not use the term ‘sovereignty’, although the content of §1 actually means it in both national and international aspects. Other provisions of the Constitution also stress the idea of sovereignty. Thus, for example, according to §123(1), the Republic of Estonia may not conclude international treaties which are in conflict with the Constitution; pursuant to § 3(1), the powers of state may be exercised solely in accordance with the Constitution and laws which are in conformity therewith. Proceeding from that, no other legislative act than the Constitution can be of the overriding authority in the Estonian legal order. As the Constitution does not expressis verbis foresee the possible exercise of sovereignty by international organisations and their institutions, prior consent of the people for the exercise of it at the supranational level is required. Commenting on the wording of §1 of the draft Constitution (which has been preserved in the current Constitution) in the Constitutional Assembly, the head of the drafting committee L. Hänni observed: “Such a provision in § 1 of the Constitution would mean that Estonia’s independence and sovereignty were alienable only by way of amending the Constitution. As Chapter I may be amended only by a referendum, then alienability of Estonia’s independence and sovereignty automatically means it be supported by the people by way of a referendum.”*17 The problem has become topical because of Estonia’s aspirations to get the accession to the European Union. On 31 March 1998, negotiations with the six new candidate states, including Estonia, began in Brussels. If Estonia wants to join the European Union, it has to amend its Constitution in order to create a legal constitutional basis for joining the European Union and preclude possible conflicts between European Union law and the Estonian Constitution.
The republican form of government has been fixed in all Estonian Constitutions or, in other words, Estonian statehood has not used any other form of government. Pursuant to §1(1) of the current Constitution, Estonia is a democratic republic. In approaching that constitutional principle, the state can be analysed in either a narrower or broader meaning. The former does not include the whole statehood, i. e. the whole society. The state in a narrower sense can be opposed to fundamental rights, etc. Thus, for example, §13 of the Constitution treats the state in a narrower meaning by saying that everyone has the right to the protection of the state and of the law and that the law protects everyone from the arbitrary exercise of state authority. The state in a broader sense of the word means the unitary whole of authorities (res publica) and the interests of the people (res populi). The Estonian Constitution apparently bears in mind the state in a broader sense of the word, meaning a legally organised association or unity of fundamental rights and freedoms as well as administrative relations. Such a unity corresponds to the tradition of the republican form of government.
Pursuant to the Constitution, Estonia is not only a republic but a democratic republic. It should be mentioned here that neither the 1920 nor the 1938 Constitutions used the notion ‘democratic republic’. They only used the word ‘republic’ – Estonia is an independent and sovereign republic. The provisional draft of the present Constitution did not contain the attribute ‘democratic’, it was added in the course of deliberations. In the context of the Constitution, a democratic republic can be analysed as an association of the Nation and state power wherein the Nation is the cornerstone of public government. It forms the higher organs of the state, exercises control over them and influences their activities.
Pursuant to § 2(2), Estonia is politically a unitary state. § 2(1) provides that the land, territorial waters and airspace of the Estonian State are an inseparable and indivisible whole. This principle also means that, according to the Constitution, the Republic of Estonia cannot contain autonomous national-territorial units. The same idea has been pointed out by the Constitutional Review Panel of the Supreme Court in its decisions of 28 June and 6 September 1993 in connection with the attempts of Narva and Sillamäe City Councils to establish such units. The Supreme Court pointed out to this effect that the establishment of national-territorial autonomy was not an issue of local but of state interest and it had to be decided in the provided manner. Therefore, the decision to hold a referendum on the question of national-territorial autonomy did not fall within the competence of local governments and was in conflict with §154(1) of the Constitution. Section 50 of the Constitution prescribes that national minorities have the right, in the interests of national culture, to establish self-governing agencies in accordance with conditions and procedures provided by the National Minorities Cultural Autonomy Act. The Constitution does not foresee national-territorial autonomy.*18