Constitutional Review under 1992 Constitution
The concept of constitutional review with its contemporary meaning was introduced into the Estonian legal system by the Constitution of the Republic of Estonia *1 of 1992. However, the relevant provisions in the Constitution are extremely brief and do not give a close insight into the ideas of the drafters of the Constitution about the system of constitutional review. Unlike many other modern constitutions, the Constitution of Estonia does not include a separate chapter or other subdivision dedicated to constitutional review, and there is no separate constitutional court in Estonia. Five main sections, located in different chapters of the Constitution, contain provisions dealing with constitutional review. The sections mentioned are: §15 (which is located in Chapter II – ”Fundamental Rights, Freedoms and Duties”) *2 , 107 (Chapter VII – ”Legislation”) *3 , 142 (Chapter XII – “The Legal Chancellor”) *4 , 149, and 152 (Chapter XIII – “The Courts”). *5 Actually, it seems that at the time of drafting the Constitution by the Constituent Assembly, there were other great political controversies (e.g. the question who should elect the President of the Republic) *6 , and the “technicalities” of constitutional review did not attract much attention.
As noted above, the Constitution provides only for a very general framework of constitutional review and leaves the more detailed provisions to be established by law. *7 According to the Constitution, the function of constitutional review is carried out by (1) the President of the Republic, while proclaiming laws adopted by the Riigikogu; *8 (2) the Legal Chancellor, with regard to consistency of the legislation passed by the state powers (both legislative and executive) and local governments with the Constitution and laws; *9 and (3) the courts, Supreme Court in particular. *10 Each of the subjects of constitutional review procedure is dealt with in greater detail below, while considering relevant provisions of the Constitution, the Constitutional Review Court Procedure Act *11 and other legal acts together with appropriate legislative history, where available.
However, one more explanatory remark must be made concerning the initiation and exercise of constitutional review. In the broader sense, one can say that the President, the Legal Chancellor and all courts exercise constitutional review. It is correct in the sense that they evaluate legal acts, compare them with the Constitution and take certain measures if they find a conflict between the Constitution and other legal acts. In a narrower sense, one can claim that the role of those institutions is limited to the initiation of the constitutional review procedure – the constitutional review itself, in the meaning of authoritatively determining if a legal act contradicts the Constitution or not, is carried out only by the Supreme Court. Since the choice of the terminology depends on the context, and on the emphasis, there is hardly any rigid division based on the distinction presented above, either in literature or in the present paper. *12
Constitutional review as exercised by the President of the Republic has the most limited scope among the three subjects of review, and is regulated with relative precision by the Constitution. Some further qualifications, however, must be made. According to §107(2) of the Constitution the President of the Republic may exercise the power of suspensive veto in regard to the laws passed by the Riigikogu. The text of § 107(2) does not specify, on which grounds a law can be vetoed. In principle, the grounds may be legal or extra-legal. *13 At first glance, the second and third sentences of §107(2) which provide the option for the President of the Republic to propose to the Supreme Court to declare the law unconstitutional seem to support the view that the President of the Republic has the power to veto laws passed by the Riigikogu only on legal grounds, since a proposal to the Supreme Court to declare a law unconstitutional on extra-legal grounds would be nonsense.
However, the second sentence of § 107(2) stipulates that if the Riigikogu again passes the law which was vetoed by the President of the Republic, unamended, the President of the Republic has two options: to proclaim the law or propose to the Supreme Court to declare it unconstitutional. The question of the meaning of these alternatives arises. If the President of the Republic could veto laws only on legal grounds, why should he or she have an opportunity to proclaim it on the “second round”? Why is the proposal to the Supreme Court not mandatory? According to one of the basic rules of legal interpretation, provisions of a statute should not be interpreted in a way that would make them senseless. Thus, the position of this paper is, that the President of the Republic can veto laws on extra-legal grounds as well. *14
This right of veto, however, is not unlimited. Prof. Jüri Põld, Justice of the Supreme Court, has pointed out that the limitations are set forth, for example, by §81 of the Constitution, which contains the text of the oath of office of the President of the Republic. *15 The President swears, inter alia, to exercise the power entrusted to him or her in a just and impartial manner. This means, according to Põld, that a veto used on extra-legal grounds should be applied only in the general interest under extraordinary circumstances. *16 Rait Maruste, the Chief Justice of the Supreme Court, has suggested that the veto can be used also on political grounds, the important aspect being that such presidential resolution must be reasoned in order to enable the Riigikogu to react to it adequately. *17 Thus, there is no clear consensus on the extent of the possible grounds of the presidential veto. Historically, the President could veto laws passed by the parliament if the national interests so required. *18 Probably we can conclude that political reasons are permissible, but those should be reasons of general national interests, not of daily politics.
Three legal issues should be controlled by the President of the Republic when proclaiming a law: *19
(1) whether the law conforms with the material legal provisions of the Constitution;
(2) whether the text submitted for proclaiming is authentic (i.e. is it the text adopted by the Riigikogu); and
(3) whether the procedural requirements set by the Constitution were adhered to by the Riigikogu when adopting the law. *20
The President of the Republic cannot exercise control of constitutionality over laws passed by a referendum. Under §105(3) of the Constitution, the President of the Republic shall promptly proclaim such a law. The right to submit a bill to a referendum is vested in the Riigikogu; *21 § 106(1) of the Constitution and §3 of the Referendum Act *22 prohibit certain issues to be submitted to a referendum. *23 Holding of referenda is also prohibited under certain circumstances. *24 Consequently, the constitutional review of the laws passed by a referendum is possible only in the form of ex post control. De lege ferenda, it should, perhaps, be contemplated whether if it would not be reasonable to allow presidential control of constitutionality of the bills to be submitted to the referenda, before the referenda will take place. It could avoid useless and expensive referenda and the situation where enactment of unconstitutional law cannot be escaped. The Referendum Act provides for possible intervention by the Legal Chancellor in the case of attempt to submit an unconstitutional bill to referendum, but that will be discussed later.
An Act Amending the Constitution shall be proclaimed by the President of the Republic as well *25 , but the procedures concerning that are subject to separate regulation under Chapter XV (“Amendment of the Constitution”) of the Constitution. Section 167 of the Constitution does not provide for a possibility of the President of the Republic to propose to the Supreme Court to declare the Constitution Amendment Act unconstitutional. Such a procedure would be, however, de lege ferenda, appropriate for ensuring the adherence to the procedure established by the Constitution itself for its amendment (questions of sufficient majorities, etc.). *26 This would mean that the Constitution is protected against the legislature basically in the same way it is protected in regard to ordinary legislation – the Constitution sets forth certain rules of passing laws which must be adhered to by the parliament.
Another question is if the material content of the Constitution Amendments should also be subjected to constitutional review. I think that if the answer is “yes” in the case of adherence to the formal requirements, the other question, at least in case of Estonia, should be answered affirmatively, as well. The reason for such a conclusion is that the formal procedural requirements are inseparably connected with the content of the amendments. Section 162 of the Constitution provides that Chapter I (“General Provisions”) and Chapter XV (“Amendment of the Constitution”) of the Constitution may be amended only by a referendum; and according to § 168, an amendment of the Constitution regarding the same issue shall not be initiated within one year after the rejection of a corresponding bill by a referendum or by the Riigikogu. In both cases the question of whether a bill attempts to amend Chapters I or XV (the case of § 162), or whether a bill regards the same issue as another, rejected bill (the case of §168), may not be immediately clear. These restrictions definitely do not refer only to bills for “An Act Amending Section 3 of the Constitution” or to bills (in the case of §168) which have identical wording with the rejected bill. Thus, the material content of the amendment determines the procedure – if the Constitution can be amended in a specific case only by a referendum or if a new amendment proposal can be made within one year. The need for legal interpretation is clear in these cases, and subjection of the corresponding bills to constitutional review should be considered. *27
Constitutional review is one of the main functions of the Legal Chancellor who is defined by the Constitution as “an independent official who shall review the legislation of the legislative and executive powers and of local governments for conformity with the Constitution and the laws.” *28 For the purpose of understanding the actual scope of review by the Legal Chancellor, some questions of terminology must be addressed.
Chapter XII (“The Legal Chancellor”) of the Constitution is the only chapter in the Constitution in which “legislation of the legislative and executive powers and of local governments” is mentioned. The Estonian õigustloov akt has been translated as “legislation” in this context. This translation seems to take into account the results of a theoretical dispute over that term in Estonia. The word-by-word translation of õigustloov akt would be “act creating law” or “act creating right” (in Estonian “law” and “right” are expressed by a single word õigus as in German das Recht or in Russian pravo). The object of the dispute was whether õigustloov akt creates both objective (positive) law and subjective rights or only objective law. Prof. Kalle Merusk has expressed a view that õigustloov akt is a normative act, i.e. a general act which contains legal norms (abstract rules of behaviour which create rights and obligations impersonally). *29 According to this definition, õigustloov akt on the basis of its material content is always a legislative act or, as in the wording of the translation of the Constitution, simply “legislation”, no matter by whom it is adopted (by legislature, executive or local government). A position similar to the one described has been held by Prof. Jüri Põld *30 , Rait Maruste *31 and (although in regard to international treaties) by Artur Taska. *32 Views, different from those mentioned above, have been pronounced, as well. Prof. Ilmar Rebane, for example, has interpreted an individual act of administration (e.g. order of the Government of the Republic) as õigustloov akt. *33
According to Chief Justice Rait Maruste and Legal Chancellor Eerik-Juhan Truuväli, whilst the differentiation between general and individual legal acts and their relations with the notion of õigustloov akt remains theoretically disputable, in the practice of review exercised by the Legal Chancellor, õigustloov akt has been treated as a general (normative) act which contains general rules of behaviour. *34 Appeals on individual legal acts are treated differently from the legislation reviewed by the Legal Chancellor, and they fall under the jurisdiction of administrative courts. *35 Thus, under the provisions discussed above, the jurisdiction of the Legal Chancellor and administrative courts in the review of the constitutionality and legality of legal acts is divided, depending on the normative or individual character of the contested act. Normative acts (“legislation”) are reviewed by the Legal Chancellor and individual acts by administrative courts. *36
Under § 142 of the Constitution *37 , the Legal Chancellor shall propose to the body which passed legislation conflicting the Constitution or a law to bring the contested legislation into conformity with the Constitution or the law in twenty days. If the proposal is not met, the Legal Chancellor shall make a proposal of invalidation of the legislation to the Supreme Court. *38 Under § 123(2) of the Constitution, the provisions of international treaties prevail over laws and other legislation of Estonia. The review of compatibility of legislation with international treaties is carried out by the Legal Chancellor. *39 According to § 15(2) of the Legal Chancellor Act, the Legal Chancellor shall, in the case of conflict between legislation and international treaty concluded for a fixed period of time, propose to the body which passed the legislation to stop the effect of the legislation for the period defined. Under § 16 he or she shall propose that the body which passed legislation conflicting with an international treaty, stop the effect of the legislation until it is brought into conformity with the Constitution. *40 It remains unclear whether the Legal Chancellor has any coercive means if his or her proposal is not met. No precedents concerning this issue are known to the author so far.
The Constitutional Review Court Procedure Act regulates the powers of the Legal Chancellor somewhat differently. Firstly, the section of the Constitutional Review Court Procedure Act which enumerates the subjects who have the right of appeal to the Supreme Court for review of constitutionality, empowers the Legal Chancellor, besides the cases falling under § 142 of the Constitution, to appeal to the Supreme Court in the questions of constitutionality of international treaties. *41 Secondly, the section of the law, providing for the jurisdiction of the Supreme Court in the area of constitutional review, limits the review of constitutionality of international treaties to the treaties that have not yet become effective. *42
The Constitutional Review Court Procedure Act also limits the reviewability of the legislation passed by the executive power or by a local government to legislation which has already come into effect. *43 The rationale behind the last limitation is not clear and its constitutionality is questionable. Perhaps the reason lies in the general principle of constitutional review carried out by courts that the court does not deliver preliminary opinions on the constitutionality of drafts of legislation or international treaties. This principle is expressed in § 4(2) of the Constitutional Review Court Procedure Act. However, a formally valid law passed by the parliament may still not be effective, due to vacatio legis. In the case of major codes the period of vacatio legis may be relatively long. It seems unreasonable that review of constitutionality of such law, adopted by the Riigikogu and proclaimed by the President of the Republic, does not fall under the jurisdiction of the Supreme Court before the period of vacatio legis has elapsed and the law has actually become effective.
In addition to the laws passed by the Riigikogu, §4(1)1) of the Constitutional Review Court Procedure Act also allows the Supreme Court to review the constitutionality and legality of the resolutions passed by the Riigikogu. The resolutions, unlike the laws, are not promulgated by the President of the Republic, so he or she does not have the opportunity to contest these acts. On the other hand, the resolutions can not be included in the scope of the notion of “legislation” as discussed above (they do not contain legal norms), so the Legal Chancellor can not protest them either. Thus, it remains unclear who could protest the resolutions passed by the Riigikogu, at all. In the view of the author, they should be subjected to administrative court review as they are individualised (not normative) legal acts.
However, there is an exception concerning the resolutions of the Riigikogu. The Referendum Act provides that the Supreme Court may declare a resolution of the Riigikogu to submit a bill to a referendum invalid, if the bill contradicts the Constitution. *44 The proposal to the Supreme Court is made by the Legal Chancellor. The question of constitutionality of such a regulation is disputable, as the Legal Chancellor is not empowered to contest individualised legal acts, but a resolution of the Riigikogu is an individualised act. *45 In practice, the Legal Chancellor has protested and the Supreme Court has reviewed the constitutionality of two resolutions connected with referenda, although these were resolutions adopted by local governments. *46 Opinions that in these cases the Supreme Court should have rejected the proposals made by the Legal Chancellor have been expressed. *47 To conclude, the regulation of the control of constitutionality of the referenda is regulated very ambiguously and there is no theoretical consensus either. Although the referenda are not held frequently *48 , the probability of a major political and legal crisis in case of conflicting legal interpretations is high.
In principle, the procedure of constitutional review may be initiated by any court *49 in the course of any kind of proceedings: civil, criminal, or administrative law *50 proceedings. The most relevant sections of the Constitution concerning the courts’ power to initiate constitutional review procedure are §§15 and 152. *51
Another question of terminology must be addressed at this point. In both of these sections “law and other legislation” is mentioned, õigusakt being translated as “legislation”, similarly to the translation of the notion õigustloov akt discussed above. Actually, the scope of the term õigusakt is much wider than that of õigustloov akt. It does not contain only legislation, but also individualised legal acts, i.e. it refers to all legal acts, both normative and individual. The wording of the translation of the Constitution – “legislation” – is used below, but the differentiation should be kept in mind.
A dissonance has been found between §§ 15 and 152 of the Constitution. *52 Under § 15 the courts shall declare unconstitutional any law, or other legislation or procedure which conflicts with the Constitution, whereas pursuant to § 152 the court shall not apply any law or other legislation that is in conflict with the Constitution. The question – whether the court is empowered to declare legislation that does not conform with the Constitution unconstitutional or simply not to apply it – is answered by § 5(1) of the Constitutional Review Court Procedure Act. According to that section, if the court, when deciding a case before it, comes to the conclusion that applicable law *53 or other legislation does not comply with the Constitution, it shall both declare it unconstitutional and not apply it. According to Prof. Jüri Põld *54 the meaning of relevant law or other legislation is interpreted in a decision of the Administrative Law Chamber of the Supreme Court: “Only a law designed to regulate the given relation, is the relevant law.” *55
The court informs the Supreme Court and the Legal Chancellor about its decision, and the constitutional review procedure is initiated. *56 Thus, every court is empowered to evaluate the constitutionality of any law, other legislation or procedure. Every court can declare them unconstitutional and not apply them, but by this decision, on the other hand, the constitutional review procedure is only initiated in the Supreme Court. This decision does not invalidate the law – it still remains in force. Only the Supreme Court has the power to declare a law or other legislation invalid. *57
In principle, it may be possible that in the course of some court proceedings a resolution of the Riigikogu is declared unconstitutional, not applied by the court, and thus the constitutional review procedure initiated. It would, however, be possible only if the resolution has normative character, so that it regulates some relation. This may happen occasionally *58 , but normally a resolution does not contain any legal norms and can not be applicable or relevant in this sense. Then, as mentioned above, it should be possible to contest the resolution through the administrative court review, but the Administrative Court Procedure Act does not provide for the possibility of protesting individual acts of the legislative power.
There is a serious shortcoming in the constitutional review procedure initiated by a court. Namely, according to § 5(2) of the Constitutional Review Court Procedure Act the court has to declare a law or other legislation unconstitutional and not to apply it by its decision – by the same decision with which it decides the original case before it. Even if the Supreme Court in the constitutional review proceedings comes to the conclusion that the contested law does not contradict the Constitution, the original court decision remains still in force. The original proceedings cannot be stopped for the time the Supreme Court decides upon the constitutionality of the contested legislation – the original proceedings, at least in this court instance where the constitutional review proceedings were initiated, are already over by the time the Supreme Court makes its decision. Thus, we cannot speak of any normal referral procedure here. The need for the right of the courts to suspend the proceedings until the Supreme Court makes its decision was pointed out by the experts during the drafting of the law *59 , but for some reason it was not taken into account.
Of course, the parties of the original case can submit an appeal and continue the original proceedings in a higher court – then the two proceedings run in parallel and if the decision of the Constitutional Review Chamber of the Supreme Court is made before the end of the ordinary court proceedings, the decision on constitutionality can be taken into account. If an appeal is not submitted, but the Supreme Court reaches a conclusion different from the one of the initiating court, the original proceedings can be renewed later. *60
Actually, the Supreme Court resembles in several ways a supreme court of the common law tradition or a constitutional court of a civil law system. Or, at least, it could be placed somewhere half-way on the road from a traditional civil law higher court to these mentioned. Mauro Cappelletti points out several differences between the higher courts of the two traditions *61 , some of them are treated below with the reference to the Supreme Court of Estonia.
Firstly, the number of justices is significantly greater in the higher courts of the civil law countries, compared to, e.g., nine justices of the US Supreme Court, and there is a variety of higher courts at the top of the court system. *62 In Estonia, the single Supreme Court is composed of 17 justices *63 , being far from the number of several civil law countries. A similarity with the civil law supreme court is that the Supreme Court of Estonia has four chambers *64 and that its chambers usually do not sit the cases en banc. *65 Secondly, the number of cases is not very high in the Supreme Court, since the Appeals Selection Board gives leave to about 400 cases annually *66 and the Chief Justice suggests reduction of this number. *67 Of course, the absolute numbers depend on the size of the country, as well. Thirdly, the degree of the political element in appointment procedures of the justices tends to be different. *68 The justices of the Supreme Court of Estonia are appointed to office by the Riigikogu on the proposal of the Chief Justice; the Chief Justice is proposed to the Riigikogu by the President. *69 The court system of Estonia has had too little time to develop to tell whether it inclines towards the principle of career judges or not.
According to Georg Brunner, the introduction of the system of decentralised control of constitutionality of norms in Estonia may be a Scandinavian influence. *70 The power of any court to declare a law unconstitutional and not to apply it is, of course, of great significance, but, as discussed above, the nature of the ordinary courts as exercisers of the constitutional review or as mere initiators of the constitutional review proceedings in the Supreme Court, is disputable.
The scope of judicial review in Sweden is limited. The main items of legislation are submitted to the Law Council *71 before the Government proposes them to the Parliament. This procedure is not mandatory, but in most cases the bills concerning certain areas of legislation are reviewed preliminarily by the Council, composed of justices of the Supreme Court and the Supreme Administrative Court. The procedure can be compared to some extent with the preventive constitutional review exercised by several constitutional courts. *72
The right to carry out ex post facto judicial review is vested in both courts and other public authorities. However, the extent of review is limited – in case of legislation of the Parliament or the Government, the violation of or inaccuracy must be “obvious and apparent” in order to allow the court or other public authority not to apply it. The norm is not invalidated, it is simply not applied to the case. *73 Until recently, this sort of review has not been exercised in regard to acts of Parliament; the first relevant decision was made by a court in 1991. *74
In Norway, the text of the Constitution does not provide for the courts’ right of judicial review of the legislation. The doctrine is to a great extent developed by the courts themselves. The Norwegian system is also a diffuse one – any court may choose not to apply a legal norm it considers unconstitutional. Most cases, however, are brought by way of appeal to the Supreme Court which sits in plenary session when exercising judicial review. *75 Although the decision is declaratory and formally applies only to the parties of the specific case, in reality the decisions are respected by the other state authorities. There is no preventive judicial review of legislation, yet some sort of constitutional control is exercised by the Department of Legislation of the Ministry of Justice. *76 According to Eivind Smith, “Norway is the only Scandinavian country where judicial review has been of any practical significance so far”. *77
To conclude, there are several important differences between the Estonian and Scandinavian systems of constitutional review. The Estonian system has two important features of the European system which the Scandinavian countries do not have – preventive control and a referral procedure, despite the procedural shortcoming that the decision of the referring court is final in Estonia. In addition, the Scandinavian tradition is more or less created by the courts, similarly to the American system of judicial review, but the Estonian courts have an explicit constitutional mandate for that. It seems that – if anything – then the element which was adopted from Scandinavia (or from the American system) was the absence of an institutionally separate constitutional court. The powers given to the Supreme Court of Estonia in the field of review of legislation, however, resemble more the powers of an European constitutional court.