III/1998
ISBN 9985-9146-1-9
Issue
Introduction
The people of Estonia adopted the present Constitution by a referendum held on 28 June 1992. *1 The six years that have passed since then is a period sufficient to consider how the Constitution has been implemented, the activities of state bodies deserving of praise and of criticism, the stronger and the weaker aspects of the Constitution, and the possible solutions and measures to ensure further development.
As part of the 5th anniversary of the Constitution an international conference was held in Tallinn in 1997, and in May 1998 the 22nd Gathering of Estonian Legal Scientists took place, organised jointly by the Estonian Association of Jurists and the Estonian Academic Law Society. Both events were devoted first and foremost to constitutional issues. For the last two years these issues have also been debated by a governmental committee for legal expertise of the Constitution, set up on 14 May 1996, on the proposal of the Constitutional committee of the Riigikogu. It is understood that the analysis of the Constitution must not ignore issues related to its implementation. Separate implementation problems of the Constitution have been dealt with in specialist literature, but so far this has not been a separate area of study to be analysed as a whole. Every-day experience, though, indicates more and more clearly that we have reached a stage where, without understanding the whole, solutions offered for concrete issues become scattered, incoherent and ineffective.
Proceeding from the above considerations the following will mainly concentrate on the problems related to the implementation of the Constitution. Initially it is not possible and not even necessary to embrace everything and to go into details; instead we should first establish how the basic concepts and principal solutions of the Constitution have become rooted and exist in practice. Attention will be paid on the one hand to the role and activities of and relations between the state bodies of re-independent Estonia on the basis of the Constitution as the ultimate legal act, and on the other hand to establishing the efficacy of the system as the regulator of both legal and social activity. Thus, we have to deal with a complex problem, as the powers of state are exercised not only pursuant to the Constitution but also pursuant to laws which are in conformity therewith, as is appropriate for a rule-of-law state, and thus both law creation and law realisation, as well as rule creators and implementers should be evaluated.
To tackle such problems and tasks requires us to understand the methodology to be employed. The systematic approach chosen to analyse the efficacy of the Constitution has proved itself in the evaluation of complex phenomena. The system treats the implementation process of the Constitution as a dynamic management system with two subsystems, namely the governing and the governed subsystems. In social systems such subsystems are called the subject and the object of governing systems. Within this model the state bodies that arrange the implementation of the Constitution form the governing subsystem or the subject, and implementers and the implementation results of the Constitution in the form of legislation and objective social reality are the governed subsystem or the object. Direct connection in the form of the Constitution gives information to the implementers about what has to be done, and through feedback information is submitted from the subjects about the results of the realisation of the Constitution. As in the case of feedback in general, the research is related to such concepts as “goal” and “result”. For the control centre of the system the objective is the Constitution that shows what to do and what to achieve, but in the study of realisation the same goal becomes a criterion on the basis of which the actual results can be assessed. *2
1. Creation of a Legal System: Difficulties and Achievements
Initial state. Every beginning is difficult. The same holds true of establishing the legal system of re-independent Estonia. The theoretical literature contains many studies of legal order, legal systems and systems of legislative acts, as well as analyses and comparative studies of legislation *3 , whereas only a few are devoted to how to create a legal system and the methodological grounds for the legislative process. This can be explained by the fact that the conditions and possibilities for the creation of a legal system vary in different countries that have gained independence, and thus it is more difficult to draw generalisations.
We did have some advantages, namely a previous experience of independence, and as aspirations for regaining independence date back to 1988, pre-constitutional legislative acts and constitutions had been drafted before liberation. *4 It can be claimed that the Estonian people were psychologically ready for the liberation, although the moment of liberation itself was unexpected. Anyway, there was no doubt that the building of a legal system should start with the Constitution. After some debate, a decision had been reached that it was necessary to formulate a new Constitution, as the contents of the 1938 Constitution were in many respects inappropriate to the changed realities of 1992. It is worth mentioning that legislation was implemented to address the needs of the time irrespective of the lack of a formal constitution. Some of these acts, such as the Courts Act and the Status of Judges Act *5 , adopted on 23 October 1991, served as models for drafting Chapter XIII of the Constitution, entitled “The Courts”, and are still in force albeit with a few amendments made to the texts.
In its own way the Constitution set forth the basis for the creation of a legal system. It
(1) recognises the priority of the Constitution and laws over other legislation (§ 3(1));
(2) specifies the types of acts the state bodies are to issue and the legal force of such acts (§ 65(1); § 87(6); §§ 109 and 152);
(3) enumerates the laws which develop the constitutional order of the state, which are known in theory as constitutional acts or, in some states, as organic acts (§ 104);
(4) specifies the time, procedure and conditions for adopting and promulgating laws (§ 104(1) and (2); § 105; §§ 107-110).
Concepts. On the basis of these constitutional provisions it is possible to form three types of systems, which have been referred to in theoretical literature. These are: a legal system, a system of legal acts and a legal order. All three are characterised by the fact that they contain legal norms which are objectively in force and which have been graded according to their force.
Differences arise firstly in whether a system was designed on the basis of content or form, on legal norms or legal acts containing these norms. The system of legal acts is built on the attribute of form. As the Constitution differentiates legal acts according to their legal force, the possibility of hierarchical grading of legal acts within the system of legal acts is also preserved. According to H. Kelsen, the founder of dogmatic normativism, legal order is a system of legal norms. Accordingly, the essence of legal order has to be explained through the nature of legal norms. His claim that the whole is reflected by its parts and that the parts must have the characteristics of the whole *6 sounds rather modern. Perhaps it would be more precise to emphasise that those who comprehend the whole are capable of knowing its parts, whereas those who know all parts, even in detail, do not necessarily know the whole. This is because there is more to a systematic whole than the mere sum of its components, it has integral qualities. H. Kelsen’s conclusion, though, was logical: as a legal order is a coercive order (Zwangsordnung), a legal norm is also a coercive norm (Zwangsnorm). *7
Considering that both legal system and legal order constitute systems of legal norms, we have to find additional criteria to differentiate between the two. One criterion could be the initial basis of the system, the first link of legitimacy. The latter is gradually becoming more topical due to the fact that social organisation is becoming more and more complex. This starting point can be within or without a system. A legal system as a systematic whole is self-regulating and thus an external starting point is excluded.
Conversely, H. Kelsen’s model provides for a mystical fundamental norm (Grundnorm), also known as a primeval norm (Ursprungsnorm) and resides above all legal norms. Supporters and critics of his views have tried to unravel the meaning of a fundamental norm, but until now the concept has remained but hypothetical. According to H. Kelsen a fundamental norm creates an authority, whose demands and expressions are binding. Thus: behave as the monarch, the president or the parliament tells you to behave. *8 This does not give any additional information about the nature of the norm. Rather, it nurtures a conviction that this is not a norm of a valid objective law. It sounds more like a divine commandment from outside the system.
Consequently, the difference between the foundation of a legal system and a legal order lies in the fact that in the former it can only be within the system whereas in the latter it may originate both within and without the legal order. An external starting point directly indicates restrictions on independence. For example, when Estonia belonged to the former Soviet Union, it had a legal system in its own right, but its bases of legislation regulating the most important spheres were not inherent of the system.
The concept of a legal system or legal order possessing an internal foundation needs some clarification. As a rule, a Constitution is considered to be the starting point, and is fondly called the basis, the centre, sometimes even the heart of a legal system or a legal order which, as with the circulatory system, provides the whole norm-creation process with fundamental ideas, principles and solutions and ensures the integrity of legal system. At the same time many Constitutions contain the following: “people are the sole source of state power”, “sovereignty is deposited with the people”, “(multi-ethnic) population is the depository of sovereignty and the sole source of power”, “all powers of the state originate from the people”, “people are the depository of the supreme power”.
As it can be seen, “the people” are turned into a sovereign. The paradox lies in the fact that the power this sovereign population carries and exercises is not theirs but is assigned to the state, and according to the concept of a state as a legal person, “the people” exercise power only as a state body. Thus, two sovereigns – the state and “the people”, two sovereignties – that of the state and of the people, and two unsolved questions clash, namely who is the supreme power in the state, and in whom is that power vested?
These questions also determine the relations between the people and the constitution. The people have played four roles in the elaboration of constitutions. In one case the people are the direct issuers of the constitution when they adopt it by referendum. Thus, the constitution obtains its legitimacy directly from the people. The second possibility is that the people elect a special body to draft a constitution, while reserving the right to sanction or reject the draft by referendum. In this case also legitimacy is obtained directly from the people. The third possibility to create a constitution is the one in which the people also elect a separate body, and authorise it not only to draft a constitution but also to enact it. This is how the Estonian Constitution of 1920 was drafted and effected by the Constituent Assembly, and the Constitution of 1938 was drafted by the National Assembly. The Constitution of 1992 was drafted by a Constitutional Assembly, composed of members of the Estonian Congress and the then Estonian Supreme Soviet, and was legitimised directly by the people by referendum. In the fourth case the people as a sovereign body do not directly participate in the creation of the constitution, as this task has been entrusted to the parliament. The constitution itself is obligatory for all members of the society.
Beside the starting points, we should mention another difference between a legal system and a legal order, namely the differences in metaphysical base if they are perceived. On these grounds, systems may be designated static or dynamic. The former treat legal order as a stable ingredient of civilised society, the structure of which is determined by the socio-legal foundations of society. The latter understand a legal system as a legal or social process, or as an active principle, which dynamically directs, unifies and develops the corresponding human community. *9
On the basis of such an abstract classification it can be claimed that the majority of legal orders are static but have dynamic elements. With legal systems the situation is different. Being based on the theory of systems these tend to belong to dynamic systems. As mentioned already, both subsystems are interrelated through a direct informational link and through feedback. This creates conditions for their mutual effect: the governing subsystem in the form of state bodies and the constitution purposively influence the governed subsystem with the objective of developing and implementing a legal system in accordance with the constitution. On the other hand, the governed subsystem, in its turn, counter-influences the governing subsystem by providing feedback on the formation, constitutionality, realisation of and necessary corrections to the legal system.
Viewing a legal system as a self-regulating dynamic system resolves several questions unsolved in relation to legal order. For example, the question of the composition of a legal system and legal order. There is an ongoing dispute about whether a legal order is a system of only general norms or whether it also encompasses specific norms. The prevalent opinion is that a legal order is composed of general norms. Such an approach is justified only in the case of static treatment of a legal order, not in case of a dynamic legal system, as without single, non-personified norms general ones usually do not work. H. Kelsen recognised that single norms belong within a legal order, but his dynamic approach was limited, embracing only the mechanism for creating general norms. Although he considered legal order to be dynamic, in fact it was static and did not work despite containing single norms. Consequently, dynamic quality has to be a systematic quality.
A dynamic legal system, in comparison with static legal order, is more tolerant of its constituent parts and single norms. H. Kelsen’s model of legal order does not include every legal norm, instead it encompasses only coercive norms with a binding, compulsory character. The character is manifested in a hypothetical decision or sentence, which presents a coercive act as a consequence of a certain condition or presumption. Such a construction of a norm is appropriate to the norms of criminal law and administrative infringements, but excluding norms that recommend and define, that express the goals of a system, structure of an organisation, social values and principles. A dynamic legal system, on the contrary, integrates all the norms into a unitary whole.
At the same time the dynamic approach to a legal system creates preconditions for eliminating the paradoxes arising from the treatment of the state as a legal person. These paradoxes often stem from a narrow methodological starting point – the state. It may easily happen that the issues pertaining to self-regulation of a state rise to the fore and prevail the state then, forgetting why and in whose service it was established in the first place. If we accept the basic requirement of a systematic approach that the object of research has to be viewed within the framework of the system to which it belongs, it becomes necessary to view the state against the background of society as a form of corporate life of the people. The second essential component of society is civil society, constituting the part of society which does not belong within the realm of the state. *10
Society is a self-regulating human collective, called “the people”. Within society, social relations and institutions develop, it is the bosom of the society that created and nurtures the state, that is to serve the society, and not vice versa. In a society the people occupy the dominant position, they are the substance of Society as a whole and of its components, and thus one of the essential prerequisites for transfer to a condition of genuine rule of the people and sovereignty of the people, to deliverance of the people from the role of being a state body, thus making the whole ordering of the affairs of life society-centred. If the state is an organ of the self-regulating society, it seems senseless and absurd that the people as a sovereign carry and exercise the powers of the state and not of their own power.
The conclusion is: in retrospect it is possible to treat “legal system” and “legal order” as synonyms, but the process of development manifests their conceptual separation. A legal system is first and foremost based on a theory of systems and a systematic approach, and paves the way to the people’s self-regulating independence. Legal order, on the other hand, is an older and more moderate concept, rooted in the principle of the state as a legal person.
Time factor, necessities of life and knowledge. Three factors proved to be indispensable in developing the legal system, namely the time factor, the necessities of life, and knowledge, though these do not function in one and the same direction. Half a century of foreign power left Estonia with a complicated inheritance of which we wanted to liberate ourselves quickly, to win back time. But history teaches us that whereas quick changes of government are possible, economy and democratic ordering of life need roots and time to become rooted, in other words an evolutionary development. We are the witnesses to the fact that the Programme of Self-Supporting Estonia (Isemajandav Eesti, IME), administrative, ownership, land, agricultural and other reforms that were fast and vigorously undertaken as early as the period of perestroika, that is before regaining our independence and completion of the Constitution, have got stuck. Revolutionary changes are inappropriate in this framework. It is possible to adopt just and promising laws with exultation, but the fruits, as a rule, prove to be bitter. The reality is that clear objectives and correct solutions can not be made up or imported, instead these have to be derived from specific conditions, from the logic of development, from the people’s will and from existing opportunities.
Here lies one of our gravest drawbacks, namely the inability to analyse and assess concrete situations, to ground reform projects. There will be no miracle: wishes that have not been balanced with real possibilities and necessary measures are not destined to come true. It is not unusual that progressive ideas are suppressed into forms unnatural to them. This is what happened with our law during perestroika, the period of reform. The Programme of Self-Supporting Estonia aroused enthusiasm, hope and the support of the people, but also brought about a new phenomenon, namely the cult of law. It started with unrealistic planning of the creation and adoption of the legislation to ensure IME. It was hoped to draft more than one hundred legislative acts within a couple of months, with some 2000 – 3000 normative acts of developed democracies having been set as a general model. Time was short, accelerated action had to be taken, and thus an unexpected, perhaps even unique legal decision was taken: to give up the habitual technological process of adopting single laws and to transfer to the production line method of adopting sets of laws. *11
Fortunately, in the case of IME the production line was not started, as it was inappropriate and because other problems emerged. From the spoken and written materials of the time one gets the impression that behind the idea of producing and adopting sets of laws was an understanding that from the point of view of reform it is most important to draft and adopt a law or some other normative act. This attitude gave reason to see the law being converted into a fetish. *12 Law as an independent phenomenon was expected to spontaneously implement itself, to become alive and reality. In fact, it does not have such supernatural powers. Many legal acts that have not been enforced stand witness thereto and are accompanied by the complaints and dissatisfaction of the people. We are facing a phenomenon that legal fetishism is shading into legal nihilism, which emerges from the existence of a great number of legal acts with no means of realisation and from a sceptical attitude towards a positive effect of law in general.
These pre-constitutional extremes, in many ways connected with IME, were soon eliminated, but new difficulties arose in the process of creating a legal system based on the Constitution, which was not only necessary but also inevitable. We have constantly been plagued by the deficit of experienced drafters of laws and other legislation. The Government of the Republic and the Ministry of Justice have, on several occasions, set up committees in order to find ways to improve activities related to law creation. The laws which should be drafted before all others have repeatedly been mentioned but with little consequence, for the principal drafters have remained unchanged. Those who entered the field of legal drafting for market economy reasons were crestfallen and they let down everybody else.
In our present situation it is of cardinal importance when and how a working group will manage to cope with its tasks. Compared to drafts pertaining to key issues of a legal system, the simpler legislation is drafted and debated more rapidly, thus seeming to be of primary importance. The direct implication of the situation is that the process of developing a legal system in general and the process of law creation in particular lack a strictly purposeful quality. In fact, it is functioning on the principle of trial and error. The lack of purposeful quality does not mean not knowing which acts are needed and by what time, it means that the drafting process of such legislation is out of control and results are achieved accidentally.
The quality of legislation. The fact that legislative acts have been drafted on a trial and error basis has affected their quality. An important indicator of quality is the regulative capability of a legal act. Although generally the laws have become more pithy, highly abstract “skeleton” laws still dominate. On the other hand, the number of laws striving to be more specific is growing. Thus, two opposite tendencies collide: on the one hand abstract, even declarative laws of poor regulative quality, which can not be applied without specifying acts of the Government of the Republic, and directly regulative laws, which decrease the proportion of regulating acts of the executive bodies on the other.
There seem to be three motives for the emergence of “skeleton” laws. The first and most innocent among these arises when the law creators lack sufficient knowledge of the sphere to be regulated and do not know the objective of a legislative act. Quite frequently legislators try to compensate for a lack of factual material with vague and indefinite wording. Another motif is related to politics. Very often the laws contain strong political rhetoric and are of weak regulative quality, so that they can be interpreted according to whatever is useful. A noncommittal legal act may be a solution to a political stalemate. The third type of legislators is driven by a passionate desire to reform a real situation according to their own beliefs, no matter what the price and the opportunities for lasting progress. The main drawback of a skeleton law created with this last motivation is superior treatment of the present, an unwillingness to learn the lessons of life and make an effort to balance the reality with acts oriented to the future. If in the case of the first motif there was not enough factual material, then in the latter case there was no desire to rely on the facts.
Assuming that we chose to strive for a society based on the rule of law, it is inevitable to support the dominance of legislation based on real life, and not on the basis of what seems to be true yet detached from life. This is a general requirement of the Constitution (§ 3(1)).
Secondly, observance of the requirements of complexity and a systematic approach should be stressed as being among the indicators of quality of legal acts. These principles become rooted especially in the process of drafting the legislation and only after that are manifested in the relations between the acts. This has nothing to do with the legislative production line method of the IME times. Yet it does encompass simultaneous drafting of related acts and their consideration by the Riigikogu, in order to avoid discord. The cases of the Courts Act, the Status of Judges Act, the Emergencies Act and State of Emergency Act *13 , constitute experiences of the kind. Also, in the explanatory letter to the draft of the Legal Chancellor Activities Organisation Act it was mentioned that related issues were co-ordinated with the head of the working group drafting the Constitutional Review Court Procedure Act. Co-operation of this kind should be more tight, to avoid friction between laws. This was the position reached by the group set up to give expert opinion on draft laws springing from the Constitution, in its advisory proposals to the members of the Riigikogu, the Government of the Republic, and ministerial officials who participate in law creation. *14 The expert group also found it expedient that the drafts that have been developed in co-operation should simultaneously be processed by the Riigikogu.
The requirement of complexity is premised on the condition that not only related drafts and laws, but also drafts of legal acts already issued pursuant to, and for the implementation of, laws should be harmonised. Before World War II it was customary in Estonia that together with a draft law all drafts of governmental regulations and ministerial acts, necessary for the implementation of the law, were submitted to the Riigikogu. This enabled the legislator to check whether the projects of implementation acts conformed with the content and the spirit of the law, and to ensure expedient adoption of the law. The re-introduction of this validated approach would be a great step forward in the creation and development of the legal system. The more so since it has become a bad practice with us to be late with the drafting of implementation acts. A dramatic example of this was presented by the Legal Chancellor in his speech before the Riigikogu on 26 December 1996, concerning the Land Readjustment Act, *15 which was adopted on 25 January 1995 and became effective on 20 February 1995. Yet even today some of its implementation acts are non-existent. The situation is even worse with the Planning and Building Act, which entered into force on 14 June 1995. Only one third of its 18 implementation acts have been completed and entered into force. *16
The standard-technical references ensure that the legal acts form a system and are coherent. Very often laws refer to the regulations of the Government of the Republic, as well as to regulations of ministers, representative bodies of local governments and local administrations, which do not have real cover. It is generally recognised that such cases are not references but constitute delegation, because it is possible to refer to an existing legal institute or to a specific act, its part or articles. There are essentially two types of references: genuine or legal references, and nongenuine references or references to acts, where these two have a different practical value.
A genuine reference never points to a specific act or code, instead it leads to a legal institution, and then to norms of a pertinent general act. A nongenuine reference states the name of the act, its part or article. In the case of a nongenuine reference the provision to which reference is made becomes, in a sense, a part of the referring provision, and when interpreting and applying the referred provision it is always necessary to consider the content of the referring provision, as these two lead a common life. If the legislation containing the referred act is cancelled, even when the referring act is not amended, the referred provisions will remain in force by virtue of the referring provision, and are subject to application as part of the referring provision despite the fact that the referred act has been declared void. If the referred provision is amended, the former wording of the provision is contained in the referring provision.
The situation is different with genuine references. The referred provisions do not become a part of the referring act, because no specific provision is referred to, instead reference is made to a specific institution. These then become part of the content of the referring act, and not the provisions that set them up. If such provisions are cancelled or amended, the referred institution will change to the amended extent, as will the content of the referring provision. If an institution is wholly cancelled, the reference will not be applied. *17
These rather essential differences between genuine and nongenuine references, which very often are not taken into account in practice, should be borne in mind in the process of law creation, amendment and quashing of legislation, as well as in the process of enacting law.
The third quality indicator of law creation is how closely the principle of legality is observed. The peculiarity of this indicator is that decisions concerning the legality of acts have to be taken on the basis of data reflecting the activities of the Legal Chancellor, the Supreme Court and the State Audit Office, the central institutions for the review of constitutionality and legality in Estonia.
During the period from October 1992 to 1 January 1998, the President of the Republic did not promulgate 27 laws, referring them back to the Riigikogu for re-consideration, with his reasoned objections. The Riigikogu made changes in 20 of the laws. In six cases the President petitioned the Supreme Court, which satisfied five petitions, whereas the petition pertaining to the National Coat of Arms Act was not satisfied. In two cases the Riigikogu did not make any amendments, but the President promulgated the Acts without recourse to the Supreme Court. Despite the fact that the Supreme Court declared the President of the Republic Activities Organisation Act unconstitutional in June 1994, the Riigikogu has not started new legal proceedings as yet.
The Legal Chancellor has had to deal with the violations of the principle of legality most frequently. His purview is the widest. Under § 139(1) of the Constitution, the Legal Chancellor is an independent official who reviews the legislation of the legislative and the executive powers and of local governments for conformity with the Constitution and the laws. Although the majority of the Legal Chancellor’s activities are in the form of ex-posteriori control, he has made successful use of preventive measures, such as participation in the sessions of the Supreme Court and the Government of the Republic using his right to speak, reception of people in his office and during his business trips, and work with correspondence.
The participation in the sessions of the Supreme Court and the Government of the Republic enables the Legal Chancellor to direct discussion towards legal paths, to avoid rushed, unanalysed solutions. The stenographs of the sessions of the Riigikogu reveal that the yearly report of the Legal Chancellor of his review activities contains not only analysis but also suggested remedial action and visions of the future, and thus providing valuable insights to the legislator. *18
The Legal Chancellor’s contacts with people have grown. In 1996 the Legal Chancellor saw 222 people at his office and 100 people outside. In 1997 these figures were 218 and 34, respectively. The total number of incoming letters has stabilised at around 325 per year. Among oral and written appeals the prevailing issues pertain to the return of unlawfully expropriated land and property and pertinent court decisions, to privatisation of dwelling space, to the use of peoples’ capital bonds, to tenants’ rights, to constitutionality of legislation, to pensions, responsibility, etc. The conclusion to be drawn is that the legal regulation of these issues leaves much to be desired. The ideal law would draw no appeals for review.
Contacts with people and processing of correspondence are necessary, but the review of legality of legislation still remains the main task among the activities of the Legal Chancellor. If he finds that legislation passed by the legislative or executive powers or by a local government is in conflict with the Constitution or a law, he must propose to the body which passed the legislation that it brings the legislation into conformity within twenty days. In 1997 the Legal Chancellor made 57 such proposals, 50 of which were addressed to local governments. In the majority of cases the bodies reacted to the proposals and made the necessary amendments. If the legislation is not brought into conformity with the Constitution or the law within twenty days, the Legal Chancellor may propose to the Supreme Court to declare the legislation invalid. From June 1993, when the first constitutional review case was decided by the Supreme Court, to 1 January 1998 the Legal Chancellor has addressed the Supreme Court on nine occasions, three of the petitions were not satisfied, two because the grounds for the petitions had ceased to exist.
As of 1 January 1998 the Supreme Court has reviewed 26 cases of a constitutional nature, 11 of which were submitted by courts, the remainder filed by the President and the Legal Chancellor. The rule is that if a court comes to the conclusion that an applicable law or other legislation is in conflict with the Constitution, it shall declare the legislation unconstitutional, shall not apply it, shall inform the Legal Chancellor and the Supreme Court of the decision, which initiates constitutional review proceedings in the Supreme Court. *19
The legislation proposed to be declared invalid or in conflict with the letter and spirit of the Constitution, included six acts which had not entered into force, nine acts which had entered into force, four resolutions of the Government of the Republic, two regulations of ministers and five acts passed by local governments. The Supreme Court has satisfied 19 petitions and rejected seven, three of which concerned legislation that had been declared invalid by the pertinent body before the court decision was made.
The petitions to and the decisions of the Supreme Court indicate that it is the legislature that most often offends against the Constitution. Apparently this is due to the fact that the laws are, understandably, the focus of review, because their conflict with the Constitution may result in grave consequences for the whole society.
The violations of the Constitution can be grouped differently. On the basis of their frequency in the review cases so far the violations of fundamental rights and liberties, stipulated in Chapter II of the Constitution, predominate. The most typical violations are restrictions of rights and liberties by administrative acts, although the Constitution allows only for restrictions established by law. Such cases include not ensuring the right to non-violation of family and private life, home and property. The applications repeatedly refer to §§ 10, 11, 13, 15, 26, 32, 43, etc. of the Constitution.
Second in frequency are deviations from the principle of separate and balanced powers, established by the Constitution. These relate, first of all, to the status of the President of the Republic, his relations with the Riigikogu and the government, also to deviations from the constitutional principles of governing the state, the National Coat of Arms Act, Orders of Merit Act, The President of the Republic Activities Organisation Act, Peace-Time National Defence Act and the Riigikogu Administration Act have all been disputed.
The third group of violations results from exceeding the competencies prescribed by the Constitution. The Government of the Republic has made two types of mistakes: on the one hand it has resolved matters which can be resolved only by laws, and on the other hand it has delegated to ministers such tasks that the legislature intended to be in the purview of the Government. It was under such a delegation that the “Directions for the Extension of Time-limits for the Issue of Residence and Work Permits to Foreigners” was approved by the regulation of the Minister of the Interior dated 3 February 1994. *20
Considering that the Riigikogu passes approximately 200 laws, decisions and addresses a year, and that the Government of the Republic issues approximately 350 regulations and 1500 orders a year, the number of legal acts violating the Constitution is not large, but the effect of such tainted legislation is similar to that of a drop of tar in a honey pot. More depressing is the fact that many state bodies cause harm to the legal system, forgetting the principle of a state based on the rule of law, and that legal norms apply to them as well.
Thus, the quality of a legal system may be affected, on the one hand, by adopting legislation that is in conflict with the Constitution and law, and on the other hand, by the fact that the valid law itself is susceptible to unpunished violations of norms, as the question of responsibility and some other issues have not been legally regulated. This is again something which has been left undone.
Gaps in the legal system. Although a legal system is a developing and improving dynamic system and, as such, will never be completed, it does not tolerate gaps or ambiguous solutions. The present legal system is not free from such faults. This is usually attributed to difficulties in the transformation from the totalitarian to the Western system, to law creation fettered by remnants from the past, to a lack of experience, and to a pace of life with which the legal system can not keep up with.
These reasons do exist and exert an influence. It is also true that we can not deny the role of political will, and that six years of practical experience and theory gave reason to expect much more. Very often an analogy is made that the state bodies and authorities act as if they only live for today, especially in the field of theory and future prospects. They start thinking only when faced with a problem. Let us view, for example, a standard provision of many constitutions: generally recognised principles and rules of international law are an inseparable part of the legal system of the state. In Estonia this principle is stipulated in § 3(1) of the Constitution. The debate concerning the nature and role of such principles and norms became more animated in 1996, on the occasion of accession to the European Convention on Human Rights. Although by now the Convention has been ratified and has entered into force, *21 there is still no agreement on disputed issues. There is no consensus among the European countries, either.
In general, three approaches to the relation between the Constitutions and Convention exist in Europe. The most cardinal of these exists in the United Kingdom, where the Convention is not a part of the legal system, instead it is an independent set of rules. In some countries, such as Austria and the Federal Republic of Germany, the Convention is treated as an act equal to the Constitution. The third and the largest group of states has adopted the dualistic approach – the Convention is a part of the domestic legal system, but is not on the same level as the Constitution. Estonia has decided by §§ 3 and 123 of its Constitution to join this last group. § 123, specifically, states that if laws or other legislation of Estonia are in conflict with international treaties ratified by the Riigikogu, the provisions of the international treaty shall apply.
The provision speaks of “laws”, meaning that in our legal system the Convention ranks between the Constitution and the laws. If laws and the Convention are in conflict, the provisions of the Convention shall apply. If the Convention and the Constitution are in conflict, the pertinent provisions of the Constitution shall be applied internally. The situation is different if the dispute is referred to the court in Strasbourg and reaches the international level. The court in Strasbourg considers only whether a procedure or an act is in conformity with the Convention and does not check whether the Convention is in conformity with the internal Constitution of the concerned state. Problems arise when the Constitution grants lesser rights or imposes more restrictions than set forth by the Convention. Then the issue becomes international.
The theory discriminates between “ordinary” and “constitutional” laws. The question is whether the generally recognised principles and rules of international law are placed between the Constitution and the ordinary or the constitutional laws. It seems that it is of internal importance to differentiate between ordinary and constitutional laws, and it is not important in the case of international conventions and treaties. One of the reasons is that pursuant to the Constitution the constitutional and the ordinary laws differ only by the procedure they are adopted: the former are adopted by a majority of the members of the Riigikogu, the latter by a majority of affirmative votes.
The majority of the constitutional laws, set forth by § 104(2) of the Constitution have been adopted. Several of these have repeatedly been amended, some have even been renewed. Only sub-paragraph 15 of the second paragraph of the same section is problematic, as it provides that acts pertaining to foreign and domestic borrowing, and to proprietary obligations of the state are also constitutional laws. Firstly, the wording is ambiguous in that specific laws are not cited. This puts the legislator in a difficult position as the majority of laws give rise to proprietary obligations upon the State. Secondly, reference is made to subjects concerning foreign and international organisations as well as internal subjects. It is not clear what was intended. The commission for the legal expertise of the Constitution suggested that this provision should be specified to the effect that the majority of the membership of the Riigikogu would pass and amend “acts pertaining to foreign and domestic borrowing and acts approving agreements by which the Republic of Estonia assumes proprietary obligations”.
The Courts Administration Act is also among the constitutional laws, and is presently manifested in two acts: The Courts Act and the Status of the Judges Act. These acts started the judicial reform of the newly re-independent Estonia. By now the first stage of the judicial reform – organisational and structural changes – has been completed and we have reached the stage of substantial improvement. Despite the fact that the acts have been amended, they no longer meet the new tasks and development requirements that the courts are faced with. In addition to traditional judicial functions such essentially administrative functions as registering landed property and keeping regional registers of companies have been added.
It has already been few years since the Ministry of Justice drafted the Courts Administration Act, which was to reflect the new tasks of courts, appropriate to the changed situation, but unfortunately, under the label of further democratisation of the administration of justice the draft actually restricted judicial independence. That is why the Supreme Court proposed its own plan of development to be realised through the Courts Administration Act. The plan set forth the following:
(1) to eliminate the situation that the activities of the courts are regulated by different acts;
(2) to put an end to the expanded participation of the executive in the organisation of the courts’ activities;
(3) to create conditions necessary for the development of an integral court system;
(4) to ensure judicial independence in resolution of court cases and, furthermore, in managing its internal life and resolving financial-economic questions;
(5) to set up a democratic, external administrative body, appropriate for the judicial system, bearing in mind the Hungarian experience.
These principal solutions have not been met with understanding by the Ministry of Justice. The new draft of the Courts Administration Act, worked out by the ministry, contains even higher power ambitions, characteristic of an administrative state, thus violating the principle of separate and balanced powers stipulated by § 4 of the Constitution. How else could we interpret the fact that the first and second instance courts have been placed within the sphere of government of the Ministry of Justice and that ministerial supervisory control is extended to them!
The legal position of Estonia’s highest court – the Supreme Court – is different from the customary one, as it reviews judicial decisions as the final court of appeal and is also the court of constitutional review. In governmental circles, the question of setting up an independent constitutional court has been posed. The Supreme Court, though, is of the opinion that neither the conditions nor the time is right for establishing an independent constitutional court. It does consider it necessary to adopt a new Constitutional Review Court Procedure Act, which would:
(1) make the court more publicly accessible;
(2) widen the scope of issues subject to judicial review;
(3) widen the circle of subjects entitled to petition for review;
(4) under established conditions, review cases in a written form;
(5) establish a special procedure, lacking today, for examining and deciding issues stipulated by § 83(1), § 64(2)4), and § 83(1) of the Constitution and § 16(1)3) of the State Audit Act.
The Constitution states that the procedures for referenda, state of emergency, state audit, resolution of labour disputes, etc. shall be established by law. These laws have come to be called constitutional laws in the broader sense. The Constitution expressly states that the above issues may not be resolved without a pertinent law. If there is no appropriate law, the pertinent provision of the Constitution constitutes a rule that authorises the adoption of the law. If the pertinent law has been adopted, the constitutional provision is transformed into a nongenuine reference to a law.
We have to admit that some of the laws do not exist and this obstructs the implementation of the Constitution. For example, the Arrangement of State Defence Bodies Act has not been drafted yet. The need for the act arises from § 48(2) of the Constitution, which stipulates that the establishment of organisations and unions which possess weapons, are militarily organised or perform military exercises requires prior permission, for which the conditions and procedure of issuance shall be provided by law. The term “conditions and procedure” means that the pertinent act must contain both substantive and procedural rules. It must be as regulative as possible. There is no sense in relying on a tall pyramid of implementation acts, this is excluded by law.
We do not have the Peaceful Assembly and Meetings Act, either. The lack of the grounds and procedure and restrictions in this field has already caused problems. Representative bodies of local governments in Sillamäe and some other places have tried to regulate the grounds and procedure by their own legislation. Or, let us take § 46 of the Constitution: “Everyone has the right to address state agencies, local governments, and their officials with petitions and applications. The procedure for responding shall be provided by law.” It appears that the Constitution differentiates between “petitions” and “applications”. In the act related to responding to petitions we find no such differentiation. It treats both terms equally in the formal sense. Other countries have a long practice of recognising ordinary oral and written applications and petitions, which are of essentially different nature. *22
A petition has its peculiarities in comparison with the ordinary application. Firstly, a petition is meant to draw attention to special problems of general concerns and response which the state and local authorities should resolve. Secondly, a petition brings forth the problems of a certain interest group, manifesting the interests of either only this group or more general interests of other interest groups as well. Thirdly, a petition constitutes a substantial initiative and not just a mere declaration, but it is not an initiation of a law draft, either. Although a petition may serve as an incentive for legal regulation of the issue raised. I have to concur with the Legal Chancellor in the opinion that we have to speak of a gap concerning petition on the level of law, and also on the level of democracy.
The Legal Chancellor who, in his yearly address to the Riigikogu on September 25 concerning the constitutionality and legality of law creating acts disputed the wide-spread view that we already had all, or nearly all, the laws necessary for considering the Constitution having been implemented by its sixth year in force. The situation is that in addition to those already mentioned we lack several other important laws, such as: Defence Forces Administration Act, Social Guarantees and Insurance of the Members of the Defence Forces Act, Defence League Act, Confidential Information Act, Law-creation Act, Alcohol Act, Tenancy Act, Legal Aid Act, act regulating the service of teachers, Islands’ Act, etc., and this list could be extended to 60 items.
Thus, the Constitution and constitutional laws in the narrower and the broader sense constitute the skeleton of a legal system. Although six years have passed, the skeleton is not yet complete. Real life is a tough critic, bringing out cracks in the skeleton of the legal system, as well as drawbacks in the lower links of the legal system, in the law creation and practical activities of the executive.
2. Legal System Through a Social Prism
The need for a social criterion. It springs from the objective regularity that the provisions and ideas of the whole legal system and of the Constitution, which forms the basis of the system, are never adequately realised, just as ideas and realities never meet. Law creation and realisation, just like any other human activity, are essentially subjective and purposeful. Human activity illustrates how actions are aimed at achieving final goals.
It is possible to form a mental picture of a goal as a result of human activity, to create a rule or a model thanks to the comparative independence of the mind. It means that man can link and develop his thoughts so that they antedate the natural flow of life. That is how the mind can be detached from the direct reflection of reality and how a goal can obtain a content that does not exist in reality. In the case of legal rules and their implementation, especially in the case of radical reforms, the content of the goal is precisely what is being tried to achieve, what has to emerge, but what does not yet exist. Moreover, the gap between the goal and the reality is constantly widening, as deepening awareness of the world and the opportunity to use the experience of others render it possible to set even bolder objectives, which demand that the existing reality be reformed.
It is understood that the subjective nature of a goal does not mean that arbitrary mental constructions have to be created. Goals that determine the practical activities of the man depend, in their turn, on objective conditions, social needs, interests and opportunities. Only such goals that meet the reality and the regularities of its development, form the subjective conditions for practical reforming action. Thus, a goal as a regularity of cognition and practice, constitutes a peculiar node, where the objective leads to the subjective, where on the basis of the reflections of the reality a desired future world vision is created and the movement in the opposite direction – from the subjective to the objective, from the mentally created world to the practical building of the world – begins. This is how a goal constitutes a direct motif before the practical activities are undertaken, it is an incentive that creates the power of attraction which directs activities, it is a regulator of activities.
It is inherent in every goal, as well as in every legal rule, due to their source, emergence and development tendency, to overcome ideality, to liberate itself from its subjective form and to become an objective result of an activity, to become a new material reality. This takes place in the course of practice, that is in the course of material, objective activities, during which necessary material and ideal measures are employed to serve the goal. The measures belong to the goal. The fact of how the measures and goals are related and what these measures are like, determines the achievement of the goal to a great extent. Without real measures no goal can be a direct model of activities.
Considering that a goal is subjective and thus depends on the cognitive level of activities, and that there is no rigid one-to-one correspondence between a goal and the means for its achievement, the deviations from the transformation period subjective goal to an actual result are natural. In this framework the fact of a deviation becomes essential and of foremost importance, as well as the existence of feedback to trace the deviations precisely, because the difference between the goal and the reality, or, to use the terms of cybernetics, between the given and the actual situation of a system, is the motive power of management, its feeding source and stimulus. *23 Feedback messages about deviations call for corrections and change management into a continuous, sustained process.
A somewhat inconsistent situation arises: the deviations from the goal are not only objectively unavoidable and inevitable, but from the point of view of management, also indispensable, constituting an obligatory part of the mechanism. Otherwise, management would lack its significance, its stimulus.
It is important to differentiate between two types of deviations or errors. Firstly, there are differences between the initial goal and the achieved result, separated by a time interval which, depending on the goal, can be longer or shorter; and secondly, differences between the actual and conceded state of the system, which fixes the discrepancy between the actual situation and the goal at one and the same moment in time. While it is possible to achieve a goal, it is never possible that the conceded and actual state of a system, the goal and the reality coincide within a system at one and the same time. This is not possible because a realised goal is no longer a goal, instead it is a result, the actual state of a system. From the point of view of procedure the reality is but a realised form of a certain earlier goal.
These basic views on the interrelation between the subjective and the objective help better to understand the results, difficulties and the reasons of difficulties of the realisation of a legal system.
The thorny path to the realisation of legal system. The path is thorny first and foremost due to the fact that no overall accounts about the legal system as a whole are being kept. The only national authority functioning on the principle of feedback is the State Audit Office. Under the Constitution the State Audit Office audits the economic activities of state agencies and other state organisations, the use and preservation of state assets, the use and disposal of state assets which have been transferred into the control of local governments, and the economic activities of enterprises in which the state holds more than one-half of the votes by way of shares, or whose loans or contractual obligations are guaranteed by the state (§ 133). The State Audit Office reflects the economic activities of the state especially through deviations from the valid legal order.
These are mainly manifested in ignoring the procedure for the use of the state budgetary funds. Even the State Chancellery and the Ministry of Finance, the Ministry of Justice and the Ministry of Economic Affairs have not been able to avoid mistakes in this sphere. During 1997 the State Audit Office found 432 violations of legislation. Transactions with total value of 316.6 million kroons were examined. 90 million kroons of the sum were considered to have been used illegally or not for the prescribed purposes; taxes and other sums not transferred to state budget amounted to 116 million kroons; the revenues, other financial funds and material values which were not imputed amounted to 25.2 million kroons.
Although the State Audit Office referred to the positive role of the State Treasury (which started its activities in 1997) in making disbursements from the state budget, it did not prevent all violations of the State Budget Act, as the financing took place according to the approved budgets of agencies: frequently the state agencies undertook financial obligations in excess of their budgets, arbitrarily displaced fixed allocations, paid big sums in advance at the end of year and dipped into other expenses to decrease the sums which had to be paid back to the state budget or offset. As with the previous years there were cases of extravagance in rewarding, compensating travelling expenses, use of state cars, and procuring inventory. The financial resources obtained from the Reserve Fund of the Government of the Republic and from the non-budgetary Ownership Reform Reserve Fund were not always used for the prescribed purposes. There were many inconsistencies in bookkeeping operations and accounting statements caused by not observing the Accounting Act and the regulation for the arrangement of bookkeeping of budgetary agencies, approved by the Minister of Finance. *24
The number of violations discovered has decreased in comparison with the previous years, whereas the illegally used sums and sums considered not to have been used for the prescribed purposes have increased. In 1994, these amounted to 72 million kroons, in 1997, the total was up by 18 million kroons. This means that the offences have an ever increasing impact on the society.
It is possible to draw certain conclusions concerning the implementation of the legal system on the basis of state statistics. Unlike the State Audit Office, it does not reflect the situation through negative deviations, instead it fixes the quality and quantity indicators of the phenomena of life at certain intervals. Statistics give comparative data about what has been achieved, but does not answer the question of whether the result was obtained lawfully or not. For these purposes the results have to be made commensurate with law.
The official statistics operated pursuant to the law *25 passed long before Estonia regained its independence. The State Statistics Agency of the Estonian SSR was luckier than the People’s Audit Committee, which was liquidated long before the State Audit Office started its activities. The Statistical Office continued its activities and was gaining strength. Topical publications of the agency pertaining to industry, agriculture, animal husbandry, forestry, foreign trade, expenditures of environmental protection, investments into capital assets, etc. reduce the deficit of information about the socio-economic sphere. The more the statistical data bases expand the more the shortcomings become apparent:
(1) the statement forms used by the financial, banking and statistics agencies and economic organisations, the way the indicators are grouped and the methods of presenting the data are often unharmonised;
(2) due to substantial changes in the indicators they are not always comparable by year;
(3) the statistics system is not integral, this holds true specifically about the way the structure and staff of public institutions are reflected.
Hopefully, the new Official Statistics Act, adopted on 11 June 1997 *26 , and the official statistical questionnaires, approved in accordance with the Act by the Minister of Finance, will help to regulate the statistics and do away with the shortcomings. The new Act states that official statistics are aggregated and generalised information which is obtained as a result of collection and systematic processing of data from official statistical surveys. They reflect the economic, demographic, social and environmental situation of Estonia and changes occurring therein, whereas the emphasis on the reflecting of social situation and its changes is new. This also means more emphasis on finding out and expressing the effect of law.
While the data of the State Audit Office and official statistics give an overview of the factual realisation of law, albeit differently, the assessment of the results is based on certain values and thus the opinions may not coincide. Our reforms and liberal market economy are vivid examples of this. Different opinions give the impression that Estonia has two faces: on the one hand the myth of extremely liberal and successful market economy *27 is being presented to the rest of the world, and on the other hand there is real life wherein 10% are very successful, 15% are cut out and the remaining 75% have serious problems with managing their daily lives. The fresh publication of the Statistical Office “Social Trends” shows that the process of stratification was rapid and took place within the years 1992 – 1996.
The liberal market economy and successful reforms are mostly being talked about by those in power, trying to appease the dissatisfied elements within the state and curry favour with foreign countries and visitors in order to find foreign investors and to be accepted to the European Union and NATO. Even Western observers have judged our radical reforms successful. Estonian public opinion has been very distrustful towards the eulogy of our development. M. Lauristin and P. Vihalemm attribute the distrust to the differences of criteria: for those outside Estonia the indicators of economic and political development are significant, whereas when looking from within the high price of the changes to in the forefront. In Estonia, similarly with many other post-communist countries, the birth rate and average lifetime have decreased, the unemployment, crime, drug addiction, social inequality have increased and human development has deteriorated. *28 These are signals of danger.
Estonia is perceptive to words of wisdom and appreciation from the rest of the world. The information about what this or that Western prominent figure has said about our achievements and prospects has been interpreted optimistically: courtesies have been taken for praise and ambiguous promises for granted. The appreciation and advice from outside may be useful but these have to be weighed carefully. An outside view is often more rational as it is spatially distant and allows for comparisons. At the same time the outside rationality lacks the intuition which is characteristic of the inside awareness.
Estonians’ own assessments of reforms and their consequences are based not only on the social factor but also on different theoretical approaches, research, practice, party policies, and personal experience. As none of the reforms has been completed, it would be expedient, on the bases of the written and oral word, briefly to give some opinions on what has been done so far: (1) the market is not and can not be the only regulator of economic life, because the market has no internal immunity to ensure fair competition; (2) we can speak about economic growth but in general terms, as several important branches of economy are struggling along and the way profits are distributed forces the members of the society to protest; (3) in the Estonian economy prosperity and destruction go hand in hand; (4) prices are going up, and the fruits of the liberal market economy have penetrated people’s homes; (5) the development of the Estonian economy is to a great extent connected with the expansion of the right to consume; (6) our primitive economic policy can not be successful; (7) how should we interpret the situation where our super-open and liberal economy is successfully advancing, while Estonia fell from position 29 to position 71 in the UN human development index; (8) there were too many reefs for the Estonian economic reforms which now are emerging on the surface.
As we can see, the implementation of the Estonian legal system is just as thorny and difficult as it is for other states in transition. The fact that from time to time we are trying to attain distinction among our Baltic companions – Latvia and Lithuania – and even offering our help, illustrates nothing else but our own lack of self-criticism.
Implementation difficulties arising from the legislation. In the process of law application there is always the question of what the legislator intended to achieve with one or another provision. It is not seldom that the wording of a legislation is incomprehensible, ambiguous or resembles a cryptic crossword. This holds true especially for reform acts and their implementation acts, but also for other legislation of the transition period.
There are reasons why the ambiguity of a goal becomes apparent during the transition period, because the latter is perceived as a period of systematic changes in the whole society, resulting in a change in the type of society. *29 This means the transition from a totalitarian regime to a Western democratic market economy society. Its was a road unknown, and there was not any experience of other countries to draw on. In a stable society the participants in the creation of law are assisted by the smooth co-operation of the past, the present and the future, so on the basis of the positive orientation of the past and the analysis of the present it is possible to set rather precise goals and ensure their achievement. A transition period is oriented towards the future and therefore can not rely on the past.
This development tendency where the past becomes empty for the future was described by the famous Spanish philosopher José Ortega y Gasset, who has sometimes been called the last great European philosopher, in the 1920s. *30 At the same time he admitted: if there is no positive orientation to take from the past, there are still certain pieces of negative advice. The past does not tell us what to do, it tells us what to avoid. It is important that the creators of the rules know that.
The ambiguity of goals can also be attributed to the fact that the fundamental economic reforms *31 and several other reforms were started during the time when Estonia no longer considered itself a part of the USSR, although it was not independent either. On the one hand this called for prudence, on the other hand it ignited hope, hope even in the impossible. Moreover, all our undertakings, especially the ownership and land reforms, were undermined by the past. It goes without saying that it was captivating and elevating to continue from where we had been interrupted 50 years ago, to right a wrong, to compensate for the ownership lost and to expiate the tribulations of the dead by punishing the guilty.
A lot of questions emerged during the realisation of this noble mission. The procedure of returning property to and compensating the losses of those who had suffered through the mass repression during 1940 – 1950 *32 showed that mistakes are inevitable in the course of resolving cases dating back many years. Despite the danger signals, the goal of the ownership, land and agricultural reforms was determined to be to reform the relations which were based mainly on state ownership into relations based mainly on private ownership of land, to ensure the inviolability of property and free entrepreneurship, to rectify the wrong done by the violation of ownership, and to create conditions for a transition to a market economy. The emphasis was laid on the fact that during the ownership reform the unlawfully expropriated property would be returned or compensated for, whereas such return or compensation to former owners or their legal successors must not affect the legal interests of other persons and not promote further injustice.
It is easy to write in the law that further injustice must not be done. This gives rise to one more question: who is to compensate for the damages already done? From the general legal viewpoint this should be the duty of the guilty. The culprits were known, but nobody had any idea how to make them pay compensation. As those who sustained losses were compatriots, the Estonian state assumed the obligation. This has brought about both joy in getting and tears of suffering.
The goal itself, though, is noble and well presented and gives rise to no objections. The legal preparation and management of reforms has been curious. Every step in this sphere has been marked by a phenomenon from the past which could be called optimistic superficiality. This is first and foremost manifested in fanning unreasonable expectations and hopes, in the dominance of the emotional over the rational, mixed with inconsiderateness and irresponsibility.
This is proved by the fact that the goal was not linked to the means. The Ownership Reform Foundations Act was adopted without finding out the quantity of the unlawfully expropriated property which had to be returned or compensated for, without knowing the number of former owners, the costs of the reform, what surveys are necessary and who should finance the reform, etc.*33 It is possible to choose between the existing means to achieve a goal. It is possible to use different means to the same end, and the same things, development plans, finances may be used as means for achieving different goals. The more similar or common features things have, the better they can replace each other as means.
In Estonia’s agriculture, in order to restore historical justice, the immovable property was separated from the movable property, the land from other means of production. The majority of the tillers were deprived of everything, and now they are standing on the fringe of the fields, watching them becoming overgrown with weeds. Nobody needs the fields, as the former owners and their heirs to who the land was returned, have either become estranged from farm work or are too poor to invest in production.
Secondly, what was not done initially, had to be done later and impractical solutions had to be amended. The Ownership Reform Foundations Act was passed on 13 June 1991 and by 1 January 1998 it had been amended 19 times. The amendments themselves have been further amended four times and two amendment acts have been repealed. Repeatedly, the implementation provisions of the legislation pertaining to ownership reform have been amended. The Act of 29 January 1997 *34 alone enumerates 11 such amendments. It is difficult to keep a record of amending legislation and provisions of the Government, as these are so numerous and some amendments are contained in such acts where one would never think of looking for them.
It is necessary to amend laws and other legislation, this is a demand of life, it is conditioned by facts which did not exist or were not foreseeable when legislation was initially adopted. But the analysis proves that the number of amendments should have been smaller, that we have lived one day at a time and that actions have not had the right perspective. This can be said not only about amendments to the legislation pertaining to ownership reform. In 1997 the Riigikogu passed 28 decisions and 161 laws, the majority of which were amending acts. It can be attributed to the fact that a great number of essential laws, no matter how good or bad, have already been passed.
The basic problem is not the quantity of amendments, but their content and accessibility. The annoyance of the users of the legislation is fully justified, as they are forced to fight their way through the jungle of acts amending the amending acts only to reach a piece of text that is difficult to comprehend. Earlier, the incomprehensible wording of law texts was excused by the specific nature of the regulated sphere, now the dogma is that it is exactly the laws which amend the existing acts that have to be encoded so that nobody misunderstands their texts. *35 This is how the initial goal becomes misty. The acts amending the former reform acts hinted that the goal and the means have exchanged places, as the speedy implementation of reforms was considered to be more important than their actual content.
Thirdly, the thoughtless and emotional approach to reforms is illustrated by the fact that in the course of rectifying the historical wrong the reformers could not, or perhaps did not even want to, direct the land, agricultural and ownership reforms, which looked back into the past, towards the future. This is the very opposite of the future vision of the already mentioned philosopher José Ortega y Gasset. Economic reforms which are past-oriented do not give birth to real owners or producers, because the link between the property owned half a century back and its distant heirs is weak. An unexpected possession is like a heavenly gift, which is cherished but rarely used.
Such past-oriented reforms have most of all damaged agriculture. Agricultural reform has been going on for six years by now, but there is no end in sight. Estonia is full of subjects without their objects or the knowledge of when they will become an owner of an object. Those pessimists who suggested that reforms would take at least ten years seem to have been right. The courts may have their hands full for even longer. The future is even more obscure, as there is no answer to the question of whether Estonia needs its own agriculture, or whether we should find a new use for the land. Meanwhile agriculture is slowly dying out. Compared to the production figures of 1989, those of 1996 had decreased, for grain 1.5 times, for potatoes 1.7 times, for vegetables 2.6 times, for forage root crop 3.5 times, and for eggs 2 times. The Statistical Office has not declared a general decrease of production but the given data indicate a more than twofold reduction.
This leads to a sad conclusion: the thoughtlessness of the reforms, non-existence of customs and the fact that the countrypeople were left to their own account dealt agriculture a blow comparable to that of World War II. The war was imposed from outside, the reforms are the fruits of our own sapience. *36
The fourth, and probably the most serious reproach to the legislator is that responsibility has not been consistently introduced into the legal system. Responsibility and freedom are notions forming a pair, they are the opposite faces of the medal. As with freedom, duties and obligations are inseparably bound with responsibility. These principles are often not observed in practice. The rights and freedoms are attractively fought for, the obligations are being avoided.
It is symptomatic that drawbacks, mistakes and irresponsibility start at the top level. The essence of § 63(1) of the Constitution should be unambiguous: “A member of the Riigikogu shall not hold any other state office”. In reality, the participation of the members of the Riigikogu in administrative boards of state enterprises and holding other state offices became so frequent that the Supreme Court had to intervene. *37 Also, the fact that in 1997 the average amount of bank loan per one member of the Riigikogu was 200,000 kroons, prompts concern. Several representatives of the people are clearly aware that they bear no legal responsibility for the way they vote or for political statements in the Riigikogu or its bodies. For insulting or undignified statements in the press, radio, television and public meetings they bear responsibility in accordance with the general procedure. The attitude of the Riigikogu towards responsibility and discipline has, from the very beginning, manifested itself in the fact that the first thing that was left out from the Riigikogu Procedure Act of 1992 was the part regulating the participation of its members in the work of the Riigikogu, the public relations, and discipline during the sessions of the Riigikogu. The part was replaced by a single provision stating that the discipline in the session room shall be guaranteed by the Riigikogu chancellery.
The numerous faults in law creation, its timing, quality, consistency and successfulness, as well as in the optional realisation of the legal system to which the attention was drawn above, are related to irresponsibility to a greater or lesser extent. Irresponsibility functions secretly and anonymously. All types of offences, murder, robbery, fraud, smuggling, thefts, bank collapses, revelling with the tax payers’ money, counterfeiting, etc. have become part of our daily life. Inevitably the question arises: who are the culprits?, who is responsible for all this? Frequently, there is no answer, as the culprits are very seldom found. That is why Victor V. Vinkman from across the ocean had reason to doubt in 1995: are there any laws at all in Estonia that would enable prosecution for irresponsible transactions? *38 Even the laws are of no use sometimes. Corruption is not rare with us, we do have the Anti-corruption Act *39 , adopted on 19 January 1995, yet we do not know of a single case when this Act has been applied.
Finally, I would like to present an idea which I hope would help to understand our situation and look for novel resolutions. When well-known Estonian actor, stage director and theatre theoretician Voldemar Panso was asked whether it was easier for him to work now that decades of theatre work were behind him, he replied that his activities were becoming more and more difficult, because the sense of responsibility was continually growing. He said he was afraid of remaining the theatre’s slave.
The parallel from the above thought is: perhaps the irresponsibility of our present ordering of the affairs of life is to some degree conditioned by the fact that high positions are held by people who have not developed their sense of responsibility. This leaves room for optimism about the future.
pp.10-24