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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

The Principle of Separate and Balanced Powers in Estonian Constitutions

Heinrich Schneider
pp. 35-49

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 deficiencies.3 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 society.4 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 party.5

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 whole.6 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 government with a memorandum to this effect and a provisional plan for the administration of the country on an ethnographic basis. On 12 April 1917, the Russian provisional government issued a decree concerning the administration of an Estonian province (guberniya) and the provisional organisation of self-government. This decree and its implementation resolution of 5 July 1917 set up an independent administrative state of Estonia with clearly determined boundaries. This included the Estonian province and the northern part of the Liivimaa province (as they were at that time), namely Tartu, Võru, Viljandi, Pärnu and Saare counties.

This is how Estonia as an administrative unit obtained a clearly determined territory populated mainly by Estonians. At the same time, the population was fixed and from a law of nations aspect, it could be considered a nation with the right of self-determination. This autonomy gave extensive rights to arrange local administrative matters by decree. The autonomy enabled Estonia to set up its own establishments and offices and to govern their activities, arrange relations between people and between the state and community bodies, and to levy taxes and economic obligations. In the words of A.-T. Kliimann, the right of decree enabled the Estonian country and people to form a peculiar autonomous corporation administered by the community, which entirely excluded Russian state power from every sphere. This meant that at least in administrative matters, the Estonia of those times expressed the will of its own and not that of the Russian central government.7

The highest representative body of communal Estonia was a 42-member Maanõukogu (National Council), elected by county on 7 July 1917. At first, no representatives from towns were elected. The National Council elected an executive body, the Maavalitsus (National Government). The Province Commissar of the Russian provisional government with his two assistants formed a connecting link between Russian state power and communal Estonia.

The first session of the National Council took place on 14 July 1917. While a draft plan on future autonomous administration and the text of a greeting to be sent to the Russian provisional government were discussed, different perspectives on the issue of building an independent state arose. Although recognition of the idea of an independent state was the manifestation of the will of the people's representatives, realisation of the idea did not become topical. However, the course of events at the Riga front, the feats of Russian soldiers in Estonia and the coming to power of the Bolsheviks, and the usurpation of power of local governments, all contributed to the maturation of the idea of transformation to independent statehood. Thus, on 28 November 1917, the National Council passed a resolution on supreme power.8

This resolution of the National Council was the very first act of independent statehood in which the Council declared itself the sole depository of supreme power in Estonia, whose decisions and prescriptions were obligatory until the meeting of the Constituent Assembly. The Constituent Assembly was elected directly by democratic suffrage with the task of creating definitively the legislative and administrative powers of the country.

Considering the actual political situation, the National Council decided that when it is not convened, the executive of the Council, or the Committee of Elders together with the National Government would be competent to take and publish decisions and prescriptions with the aim of regulating the urgent tasks of everyday public life. This right was soon needed, as immediately after the decision was taken, the Bolsheviks dispersed the National Council forcing it to suspend its activities for a year. The National Government was dispersed on 3 December 1917, but it continued to work “underground”.

In order to operatively resolve issues of survival between the offensive German troops and retreating Bolsheviks, the Committee of Elders of the National Council on 19 February 1918 decided to set up a three-member Committee to Establish Estonian Independence. The Committee was vested with the right to exercise state power in Estonia until normalisation of the situation. K. Päts, J. Vilms and K. Konik were elected as members of the Committee. On 24 February 1918, the Committee formed the first provisional government. On the same date, the Manifesto To All Peoples of Estonia was published, which declared Estonia a sovereign democratic republic.9

Thus, according to the so-called three element theory (people, territory and effective power), the Estonian state was formed. The National Council Resolution on Supreme Power constituted a new legal situation which brought about large political changes to the existing legal order by cutting through the connections with higher Russian power, and transformed communal autonomy into independent statehood. Therefore, it is important to emphasise that this decision of the National Council constitutes the initial link in the chain of legitimisation. On the basis of general competence, the Committee to Establish Estonian

Independence was formed, which in its turn gave life to a provisional government and issued the Manifesto To All Peoples of Estonia. Several academics and social figures have related foundation of the Estonian state to this manifesto and thus, Estonian independence is considered to have started as of 24 February 1918. The author agrees with A.-T. Kliimann who stated that for the emergence of statehood, the manifesto was not of a constitutive or creative character, but was a declarative state act. However, it is true that the manifesto itself recognised the continuity of supreme power, referring to the Committee to Establish Estonian Independence set up before 24 February 1918 and of the provisional government formed by it. The latter recognised prior state acts only to the extent that they were in conformity with the decision of 28 November 1917. This clearly indicates the absolute continuity of 24 February 1918 with political events prior to the manifesto10 and, therefore, the decision of the National Council of 28 November 1917 has been called a pre-constitution.

Statehood had to be fixed by a domestic statute of supreme legislative power, that is, a constitution. Pursuant to the decision of the National Council, this was to be the task of a democratically elected Constituent Assembly. The first elections were not successful. In January and February of 1918, elections to the Constituent Assembly took place upon agreement between different political groupings and according to the Election Act proclaimed by the majority. Since the Bolsheviks received far fewer votes than what they had hoped (35%), they declared the elections invalid. Another round of elections were held on 5, 6 and 7 April 1919. They were based on a general and universal right to vote by direct and secret ballot on the principle of proportionality. Persons over 20 years of age, of either sex, had the right to vote. Since the National Council was elected indirectly, the Constituent Assembly was the first directly elected representative body of the Estonian people.

The Constituent Assembly began work on 23 April 1919. Although its main function was to draft and establish a constitution, it was also responsible for the exercise of state power. The Estonian National Council declared itself to be the highest seat of power in the state until the convention of the Constituent Assembly. The tense situation domestically and in foreign relations did not permit the separation and balancing of powers issue to be addressed. Consequently, raising this issue was wholly delegated to the leadership of the National Council and the Council of Elders together with the National Government who delegated it to the Committee to Establish Estonian Independence who in turn delegated it to the provisional government. In light of all this, K. Päts, leader of the provisional government, stated on behalf of the government at the opening meeting of the Constituent Assembly, that the state proxy given to the provisional government would, given the turmoil of events, be returned to the Constituent Assembly as the source of state power, and that the government would resign.

This announcement by the leader of the provisional government caused concern for the Constituent Assembly regarding how the resignation of the government and the formation of a new government should be established. Legislation by the National Council which placed the cornerstones for Estonian state independence and laid the foundations for some of the distinguishing features of its political organisation, did not deal with popular representation or issues dealing with the relationships among governing powers. In other words, the separation and competence of powers had not been determined yet. The Constituent Assembly had unlimited possibilities for the creation of a constitution and thus proceeded from the concept of pouvoir constituant. At the same time, its legal attributes and competence were rather unclear, as its polyfunctionality extended from legislation and executive activities to the organisation of the administration of justice. Proceeding from the underlying ideological requirement of a state based on the rule of law where relations between those who make norms and those who are to implement them must be mediated by legal means and where the law must be binding not only on those who must obey it, that is mainly individuals, but first and foremost on the maker of the norms, it was decided to pass a statute which would be in force during the time the Constituent Assembly operated until the constitution took effect.

A pertinent draft, constituting one of the models of the Constitution of the Republic of Estonia, was elaborated by a preliminary commission presided over by the Chairman of the National Council, which embraced representatives of the parties belonging to the Constituent Assembly (one from each) before the representative body was ever convened. When this draft was discussed at the second meeting of the Constituent Assembly, the relationship between the representative body and the government was the primary topic of discussion. The authors were guided by the Swiss model in drafting the relationship between the representative body and the government. Pursuant to this model, full power was vested with the representative body as the representative of people's sovereignty. It not only had legislative but also governing power. The Chairman of the representative body was to represent the state in foreign relations and the government was to be subordinated to the representative body, which was to exercise supervision over government activities and, furthermore, was empowered to give the government prescriptions and orders. Moreover, the government was not at all considered to be a separate power, but was viewed as a commission of the people's representatives.

An opposite view was held predominantly by the representatives of the People's Party. In principle, they supported the separation of powers, in that, they recognised the need to give the government independence in its activities under the supervision of the people's representatives. Basically, they opposed the right of the representative body to give “prescriptions and orders”, and especially the solution in the draft according to which the Chairman of the representative body, not the leader of the government, was to be the representative of the state.

The Constituent Assembly made its choice on 4 June 1919, adopting the draft based on the Swiss model prepared by the preliminary commission, in the capacity of a law entitled the “Provisional Organic Law of the Republic of Estonia”.11 Real life soon proved that the ideas and models adopted from other cultures and democracies did not take root and bear the expected fruit. The Bolshevist parties openly declared that the governmental system which had been adopted through the Provisional Organic Law, had proved totally inappropriate. It was already in October of 1919 that the Constitutional Commission of the Constituent Assembly, which had been set up on the same day as the Provisional Organic Law was adopted, made a proposal to the Constituent Assembly to amend the Provisional Organic Law by strengthening the governmental power to give it more independence. The proposal did not find support at first, but two months later the changes were made with even greater efficiency.

The practical test of the Swiss model provided effective assistance to the Constitutional Commission of the Constituent Assembly, which began drafting a lasting constitution in the summer of 1919. The Constitutional Commission also had access to new European constitutions such as the German Constitution of 11 August 1919, the Finnish Constitution of 17 July 1919 and the Czechoslovakian Constitution of 29 February 1920. Although there was the hope that the Swiss model would be radically dismissed, it was noted already on 27 May 1920, at a meeting of the Constituent Assembly, that a parliamentary form of government should be implemented in Estonia, whereby the status of the people's representatives and the executor of the governing power should be balanced as much as possible.12 The question about a head of state caused disputes and ideas ranging from a collegial senate to the institution of president. The draft of the Constitutional Commission provided for the institution of President of the Republic, whereby the head of state was furnished with the powers characteristic of a parliamentary head of state. In the course of discussions of the draft in the Constitutional Commission, extensive disagreements emerged and the Commission decided to suspend further deliberations so that the Constituent Assembly could express its opinion on the disputed issues. The Constituent Assembly demanded that the Commission remove the institution of a head of state and find other means to realise the principle of separate and balanced powers. The Constitutional Commission recognised the government's political liability before the people's representatives, but having given up the institution of a head of state, they could not find guarantees to balance and, if need be, to restrain the activities of the people's representatives. The name of Prime Minister was replaced by that of State Elder, but this did not bring about any essential functional or legal changes.

Final solutions were reached on 15 June 1920, when the general meeting of the Constituent Assembly adopted the Constitution of the Republic of Estonia,13 drafted by the Constitutional Commission, which entered into force on 21 December 1920.14 This Constitution has earned controversial assessments. Those proceeding from the priority of the power of the people, have characterised the Constitution as exceptionally democratic (even ultra-democratic). The Constitution assures that the power of the state is in the hands of the people (section 1), whereby the supreme executor of state power is the people itself through the medium of citizens with the right to vote (section 27). A voter was a citizen of at least 20 years of age. The people supported state power in three ways: by referendum, popular initiative and by the election of the Riigikogu (section 29). The people had the exclusive right to amend the Constitution, regardless of whether the amendments were motioned by popular initiative or by the Riigikogu according to ordinary procedure (section 88). By way of a popular initiative, 25 000 citizens had the right to make a proposal that a law be passed, amended or cancelled. If the Riigikogu rejected a draft initiated in this manner, the draft had to be submitted to the people to be decided (section 31). On the same principle, at least one third of the members of the Riigikogu had the right to demand that a law which had been passed but not promulgated within two months, be submitted to a referendum (section 30). If the people rejected a law passed by the Riigikogu or accepted a law rejected by the Riigikogu, new elections to the Riigikogu would be proclaimed (section 32).

Bearing in mind that the Constitution could be amended only by a referendum, it can be claimed that the 1920 Constitution guaranteed the people the position of the supreme body of the state. Thus, the will of the people was given priority over the will of any other state body. In addition to the exceptions enumerated in section 34, the people had the right, by referendum or by way of popular initiative, to decide any issue to be resolved by law. From this aspect, and bearing in mind the background of the years following World War I, the first Estonian Constitution deserves high recognition.

Nevertheless, this Constitution had deficiencies which were soon to be felt in the course of its implementation. First of all, they were manifested in the imbalance of separate powers, especially in the principle of the supremacy of the Riigikogu in the fact that it did not confine itself to lawgiving, but also fulfilled state governing functions to a large extent. Although the Constituent Assembly, when drafting the Constitution, took a radical turn from the Swiss model of relations between the representative body and the government toward a more parliamentary relationship, earlier convictions, the scarcity of legal guarantees and a divergence of interests did not enable its realisation.

A gap emerged between constitutional solutions and the way they arose. In comparison to the Provisional Organic Law of the Republic of Estonia, the Constitution gave the government limited legislative powers in matters pertaining to the defence forces (section 81) and entitled the government to issue regulations pursuant to laws. The Constitution created pre-conditions for the State Elder to become the actual head of the government. It was the State Elder’s duty to represent the state, lead and unify the activities of government, preside over meetings of the government and to interpellate any member of the government if necessary (section 61).

At the same time, the Constitution gave no support to the government and the State Elder so that they could successfully fulfil the tasks and rights entrusted to them. The status of the Government of the Republic and the status of the State Elder, as the leader of the government, were made dependent upon the discretion of the Riigikogu. The status of the State Elder in relations with the Riigikogu did not differ principally from the status of an ordinary member of the government. Moreover, the government had no possibility to protect itself against the majority of the Riigikogu in issues of general policy and the budget, even if it had serious reasons to believe that the overwhelming majority of people would share its views and not those of the Riigikogu. The Constitution enabled the Riigikogu to limit its own power, but gave no indication on how to act in case the Riigikogu exceeded its limits of power. Considering the fact that pursuant to the Constitution (section 33) even referendums had to be conducted under the control of the Board of the Riigikogu, it is understandable why people did not manage to successfully correct the activities of the Riigikogu. The Riigikogu proved to be unrestricted in its activities and, therefore, it would not be improper to discuss disorders in the balancing of separate powers in Estonia’s first Constitution, as in fact Estonia had a typically dominant system in favour of the people's representatives.

There are two features characteristic of a dominant system in favour of the people's representatives: firstly, dominance of parliament over the executive and judicial powers; and secondly, instability of the executive. Dominance of the Riigikogu can be traced back to the Constitution which prescribes that the government is to be formed and its resignation accepted by the Riigikogu (section 59). Also, the supreme judicial power in Estonia was exercised by the Supreme Court of Justice, comprising of State Judges elected by the Riigikogu (section 69). Although other judges were appointed to office by the Supreme Court of Justice, the judicial system was dependent on the Riigikogu through its leadership. The realities of actual life quickly turned the trusting parliamentary relationship between the Riigikogu and the government into subordination.

Instability of the executive power is a phenomenon which accompanies dominance by the people's representatives and is characterised by the fact that beginning from the formation of the first government by the Constituent Assembly on 9 May 1919 until the activities of the Riigikogu were suspended on 2 October 1934, Estonia witnessed 22 governments, 20 of which resigned on their own initiative. Thus, the

average term of office per government was only 8 months and 20 days. It is of interest to note in this context that none of the governments resigned because of a direct vote of no confidence: five governments vacated because of new elections; one resigned after the revolt of 1 December 1924; another due to a reorganisation of the Riigikogu and another as a result of a 1933 referendum. Every other government resigned due to a break-up of a government coalition.15

According to E. Laaman, a politician and political scientist of that time, the 1920 Constitution created an order that was parliamentary by name but substantially meant the law of convention. Thus, Estonia’s own Jacobins unintentionally returned to their roots: the French Revolution, where the omnipotent Convention was the incarnation of the people (nation).16 This comparison is severe but contains the truth.

The Second Constitution: A Reverse Dominance System of Powers

Discussions about the need to amend the first Constitution began soon after it entered into force. The Constitution which had been considered the paragon of democratic ideals of the time, in practice, proved far from integral. Essential antagonisms were planted in it from the very outset. The Social-Democratic grouping of the Constituent Assembly considered it of great importance that the idea of a people's government be reflected in the Constitution. The same was recognised by the Labour Party, although with some uncertainty. A representative of that party noted that although the party proceeded from the principle that Estonia should have a democratic order wherein the popular majority is the final instance of decision-making, that did not mean that such a view is appropriate in every situation. He added, that they had supported the idea because it had won world recognition. The Maarahva Liit (Peasants' Union) held that the teaching of the people vested with the supreme power was, first and foremost, but a theoretical postulate. Assessing the Constitution, a representative of that party stressed that governmental power was feared in Estonia and because of that fear, the institution of a head of state had been forfeited, as well as attempts to balance the status of the people's representatives with that of the government, bringing about a need to seriously consider the difficulties accompanying that lack of balance. A representative of the Christian Peoples' Party expressed the view that the Constitution should include safeguards to avoid future infringements by the Riigikogu.17

Although the representatives of almost every party were very cautious and reserved concerning the new Constitution and even considered it their duty to warn future implementers of the Constitution against probable difficulties, the general attitude of all political groupings was positive. They were aware of the possibility that the mode of government may prove imperfect and that the need to change it may soon arise. However, this did not prevent the groupings from voting in the affirmative. There were only three negative votes.

The antagonisms and imbalance of powers, programmed into the Constitution by its creators, were to be felt more frequently and acutely in the course of implementing the Constitution. They were further amplified by post-war difficulties and an economic crisis, which finally led to a constitutional crisis.

The first humble attempt to amend the Constitution was made by State Elder K. Päts after the 1 December 1924 Bolshevist coup d'état, when he gave to the factions of the Riigikogu his plan to establish the institution of president elected by the Riigikogu. The proposal found no support however, and in addition, did not meet procedural requirements.

The first legally appropriate step to amend the Constitution was taken by the Peasants' Association, a Riigikogu faction, in 1926, when they suggested that the Board of the Riigikogu initiate amendments to the Constitution and hold a referendum thereon. The Riigikogu, exercising its discretion, managed to delay events until the expiration of their mandate and, thus, discussion of the draft did not develop further. The same fate came upon a draft amendment to the Constitution presented to the Riigikogu on 29 January 1932 by way of a popular initiative when those who presented the draft failed to make the advance payment necessary for publishing costs to the Riigi Teataja.18 The same draft substantially was initiated by a proposal of the Riigikogu itself on 19 February 1932. In spite of several infringements of procedure by the Riigikogu when enacting the obligation to participate in a referendum,19 the people rejected the draft by the referendum of 13-15 August 1932 by 11 236 negative votes.

After this rejection, the Riigikogu hurried to draft new amendments to the Constitution, giving the task to the Constitutional Commission. The Commission proceeded from the draft that had been rejected by referendum, by reforming and amending it. The Commission submitted the completed draft to the Board of the Riigikogu in January of 1933 and asked that it be accepted by the Riigikogu as a proposal and put to a referendum. Thus, earlier mistakes were repeated, as it is impossible for a proposal to become law without later amendments. Prior to declaring a new referendum, the referendum law20 was amended for a second time on 21 February 1933. Although an earlier infringement of the Constitution and the obligation to vote were abolished, the obligation was replaced by another one which prescribed that amendments to the Constitution would be considered accepted by the people only if a majority of the participants of a referendum vote in the affirmative and the number of participants amounts to at least 30% of all citizens entitled to vote.

The Riigikogu had no power to establish such a majority. This illegal action of the Riigikogu can only be explained by their feelings of superiority and irresponsibility, and the knowledge that no one had the right to exercise supervision over their activities, as there was no such mechanism. Nevertheless, the punishment followed. The amendment failed by the referendum of 10-12 June 1933, as it got only 161 598 affirmative votes but 333 118 negative votes.

After these two failed attempts, the Riigikogu gave up the idea of amending the Constitution by its own motion and began to work against the draft elaborated by participants of the Estonian War of Independence submitted by way of a popular initiative. This draft proposed to strengthen governmental power by establishing an omnipotent presidential power. By the resolution of the Government of the Republic of 11 August 1933, a state of national emergency was declared over the whole territory of the country, hoping to bar the referendum. As the referendum had been scheduled for 14-16 October 1933 already before the declaration, the Riigikogu decided to use another means to frustrate the referendum results by amending the Elections to the Riigikogu, Popular Initiative and Referendum Act so that henceforth, for the adoption of a constitutional amendment, participation by at least 50% of all citizens entitled to vote was required.21 These countermeasures though, proved futile as the Constitutional Amendment Act earned 416 878 affirmative votes and 156 894 negative votes. Thus, the affirmative votes comprised 72.7% of the total number of active citizenship.

This, perhaps too detailed overview of attempts to amend the Constitution, vividly illustrates the extent of shallowness and jealousy, in the fight for its own interest, shown by the Riigikogu who had priority in the system of powers. The Riigikogu did everything to exclude the people from the exercise of their power and to avoid the emergence of referendum-parliamentarism in Estonia. Only once did the people have the opportunity to use their right of referendum in the course of ordinary legislative procedure. During the first Riigikogu, people had to express whether they shared the views of the majority of the Riigikogu on the issue of religious instruction. It appeared that the majority of voters supported the views of the minority. This fact put the Riigikogu on its guard, causing it to frustrate two subsequent attempts to make decisions by referendum. One of those was an attempt to cancel a law concerning compensation for land expropriated on the basis of the Land Act, while the other aimed to abolish local county governments. The Riigikogu did not abstain from violating its own standing orders and using discretionary manipulations with electoral law. This proves once again that a collective dictator is no better than an individual one; rather, the contrary. Even today, the French still have bitter memories of the days of the Convention.

The victory at the third attempt was in many ways a Pyrrhic one, as the outcome was not a balance of powers but the repositioning of the centre of power from the Riigikogu to the executive power, first and foremost, the State Elder. The Constitutional Amendment Act22 cut the number of members of the Riigikogu from 100 to 50 and abolished county councils. Personal elections were replaced by proportional elections with open registers. The State Elder became the head of state who had wide-ranging authority and was directly elected by the people.

It was characteristic of the relationship between the State Elder and the Riigikogu that the instrument of absolute veto was brought out from the lumber-room of history. This meant that the State Elder could stop any legislative initiative from the Riigikogu until expiration of the mandate of the Riigikogu. Thus, the subsequent Riigikogu could adopt and enact such laws (section 53). The absolute veto could be directed against a draft law and thus, bar the emergence of a statute. In other words, the use of the absolute veto made the issuance of a law impossible. The power of an absolute veto is always the right of an administrative body with legislative qualifications. Thus, the State Elder became a sub-organ of legislation and the State Elder’s will was decisive in the emergence of every statute.23

If an absolute veto can be viewed as negative legislation, it should be added that during the periods the Riigikogu was not working, the State Elder had an unlimited positive legislative power to issue decrees. The State Elder could issue decrees without any hindrance for six months a year, as the regular sessions of the Riigikogu began on the first Monday of October each year and lasted no longer than six months (section 41). At the same time, the State Elder had the right to terminate a regular session even before the six months were over, if national interests so required. With reference to the national interest, the State Elder was entitled to declare prescheduled elections to the Riigikogu before the end of the four-year term. These had to take place within six months from the date of the pertinent decree (section 39). As can be seen, the State Elder was in the position of excluding the Riigikogu for at least one year and taking extraordinary measures for even longer.

Also, executive power was concentrated in the hands of the State Elder. Earlier, the highest executive power was exercised by the Government of the Republic, but now this power was vested in the State Elder as the people's representative. The Government of the Republic existed by the State Elder, being appointed or released from office by the State Elder either on his or her own initiative, or at the suggestion of the Prime Minister or on the basis of a vote of no confidence by the Riigikogu (sections 57 and 64). The State Elder represented the Republic of Estonia, concluded treaties with foreign countries on its behalf, declared a state of national emergency, submitted draft laws to the Riigikogu, was the High Commander of the defence forces, appointed to and released from office members of the defence forces and higher civil servants, promulgated laws and exercised supervision over the exercise of state power. The State Elder was empowered to not promulgate laws passed by the Riigikogu, not only because of violations of the Constitution but also on grounds of national interest. The Riigikogu only had the right to amend decrees of the State Elder, whereas regulations of the State Elder were totally out of their control, as the countersignatures of the Prime Minister and the pertinent minister cannot be taken seriously because of their subordinance to the State Elder. Thus, the situation was paradoxical. The State Elder was not subject substantially to any control, as the government had no rights but only obligations and it bore a responsibility before both the Riigikogu and the State Elder. In fact, the government had the status of an assisting body to the State Elder.

The Constitutional Amendment Act also strengthened the position of the State Elder in the operation of the courts. Earlier, the supreme judicial power in Estonia had been exercised by the Supreme Court of Justice elected by the Riigikogu. However, according to the new procedure, State Judges and all other judges were appointed by the State Elder from among the candidates suggested by the Supreme Court of Justice. The concentration of judicial power was also shown by relocating the Supreme Court of Justice from Tartu to Tallinn.

From the aforesaid, the following conclusion can be made: as in the case of the 1920 Constitution, the Constitutional Amendment Act of 1933 gives reason to speak only of separate powers, but not of their balance. The Constitution concentrated power in the Riigikogu, while the Constitutional Amendment Act concentrated power in the head of state, and did this more consistently and widely than the Constitution of 1920. The head of state bore no political responsibility, but all other higher state bodies were dependent on the head of state. The translatio imperio, or transition of power to one person, was completed. The highest power, or suprema potestas, was in the hands of the State Elder.

In connection with the implementation of the Constitutional Amendment Act on 24 January 1934, it has been mentioned in the legal literature that from that moment onward, a new constitutional order began operating in Estonia and that a new Constitution of 193324 began to be referred to. From a formal legal perspective, this was only a law which amended the Constitution of the Republic of Estonia that had been adopted by the Constituent Assembly in 1920. Although 30 articles of the 87 in total were amended, the amendments were so substantial that it is justified to speak of a new constitution.

This Constitution marked the beginning of the most ambiguous and demagogic era in the history of Estonian independence. In a tense political situation where functionaries of the Union of Participants of the Estonian War of Independence openly proclaimed their anti-democratic power ambitions, K. Päts, in the capacity of State Elder, used his wide-ranging powers on the basis of the amendments to the Constitution to avoid a possible take-over or even a coup d'état by the Participants of the War of Independence in connection with approaching elections of the State Elder and to the Riigikogu. K. Päts carried through a coup d'état on 12 March 1934 and declared a state of national emergency, which was enacted by telegraph for a period of six months. By the same decision, J. Laidoner was appointed the High Commander of the defence forces. This decision was unanimously approved by the Riigikogu on 16 March 1934.25

Simultaneously with the declaration of the state of national emergency, the High Commander of the defence forces suspended the Union of Participants of the War of Independence for the period of the state of national emergency and prohibited political meetings and marches. By his decree of 19 March 1934, the State Elder issued laws postponing the earlier proclaimed elections of the State Elder and to the Riigikogu until expiration of the state of national emergency. Due to the elections to the Riigikogu being postponed, the amendments to the Constitution essentially limiting the powers of the Riigikogu, and the composition of the Riigikogu at the time not, during a most difficult time in domestic political life, expressing any will to co-operate with the State Elder and the government, the government informed the public through the press on 2 October 1934, one day after an extraordinary session, that the present composition of the Riigikogu would not be convened any more. Thus, State Elder K. Päts and the government resumed total responsibility for the fate of the country and the people. This is how the situation, which came to be called the “silent era”, was born.

The Third Constitution:
First Steps to Balanced Powers

The “silent era”, that is, a government without representation of the people, does not fit the concept of democracy and has therefore earned justified criticism. However, this era was not void of impetus for development. Due to a strengthening economy and normalisation of domestic order, the activities of the Participants of the War of Independence died away and state life became more stabilised. The Participants of the War of Independence tried to amend the Constitution once again in the autumn of 1935, by submitting a pertinent plan to the Riigikogu. Thus, those who presented the bill, had to admit openly that their first attempt to amend the Constitution had not been thoroughly prepared. Probably, it was unexpected for them to become victims of the very weapon they themselves had created. It is more than probable that if they had succeeded in taking over state power, they would never have proposed the second draft. On the basis of a law concerning national defence, the State Elder refused to launch the draft. The coup d'état of the Participants of the War of Independence scheduled for 8 December 1935 was also liquidated before it could be realised and this meant their disappearance from the political arena. The activities of societies and associations began to liven up and the Head of Internal Defence gave permission to form additional ones.

The period of stabilisation of state life was also a period of clarification. Three years of authoritarian order made people and politicians assess more critically the events of the times of crisis and their views on the law of politics. The state life of Estonia proved convincingly that neither the 1920 Constitution, which guaranteed the supremacy of the Riigikogu, nor the 1933 amendments to it, which led to personal power for the State Elder, were suitable for the future.

Thus, an idea was ripening within government circles to convene a new institution similar to the Constituent Assembly, entitled the National Assembly, the sole task of which would be to deal with issues of constitutional order. To support the idea, a resolution was drafted, presided over by the State Elder, for convention of the National Assembly and it was put to a referendum on 23-25 February 1936, together with the draft Referendum for Convention of the National Assembly Act. In this resolution, the State Elder, on the one hand, asked for authority to convene the National Assembly with the task of either amending the existing Constitution or adopting an entirely new one. On the other hand, the draft resolution contained some basic requirements for the National Assembly in its daily activities. Section 2 of the resolution stated: “When amending the Constitution or drafting a new Constitution, the National Assembly must bear in mind that Estonia shall remain a republic which is based on the power of the people, wherein the supreme power is vested in the people and which is governed by a head of state through balanced co-operation between the government convened by the head of state and a two-chamber assembly representing the people.”26 Of those who participated in the referendum, 75.4% supported the initiative, or alternatively, 62.3% of citizens with the right to vote.27

The National Assembly served as a model for the future Riigikogu. The elections of the first 80 members of the National Assembly took place on 12-14 December 1936. These were general elections based on direct, secret and universal suffrage. The second chamber of the National Assembly consisted of 40 members. The members were representatives of the courts, local governments, economic and professional self-governments, self-governments of culturally autonomous ethnic minorities, the University of Tartu, the Defence League and the church, including ten members appointed by the State Elder.

The State Elder convened the National Assembly on 18 February 1937. On the first day the Assembly met, the members of the Assembly made a solemn vow in the presence of the State Secretary. On the next day, work began simultaneously in both chambers independently. The National Assembly completed its work within the prescribed six months and a draft Constitution of the Republic of Estonia and the law on its implementation adopted by the Assembly were submitted to the State Elder. The latter proclaimed the Constitution on 17 August 1937 and it was published in the Riigi Teataja on 3 September 193728. The Constitution entered into force on 1 January 1938. Thus, depending on whether the completion or the entering into force is borne in mind, it is referred to as either the Constitution of 1937 or 1938.

In this Constitution, an attempt was made to avoid earlier mistakes. The authors of the 1920 Constitution wished to unite direct popular government with parliamentarism. The Constituent Assembly had denied independent governmental power, but attempted to make the people's representatives politically responsible before the people, similarly to how the government was responsible before the Riigikogu. Implementation of this system however, actually meant a concentration of power in the hands of the Riigikogu even to a greater extent than the Constituent Assembly had wished. Popular control over the Riigikogu proved infeasible.

The aim of the drafters of the 1933 Constitution, on the contrary, was a mode of government based on the principle of a leader. All rights that were formally given to other state bodies could actually be annulled by the head of state on the basis of the very same Constitution and were replaceable by a unilateral right of the head of state. Proceeding from the aforesaid, it becomes understandable why the drafters of the 1938

Constitution were suspicious of people as the executor of supreme state power and why they desired to find guarantees to avoid a concentration of the execution of state power in one and the same body. The consequence of a critical analysis of the 1932 and 1933 referendums was that a majority of the National Assembly was in favour of replacing direct popular power with representative order. On the other hand, this brought about a search for methods, possibilities and guarantees so that a higher body could not ignore others or prevent them from exercising their rights. Consequently, it was only during the drafting process of the third Constitution that the need to cognise the functions, competence and status of separate powers and to plan for pertinent measures became apparent.

This is exactly what was done. The Constitution of 1938 gave up the ideas of popular initiative and direct popular legislation, except for issues of constitutional amendment (sections 148-150), but then only if the President considered a referendum necessary. In other words, the activities of the executor of the highest state power were directly dependent on the head of state. If the President did not demand that a constitutional amendment be put to a referendum, the Constitution could also be amended by a decision of the Riigikogu. An innovation in the Constitution was the introduction of a referendum. This meant a presidential right, upon the consent of the Standing Committee of the general meeting of the Riigikogu, to directly consult the people on their opinion and to decide principal issues. The decision of the people was taken by a majority of votes of those taking part in the referendum. Such a decision was binding on state authorities and they had to immediately proceed to give effect to the decision. A referendum could not be held on questions relating to amendments to the Constitution, taxation, national defence, treaties with foreign powers or financial obligations of the state (section 98). Although referendum had earned constitutional recognition, the former referendum-parliamentarism was replaced by ordinary parliamentarian order. The attributes of direct democracy were abandoned in favour of representative democracy.

Characterising the new Constitution in his speech on 17 August 1937 when the National Assembly ceased its activities, State Elder K. Päts stressed the essential change in the supreme power of the people when he stated the following in Latin: summa potestas in cives legibus soluta. This means that citizens have the supreme power, which is free and not dependent on law. He explained that all other powers were bound by law, but not the supreme power, because otherwise it would be unable to amend the Constitution.29 Such an approach was very novel, as the dominant view at that time was that the people exercise their power as the organ of the state. Some doubts have been caused by Article 35 of the Constitution, which enumerated the different forms of how people exercise state power but which, unlike the previous Constitutions, did not include popular initiative, and by the fact that the former referendum became an inquiry by referendum. Unfortunately, the Constitution remained in force for a period that was too short to see how the new content of supreme power fitted actual reality.

The issue of amending the content of the power of the people could as well have been raised to cover the naked depository and executor of supreme power, whereas attempts to balance separate powers proved more fruitful. This is mainly due to the fact that the scope of the balancing mechanism was widened. In the Constitution of 1920, this was confined to relations between the people, the Riigikogu and the government. The Constitution of 1933 added the directly elected State Elder as one more centre of power. If at first the Riigikogu overshadowed the government and the people and, later, the State Elder overshadowed everyone else, then the Constitution of 1938 succeeded to liquidate the dominance system of separate powers and began to balance powers. To achieve this, a two-chamber Riigikogu was formed, relations between the President and the Riigikogu were established on the principle of duality although this was not an entirely closed principle, the President's right to issue decrees was restricted leaving the President with only the right to issue emergency decrees, and the President had only the right of a single suspensive veto whereby the act of veto was an administrative act both in the substantive and formal senses. At the same time, the government was subordinated to the President, which manifested in the higher legal power of the President’s acts and in his or her special right to appoint and recall the Government of the Republic or its single members. Closed dualism, in the legal sense of this term, between the electorate and the President also served to balance powers.

These elaborate methods for balancing powers, including the principle of dualism in its substantive law sense, did not preclude but, instead, presupposed co-operation between the authorities exercising state power and their functional links, which would guarantee their mutual checks and balance. The two-chamber Riigikogu was first and foremost formed with the aim of excluding the possible recurrence of parliamentary dictatorship. All draft laws were to be passed by both chambers. A draft was first examined and passed by the Chamber of Deputies. The National Council then had to reach a decision regarding the draft law passed by the Chamber of Deputies within thirty days at the latest. If the National Council informed the Standing Committee of the Chamber of Deputies that it approved the draft law, the draft was considered as a law passed by the Riigikogu and submitted to the President for promulgation. If the National Council made amendments, these would be discussed by the Chamber of Deputies. In the case of a disagreement, a reconciliation procedure was prescribed. If the reconciliation procedure failed, the Chamber of Deputies was to make a final decision by a three-fifths majority of its legal number of members (section 95). All differences had to be resolved within the Riigikogu. The Constitution embraced several essential guarantees for the regular work of the Riigikogu without presidential infringement.

Although the President had wide powers, he or she was also bound in their realisation. Pursuant to section 42 of the Constitution, the decisions and other acts of the President of the Republic, with the exception of those issued by virtue of special rights conferred upon him or her, were valid only if they were also countersigned by the Prime Minister and the competent minister. Thus, for the exercise of his or her powers, the President needed the consent of the Prime Minister and the competent minister, or in fact, the consent of the Government of the Republic. When countersigning, the Prime Minister and the competent minister had to consider the opinion of the Chamber of Deputies to avoid a vote of no confidence. Thus, in his or her activities, the President also had to consider the opinion of the Riigikogu.

Drafting the state budget is a good example of co-operation and interdependence between the highest authorities. Although it was within the exclusive competence of the Riigikogu to adopt the early budget of national revenue and expenditure, proposals for the budget were to be made by the Government of the Republic 70 days prior to the beginning of a new budget year at the latest, on the order of the President. The Riigikogu was entitled to increase the revenue and expenditure foreseen in the draft estimates or include new items of expenditure with the consent of the government. The Riigikogu could not cancel or reduce items of expenditure in the draft estimates, if these were fixed by law (section 103). The President could not by decree enact or amend the state budget or legislation which according to the Constitution had to be passed by the Riigikogu by resolution (section 99).

The author cannot but agree with those who assure that the 1938 Estonian Constitution was better prepared and more thoroughly weighed than either of the previous ones and that it was passed more unanimously than the previous Constitutions. At the same time, this Constitution has been considered to be authoritarian due to the rather far-reaching powers of the President. This assessment will probably grow less severe, when the following are considered: the international situation for Estonia after World War II and the domestic tensions caused by it; the entirely new balancing mechanism in comparison with the previous ones; and the fact that it was impossible to make a single leap from the “silent era” to a developed democracy. Also, the actual implementation period of the 1938 Constitution remained short, as Estonian life was interfered with by global European processes. On the night of 23-24 August 1939, in the Kremlin, the Soviet Union and Germany signed the Molotov-Ribbentrop Pact and the secret protocol to it, by which Central and Eastern Europe were divided between the two powers into spheres of influence. In the aftermath of this Pact, on 28 September 1939, Estonia was forced to sign the Treaty on Military Bases which lead to the occupation and annexation of the Republic of Estonia in 1940.

The Fourth Constitution:
New Difficulties in Balancing Powers

The occupation and annexation of the Republic of Estonia excluded the country for more than half a century from European legal developments, including public law developments. The Supreme Soviet of Estonia took advantage of the August coup d'état in Moscow in 1991 by declaring the sovereignty of the Republic of Estonia and sought to re-establish diplomatic relations on the basis of legal succession. The Russian Federation was among the first countries to recognise Estonian independence. By the end of the year, about one hundred countries had recognised Estonian sovereignty. The Supreme Soviet's decision of 20 August 1991 about Estonian sovereignty also prescribed the establishment of a Constitutional Assembly for the purposes of drafting a constitution. This was formed from the Supreme Soviet, the highest legislative body, and from the Estonian Congress, a representative body of Estonian citizens, on the basis of parity, in that, each could elect 30 representatives to the Constitutional Assembly from among its members. The formation of an independent body to draft a constitution followed an earlier tradition: as for the drafting of the Constitution of 1920 and for the Constitution of 1938, the Constituent Assembly and the National Assembly, respectively, had been formed.

The Constitutional Assembly began to work on the Constitution for the newly re-independent Estonia on 13 September 1991. The earlier drafting and implementation experience of the three former Constitutions and the six known drafts30 which were given to the Assembly facilitated the drafting of the Constitution in six months and it was adopted by referendum on 28 June 1992.

Judging by the letter of the Constitutions, it can be stated that all four recognise a functional separation of powers. A balancing of these powers is referred to however only in the last two Constitutions. The preamble of the 1938 Constitution states that the elected head of state, the government nominated by the head of state and the two-chamber assembly representing the people operate with a well-balanced co-operation. Discussions about whether this provision is normative or not depend on the legal importance of the preamble. It is clear however that the authors of the 1938 Constitution regarded this provision not as a postulate of legal policy, but as a norm to be considered in constructing relations between powers.

The drafters of the presently valid Constitution of 1992 had an opposite view. Apparently influenced by a desire to underline the importance of balanced powers, they included Article 4 which establishes that the activities of the Riigikogu, the President of the Republic, the Government of the Republic and the courts are to be organised on the principle of separate and balanced powers. Further, Article 4 was placed in Chapter I of the Constitution entitled “General Provisions”, which can be amended only by a referendum and which cannot give rise to any doubt as to its normative nature. Unfortunately, due to the inadequate and casual nature of the legal mechanism for balancing powers and the gaps in pertinent regulation, one can perceive an inclination towards a system of dominance. In this context, the influence of earlier traditions is felt as well as the fact that heritage has caused some imperfections. The dominance of administrative powers is dominant both in Estonia’s Constitutions and practice. The 1938 Constitution is the only one in which the legal mechanism for balancing powers satisfactorily meets even the requirements of current times, but the time for acquiring implementation practice for these mechanisms and for analysis and crystallisation, remained too short. The fact that disputes in the Constitutional Assembly centred around the parliamentary and presidential models of state government and the fear, rooted in the “silent era”, of the possibility of a revival of an authoritarian regime, resulted in overloading the Riigikogu with irrelevant functions and tasks so that the Riigikogu would, once again, rise to the forefront.

This phenomenon is noticed already in the relations between the Riigikogu and the executive power. In a parliamentarian republic, the parliament must place its confidence in the government. Trust in the political sense neither excludes nor presupposes subordination between the parliament and the government, but there is a dependency relationship. It is opposite to parliamentarism that while electing the President of the Republic and empowering the Prime Minister to form a government, the Riigikogu makes both top executive leaders dependent on itself. In addition, the Riigikogu is empowered to express no confidence in the Government of the Republic, the Prime Minister or a minister and make inquiries to them; on the proposal of the President of the Republic, to appoint to office the Chairman of the Board of the Bank of Estonia, the Auditor General, the Legal Chancellor and the Commander or Commander-in-Chief of the Defence Forces; to appoint members of the Board of the Bank of Estonia and to resolve other national issues which the Constitution does not vest in other bodies. Drawn on these very “other issues”, a number of commissions have been set up for the investigation of various scandals.

The members of the Constitutional Assembly, when resolving issues of power, made frequent references to the 1938 Constitution, but did not remember that the balancing mechanism of that Constitution included a directly elected president, a two-chamber Riigikogu and professional chambers. It is a well known fact that if good models are used in different integral systems, wherein conditions, links and relations are different, the result will inevitably be distorted and will not necessarily meet expectations.

Probably the drafters of the Constitution, when balancing separate powers, were not aware of the necessity to consider not only horizontal relations of central authorities, but also their vertical relations with authorities of lower rank, such as local governments, citizens and civilian society as a whole. This conclusion arises from the fact that the competencies of three constitutional institutions, the Legal Chancellor, the State Audit Office and the Bank of Estonia, have not been expressly determined.

The institution of Legal Chancellor was established by the 1938 Constitution. The Constitution gave an exact determination of the position within the system of state bodies, stating that it resides by the President as the supreme administrative body of the state. However, in the case of the present Constitution, this must be determined by analysis. Proceeding from what has been written in the Constitution, it may be concluded that the fate of the present successor of the office of Legal Chancellor, as a governmental body, is essentially to be a parliamentary body.

In comparison with the institution of Legal Chancellor, the State Audit Office is one of the oldest institutions, being founded in 1919, more than one year before the first Constitution took effect. The Constitution states firmly that the Riigikogu is to control the economic life of state enterprises and institutions, and is to carry out the state budget through a specially formed institution (section 55) which came to be the State Audit Office. The Constitution of 1938 brought the State Audit Office nearer to the executive power. This was done first and foremost by giving the President, instead of the Riigikogu, special powers to appoint the Auditor General from among the candidates suggested by the general assembly of the Riigikogu. Although this did not mean the establishment of direct subordination, it still meant dependency, as the President could, on his or her own initiative, on the basis of the President’s special rights, release the Auditor General from office.

After 50 years of forced suspension, the institution of the State Audit Office was restored in 199031, two years prior to the adoption of the Constitution. The situation at that time was that the State Audit Office was sliding under governmental influence. Therefore, the State Audit Office Act chose to return to parliamentarism. This was also accepted by the Constitution. Thus, there is reason to consider the State Audit Office as a parliamentary body for economic control.

The situation is more complex concerning the Bank of Estonia. In this context, a brief look into history must be taken once again. The Bank of Estonia was founded in 1919 as a joint-stock company and it functioned also as a bank of issue. In 1928, it began functioning as a joint-stock bank with the exclusive right of issue. The Bank of Estonia Act of 1993 declares that the Bank of Estonia is the legal successor to the Bank of Estonia which was established in 1919 as the central bank of the Republic of Estonia (subsection 1 (1)).32 It is not clear from this provision whether reference is made to a legal succession under civil law or public law. Pursuant to the last articles of association, adopted by the Riigikogu on 3 May 1927, on the basis of which the Bank of Estonia operated until the occupation of Estonia by the Soviet Union, the Bank of Estonia was a private joint-stock company. As such, it had no such rights in relation to other credit institutions as were given to the Bank of Estonia by the 1993 Act and the subsequent amendments of 1994.

The Bank of Estonia has been rather rigorous in its attempts to raise its position. In the shadow of the reference to the legal succession to the 1919 joint-stock company, the Bank of Estonia desires to acquire a position equal to that of the Government of the Republic. At times, the Bank of Estonia is referred to as a “state within a state”33 and it is at this point that the actual complications with the Constitution emerge. The Constitution guarantees the Bank of Estonia the sole right to issue Estonian currency and gives it the tasks to regulate currency circulation and to uphold the stability of the national currency. However, it must be asked whether it is necessary for the implementation of these tasks that the Bank of Estonia seek to juxtapose itself with the Government of the Republic and to dream of being a separate “state within a state”. The valid law already gives it the status of a special central administrative body. Also, the fact that the Constitution stresses the independence of the Legal Chancellor and the State Audit Office in the execution of their tasks, must be considered when the same is not mentioned in connection with the Bank of Estonia. Apparently, the drafters of the Constitution saw the Bank of Estonia as a lucrative economic organisation, to whom the state should give the necessary powers to issue currency, regulate currency circulation and uphold the stability of the national currency.

Thus, proceeding from the letter of the Constitution, by which the Riigikogu is given many tasks not characteristic of it and the possibility to even enlarge their number at its own discretion, and bearing in mind that it is fixed in the Constitution that the Riigikogu has a dominant position compared to that of the executive and that it has the possibility of influencing the courts through the right to appoint the Chief Justice and the members of the Supreme Court, as well as bearing in mind the status of the Legal Chancellor and the State Audit Office as parliamentary bodies, one is left with the inevitable impression that the Riigikogu is not only a legislator, as is true of a parliament in a society based on the rule of law, but also is the embodiment of the whole power of the state, or in other words, the governing power, which encompasses every sphere of life. If a society based on the rule of law is ruled by the law, as an objective product of parliamentary work, by which even the legislator must be guided, then a legislative state (Gesetzesstaat) is ruled by a parliament as a state body which is not legally bound by its own acts. This reminds one of the Constituent Assembly and the Riigikogu as it was fixed by the first Constitution.

Reference to the first years of the Republic of Estonia is in many senses based on a paradoxical coincidence: on the basis of a Constitution which was declared super-parliamentary, the society reached for authoritarianism. Today actual developments incline toward an administrative state. This tendency was admitted even before the Constitution was passed.34 The executive power came to the forefront mainly by evolution and therefore, not every step was always noticed. This process began rather early when the Riigikogu got into difficulties because of the extensive amount of lawmaking to be done, internal antagonisms and a lack of experience. In this situation, the Riigikogu had to confine itself to ambiguous framework legislation and delegate the more detailed norm-making to the government. This in turn gave the executive the right to increase its staff and create new structural units. The ambiguity of the Constitution and of legislation has been craftily taken advantage of by governmental institutions and the Bank of Estonia. Due to the liquidation of county governments and the establishment of county governments as institutions of state administration, Estonia presently has a two level state administration and a one level local government. Administration is an important power at the command of the executive. Neither the Riigikogu nor the courts have such a powerful tool, especially considering the fact that Estonia has never had as large an administration as currently. Furthermore, the administration is strongly centralised and cemented by subordination.

In this apparently peaceful way, the government is distancing itself from the legislators, and the principle of dualism is taking root. As already mentioned, due to legal ambiguity and incompleteness, the present situation and circumstances are being taken advantage of. Usually a breakthrough comes at a moment when the Riigikogu does not support the government, but is not willing to overthrow it.

From the aforesaid springs the conclusion that the Constitution has not achieved a balance of powers. Although the Riigikogu prevailed at the Constitution’s birth, during the implementation, the government has become predominant.

There are several reasons why Estonia has had difficulties with balancing powers during its independence. A theoretical lag should be mentioned as one of the reasons. All three earlier Constitutions were state-centred. This did not manifest itself not only in the small number of functions but in the state organisation as a whole. Similarly to continental Europe, the state was treated as a legal person. The words of J. Uluots, a member of the Constituent Assembly and an academic, can be trusted when it was stated that the Constitution does not leave the issue of the construction of the Estonian state open, neither in theory nor in doctrine, or to be decided by academics by their beliefs, but instead one doctrine from among many was chosen for the Constitution and has been adopted. This contains a warning for whoever interprets the Constitution that the construction of a legal person must be borne in mind: those, who do not, will go astray.35

Pursuant to the concept of a legal person, the state acts through its bodies. The leading political scientists of the time were firmly convinced that state authorities do not exercise their own power but the power of the state or, to put it differently, the political scientists had adopted the state organ theory as opposed to the representation theory. From this arises the logical conclusion that the people are a state body, who have no other way to fulfil their constitutional functions.36 This theoretical construction of the state and the people as a state body, for whom in 1931 voting was made obligatory, has without any criticism been adopted by the 1992 Constitution. It is not clear from the documents of the Constitutional Assembly whether the issue of the state as a legal person was even given serious consideration, because the issue of the form of government overshadowed most other questions. Paradoxically enough, the concern about the priority of the Riigikogu did not secure the power of the people, but instead served the interests of the state through the Riigikogu as a state body.

After World War II, the concept of the state as a legal person had begun to forfeit its importance. This has mainly manifested in the loss of interest in the theory and the resolution of earlier topical issues are no longer even tried. Time has done its job. However, just as unnoticeably as the old has faded away, the new has gathered strength. The separation and balance of powers is given much broader treatment, by also including vertical relations in addition to the horizontal relations between central bodies. Furthermore, development has even outgrown these parameters. State power cannot confine itself only to organising its own activities, but also must govern the whole society. For the fulfilment of this task, state power should be viewed as a component of society as a whole. Thus, the wide range of problems pertaining to the relations between the state and civilian society have become topical. For members of the Constitutional Assembly, this European process went unnoticed as they held fast to the principle of succession, although heritage also contained debts which were caused by the interruption in development. The paths to liberation from such debts should not be sought by opposing the people and the state, or civilian society and the state, but should be treated as an integral systematic whole instead. This would enable the unresolved issues to be approached from a new aspect and more people-centred legal solutions to be found. The nationalisation of society is being witnessed and it is time to head for a state of self-government (kunnallisvaltio).

Notes:

1 Eesti Vabariigi Põhiseadus (The Constitution of the Republic of Estonia), (Tallinn: Eesti Vabariigi Riigikantselei, 1993).
2 The Riigikogu is the parliament of Estonia.
3 Government of the Republic Order No 459-k of 14 May 1996 (RT I 1996, 35, 725).
4 J. Becker, Gewaltenteilung in Gruppenstaat (Separation of Powers in a Group State), (Baden-Baden: 1986); H.F. Zacher, Was können wir über das Sozialstaatsprinzip wissen (What Can We Know About the Principle of a Social State), (Hamburg: Tübingen, 1977); R. Meister, Das Rechtsstaatsproblem, (B. 1966); P. Häberle, Die Verfassung des Pluralismus: Studien Zur Verfassungstheorie der öffenen Gesellschaft, (Köningstein: 1980).
5 F. Blanc, F.-M. Viriéux, Ph. Waguet, Grands Régimes Etrangers (Constitutional Order of Foreign Countries), (Paris:1988); H. Schneider, Western-European Models in the Estonian Constitution. Seminar on the Powers and Functioning of the Constitutional Courts, (Tartu: Council of Europe, 3-5 May 1995).
6H. Maiberg, Gesellschaftsrecht, 7., überarbeite Aufl (Law on Associations, 7th rev. ed.) (München, Wien: 1990).
7 A.-T. Kliimann, Õiguskord (Legal Order), (Tartu: Akadeemilise Korporatsiooni Kirjastus, 1939) at 166.
8 Maanõukogu 28. novembri otsus kõrgemast võimust (National Council Resolution on Supreme Power of 28 November), RT 1918,1.
9 RT 1918, 1.
10 A.-T. Kliimann, supra note 7 at 180.
11 RT 1919, 44.
12 F. Korsakov, “Parlamentarismi rakendus Asutavas Kogus” (Implementation of Parliamentarism in the Constituent Assembly) (1931) 6 Õigus 241-265; F. Korsakov, “Parlamentarismi rakendus Eestis” (Implementation of Parliamentarism in Estonia) (1934) 1 Õigus 4-27; A. Mägi, Kuidas Valitseti Eestis (How Estonia Was Governed), (Stockholm: “Tõrvik”, 1951) at 30.
13 RT 1920, 113-114.
14 Põhiseaduse maksmapanemise seadus (Constitution of the Republic of Estonia Enforcement Act), RT 1920, 217-218.
15 A. Mägi, supra note 12 at 67.
16 E. Laaman, Põhiseaduse kriisi arenemine 1928 - 1933 Põhiseadus ja Rahvuskogu (Development of the Constitutional Crisis of 1928-1933. Constitution and the National Assembly.) (Tallinn: Rahvuskogu Üldkoosoleku Juhatuse Väljaanne, 1937) at 30.
17 A. Mägi, supra note 12 at 36-39.
18 The Riigi Teataja is the State Gazette of Estonia.
19 Riigikogu valimise, rahvahääletamise ja rahvaalgatamise seaduse muutmise seadus (Elections to the Riigikogu, Popular Initiative and Referendum Act Amendment Act), RT 1931, 50, 380.
20 RT 1933, 19, 133.
21 RT 1933, 81, 593.
22 RT 1933, 86, 628.
23 A.-T. Kliimann, “Vetoõigus” (Power of Veto) (1934) 1 Õigus 6.
24 E. Talvik, Legaalsuse põhimõte Eesti Vabariigi põhiseaduse tekkimises, muutmistes ja muutmiskavades, (The Principle of Legality in the Emergence, Amendment and Amending Drafts of the Constitution of the Republic of Estonia) (Tartu: EAÕS, 1991) at 49; Põhiseadus ja Rahvuskogu (Constitution and the National Assembly), (Tallinn: Rahvuskogu Üldkoosoleku Juhatuse Väljaanne, 1937) at 41-44; A. Mägi, supra note 12 at 87.
25 RT 1934, 23, 169.
26 Eesti rahva otsus Rahvuskogu kokkukutsumiseks (Decision of Estonian People on Convocation of the National Assembly), RT 1936, 21, 141.
27 Valitsusasutiste tegevus 1935/1936 (Activities of Governmental Institutions 1935/1936), (Tallinn: 1937) at 6-7.
28 RT 1937, 71, 590.
29 Põhiseadus ja Rahvuskogu (Constitution and the National Assembly), supra note 24 at 269.
30 Taasvabanenud Eesti põhiseaduse eellugu (The Antecedents of the Constitution of the Newly Re-independent Estonia), (Tartu: EAÕS, 1997) at 189-297.
31 Eesti Vabariigi Ülemnõukogu poolt 6. juunil 1990 vastu võetud Eesti Vabariigi Riigikontrolli seadus (Republic of Estonia State Audit Office Act, adopted by the Supreme Soviet of the Republic of Estonia on 6 June 1990), ENSV Ülemnõukogu ja Valitsuse Teataja 1990, 19, 288.
32 RT I 1993, 28, 498.
33 U. Mereste, “Põhiseadus - irdsätete kollektsioon või terviklik normisüsteem? Kas Eesti Panga seadus põhiseadusega pahuksis” (Constitution: A Collection of Separate Provisions or an Integral System of Norms? Is the Bank of Estonia Act in Contradiction with the Constitution) Rahva Hääl, 17, 18 and 19 November 1993; U. Mereste, “Keskpangal peab olema mõnesuguseid eriõigusi - see on kogu rahva huvides” (The Central Bank Must Have Certain Special Rights: This is in the Interests of the Whole Nation) Rahva Hääl, 7 and 8 March 1994: U. Mereste, “Eesti Pank peabki olema nagu riik riigis” (The Bank of Estonia Must Be a State Within the State) Sõnumileht, 13 May 1997.
34 H. Schneider, “Põhiseaduse kontseptuaalse analüüsi kriteeriumid” (Criteria for a Conceptual Analysis of a Constitution) (1992) 1 Eesti Jurist 14.
35 J. Uluots, “Rahvas ja ta funktsioneerimine Eesti põhiseaduse järgi” (The People and How They Function Pursuant to the Estonian Constitution) (1932) 6 Õigus 241-259 and 10 Õigus 433-461.
36 J. Uluots, op.cit., 6 Õigus 245-251; A. Mägi, “Rahvas riigivõimu kandjana ja riigivõimu teostajana” (The People as the Depository and Performer of State Power) (1936) 8 Õigus 368-378; A.- T. Kliimann, supra note 7 at 294-309; A. Mägi, Das staatsleben Estlands Während seiner selbständigkeit. I. Das Regierungssystem (Estonian State Life During its Independence. I. System of Government.), (Stockholm: 1967) at 246-257.






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