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The Law of Obligations: Developments in Estonia and in Europe

ISBN 978-9985-870-32-7

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Popular Initiatives as Means of Altering the Core of the Republic of Latvia

1. Introduction

The Constitution of the Republic of Latvia (the Satversme) is the oldest Eastern or Central European constitution still in force and the sixth oldest still-functioning republican basic law in the world, having been adopted by the Constitutional Assembly of Latvia (Satversmes sapulce) on 15 February 1922.

The Satversme provides for various forms of direct popular participation. Besides the ordinary right to elect the Parliament, it sets forth rights

–      to propose (Article 78 of the Satversme), adopt (Article 78 through Article 79, §1 of the Satversme), and repeal (articles 72 and 74 of the Satversme) ordinary law;

–      to propose (Article 78 of the Satversme), adopt (Article 78 and Article 79, §1 of the Satversme), and repeal (articles 72 and 74 of the Satversme) amendments to the Satversme, which includes a right to approve amendments made by Parliament to the core articles—1, 2, 3, 4, 6, and 77—of the Satversme (Article 77 of the Satversme);

–      to propose (articles 14 and 48 of the Satversme) and decide on recalling the Parliament (Article 48 of the Satversme);

–      to decide on removing the President instead of recalling the Parliament, if the President proposes a recall (Article 50 of the Satversme); and

–      to decide on participation in the European Union, including to discontinue participation (Article 68, §3 and Article 79, §2 of the Satversme), and on terms of participation in the European Union (Article 68, §4 and Article 79, §2 of the Satversme).

There are some limitations in respect of subjects of referenda and time for organising a referendum, yet they are few. Means of legislative referenda are not to be used for decision on matters related to ‘the Budget and laws concerning loans, taxes, customs duties, railroad tariffs, military conscription, declaration and commencement of war, peace treaties, declaration of a state of emergency and its termination, mobilisation and demobilisation, as well as agreements with other nations may not be submitted to national referendum’ (Article 73 of the Satversme), with the exception of certain questions of the European Union. As to confidence referenda, electors’ right to propose recalling Parliament ‘may not be exercised [for] one year after the convening of the Saeima [the Latvian Parliament] and one year before the end of the term of office of the Saeima, during the last six months of the term of office of the President, as well as earlier than six months after the previous national referendum regarding recalling of the Saeima’ (Article 14 of the Satversme).

The most popularly disputed form of direct popular participation is the referendum on constitutional matters. Although the wording of the Satversme seems to limit legislative referendum in respect of certain matters, recent developments show that, in practice, there are no limitations on matters decided upon by legislative referendum. To illustrate this, the author will describe three initiatives for referendum on constitutional amendments—first, on limiting educational rights; second, on introduction of Russian as a second official language and thus making changes to the core of the Republic of Latvia; and, third, on affording of citizenship to as many as 280,584 non-citizens, accounting for 13.74% of all residents of Latvia. *1 Although those initiative failed—in the first case, during collection of signatures, the second as a result of a popular vote; and in the third case, after the Central Election Commission stopped further organising actions in respect of submission of a request by 10,000 *2 people to—they reflect historically and theoretically ascertained *3 deficiencies of direct popular participation, which border on violation of human rights and reckless questioning of the state’s sovereignty.

2. Language of education

The constitutional content of educational rights in the current Latvian legal framework was long neglected and regarded as self-evident. Although the content was altered through lower external normative acts, this was not carried out to such an extent as would significantly reduce the level of protection of educational rights achieved or come into contradiction with other norms of the Satversme. An initiative to organise a referendum to limit state funding for education on the basis of language of education with effect from 1 September 2012 was the first and, thus far, only constitutional development of Article 112 of the Satversme. *4 Whilst the initiative ended on 9 June 2011 with an insufficient number of signatures (120,433 out of the 153,232 necessary) *5 , it raised multiple questions as to how the resolution of conflicts of constitutional norms would have been handled if the initiative had resulted in amendment of the Satversme and as to determination of the margin of appreciation of the Central Election Commission for consenting to the initiative and starting to collect signatures for organising a referendum.

The initiative proposed that primary and secondary education in the state language be ensured within the space of a year. *6 The initiators planned by this means to put an end to bilingual education or at least to scale it down to a minimum *7 , thus leaving it to privately owned education institutions and their determination of tuition fees. *8

According to the Constitutional Court of Latvia, the intent of initiators to organise a referendum cannot entail repeal of ‘the principle of wholeness of the Satversme’ that ‘prohibits interpretation of separate norms of the Satversme as isolated from the other Satversme norms, because the Satversme as a document, which is a cohesive whole, influences the contents and sense of the norm’ *9 . This means that at least the basic human rights and general principles of law listed in the Satversme—such as the right of minorities to preserve and develop their language and their ethnic and cultural identity *10 , the rights of a child *11 , and the right to equality and non-discrimination *12 , not to mention the principles of proportionality *13 , legal certainty, and legitimate expectations *14 —have to be honoured in the interpretation of all proposed amendments. Additionally, the state is obliged to maintain, if not increase, the level of protection of basic human rights. *15 Therefore, even if the above‑mentioned referendum had been organised and the Satversme had been amended, the result would not have been compliant with the initial intent of its initiators, on account of the necessity to ensure basic human rights and the level of protection of those rights achieved. In fact, there would have been no change at all in primary and secondary education.

The proposal to specify the terms of Article 112 separately would not have expanded the scope of the state’s obligations, because the obligation to provide free education in the state language derives from Article 4 of the Satversme. *16 Moreover, it could not have prevented the state from ensuring free education in other languages too, at least proceeding from the basic human rights and general principles of law listed by the Satversme. Therefore, the wording proposed for Article 112 of the Satversme could not have influenced the currently constitutionally protected content of educational rights.

In its turn, the transition provision constitutes a peculiar challenge to ideas about the ‘fathers of the Satversme as the rational constitutional legislator’ *17 and ‘dogma on perfection of the Satversme *18 . Namely, it lacks a formal link with a legal norm to which it was designed. Moreover, the obligation to provide education in the state language applies to any education institution established by the state or local government, except in provision of pre‑school education. Therefore, the transitional norm would, in fact, have been applicable to all levels of education, except pre-school education; all types of education; all forms of acquisition of education; and all education activities at education institutions established either by the state or local-government.

By appealing to rationality and ascribing to the constitutional legislator an understanding of the content of the term ‘institution’ (‘iestāde’) as defined by the State Administration Structure Law *19 , not by the Educational Law *20 , one can assume that the content of the legal norm could be limited, with institutions of higher education, e.g. universities, which are derived public persons, being excluded from its application. Moreover, through invocation of a rationality argument, it is possible to assume that the content of the legal norm could be limited, so as to exclude from its content language learning—a native language (one’s first language) and a foreign language. However, such reduction does not resolve several other issues—inter alia, that of the destiny of such an education institution established by either the state or local government as ensures only a programme of education that cannot be implemented in the state language. Questions include whether the education institution has to be liquidated or reorganised. Another is whether, in the case of liquidation or reorganisation, the necessary means are in place to ensure meeting of all legal requirements. In the case of liquidation, shall a principle of equality and non-discrimination be observed? Yet another question is whether international treaties would have to be renounced and, if so, how many. Furthermore, reduction does not resolve issues related to the legitimate expectations of a person who has started but not yet completed an education programme that cannot be implemented in the state language; whether the state has to allocate aid for education at private education institutions in the event that continuation of the education programme in the state language is impossible; and whether, and to what extent, the state has to allocate aid for continuing education further in the state language. The problems mentioned could have been rationally resolved via norms of external normative acts, though, in account of the time limit set by the transition provision, an optimal—in terms of légistique—solution was unlikely. Rather, the transition provision, if it had been adopted, could have become evidence of imperfection of the Satversme as a document and an interesting deviation from the concept of ‘the Satversme as an ideal form’ *21 .

3. The state language

In an echo to the above-mentioned initiative to organise a referendum, there followed another contradiction-entailing initiative. It proposed several constitutional amendments for introducing Russian as Latvia’s second official language—i.e., amendments to the Satversme’s Articles 4 (on Latvian as the state language), 18 (on the solemn promise of a member of Parliament to strengthen the Latvian language), 21 (on Latvian as the working language of the Parliament), 101 (on Latvian as the working language of local governments), and 104 (on the right to receive a reply to a petition in Latvian). Obviously, the proposed amendments would have influenced other constitutional norms as well. Moreover, since Article 4 of the Satversme alike norms of independence, democracy, sovereignty, territorial wholeness, and basic principles of elections that form the core of the Satversme (according to Article 77 of the Satversme), the initiative, in fact, proposed discontinuing an existing state and establishing a new one that is no longer a nation-state wherein Latvians exercise their rights to self-determination, enjoying and maintaining their cultural uniqueness.

Beside statehood elements, the initiative would have influenced multiple basic human rights and general principles of law protected by the Satversme, such as the right to preserve and develop the Latvian language and Latvian ethnic and cultural identity *22 , to participate in the work of the state and of local government, and to hold a position in the civil service *23 ; the right to choose one’s employment and workplace freely *24 ; the right to education *25 ; the rights of a child *26 ; and the right to equality and non-discrimination *27 , not to mention the principles of proportionality *28 , legal certainty, and legitimate expectations. *29 To illustrate what has been mentioned above, the right to education is taken as an example here. Although the initiative did not propose amendments to Article 112 (on education-related rights), it obviously would have had an influence on the content of that article if the outcome of the referendum had been in favour of the proposed amendments: 229,039 pupils at primary and secondary general education institutions, 35,767 pupils at vocation secondary education (ISCED-97 3 level) institutions, and 103,856 students at higher education institutions *30 suddenly would have had an obligation to know Russian as their first language, and 151,912 pupils at primary and secondary general education institutions (or 2/3 of all pupils at primary and secondary general education institutions) to acquire an education in Latvian *31 , whereas only 81,753 pupils at these education institutions chose to learn Russian as a foreign language *32 (54% of the total number of pupils learning in Latvian). In comparison, 188,357 pupils at primary and secondary general education institutions chose to learn English as a foreign language *33 (82% of all pupils at these education institutions). Moreover, the 20 years since the end of the occupation by the USSR have bred a new generation, without any knowledge of Russian. Thus, again an initiative to organise a referendum raises a host of questions with respect to the core of educational law, including several of resolution of conflict of constitutional norms.

Although the initiative to introduce Russian as a second official language was wound up on 18 February 2012 on account of an insufficient number of ballots (82.3%, or 1,271,657 against the initiative, with 821,722 of these by active participation and 449,935 through passive participation, including 3,524 invalid votes; 17.7%, or 273,347 in favour of the initiative) *34 , even this political defeat of pro-Soviet ideology may in the long run turn into an effective tool for destruction of the nation-state in which Latvians exercise their right to self-determination and to enjoy and maintain their cultural uniqueness.

There was an opportunity for the Constitutional Court of Latvia to mark a line for popular initiatives in time; however, it refrained from fulfilling the associated responsibility. For almost 11 months, the Constitutional Court of Latvia did not review an application by members of Parliament challenging the constitutionality of normative incapacity of authorities involved in organising popular referenda such as the one for introduction of a second official language, to stop further organising actions, if necessary, in respect of a popular initiative. As a result, a popular referendum did take place and the question of conflict of constitutional norms and the right of creation of such a conflict through a popular initiative escalated. On 19 December 2012, the Constitutional Court of Latvia dismissed the application, indicating that authorities involved in organising popular referenda have a right to review the constitutionality of a popular initiative and a right to stop further organising actions, if this should be necessary. However, any authority bringing a popular initiative to a halt has to be aware that its action may be reviewed by either the Department of Administrative Cases of the Senate of the Supreme Court of Latvia or the Constitutional Court of Latvia, depending on authority. *35

4. Latvian citizenship

On 2 September 2012, the Central Election Commission received a draft for amendments to the Citizenship Law, providing that, from 1 January 2014, all non-citizens (a status held by former USSR citizens who do not possess citizenship of Latvia or any other state and who do not apply for citizenship while residing in Latvia *36 ) who by 30 November 2013 had not applied, under the rules of the Cabinet of Ministers, to retain the status of non-citizen shall be considered to be citizens of Latvia. *37 In fact, these amendments would have automatically granted citizenship to any person who might have the status of non-citizen, without regard for place of residence, interest in acquiring citizenship of Latvia, and awareness of the amendments. Therefore, if the amendments had been made, they would have called into question the sovereignty of the Republic of Latvia. The core component of the state would be formed of a decision of the type made on casual matters, a decision disregarding the political and legal consequences of such an act and, in essence, stating that the regaining of independence for the Republic of Latvia in 1990 and the acknowledgement of the continuity of the republic established in 1918 have been faulty. *38 Moreover, automatic and forced acquisition of citizenship after more than 20 years of reinstatement of the Republic of Latvia and dissolution of the USSR comes into strong conflict with general principles of international law on citizenship *39 and disregards multiple legal issues that would arise from people unwillingly acquiring citizenship—such as questioning a right to other citizenship, putting an end to any naturalisation process, burdening one with unpredictable legal liabilities and consequences, and raising questions of cession of citizenship.

Taking into account outcry from society in general and previous experience, the Central Election Commission sought opinions from legal experts before itself making any decision on the admissibility and sufficiency of the popular initiative. Since the majority of the acknowledged legal minds were inclined to consider there to have been sound arguments for ceasing organisation of the popular initiative, the Central Election Commission went along with their opinion. *40 The very fact that the Constitutional Court of Latvia had missed an opportunity to take the lead in handling the constitutional dispute on whether the Central Election Commission has a right to stop the organisation of a popular initiative on grounds of its unconstitutionality, adopting the decision on the normative capacity of the authorities involved in organising popular referenda a month after the Central Election Commission had issued its own, illustrates the reluctance to address constitutional justice in Latvia. The question of the constitutionality of this popular initiative is still to be decided, on account of an appeal of the decision of the Central Election Commission, and it remains unclear how quickly a decision will be reached, and by whom. Because of the amendments to the law called ‘On Popular Referendum, Law Initiative and Initiative of Citizens of the European Union’, adopted on 8 November 2012 *41 , any appeal of a decision of the Central Election Commission on a popular initiative has to be decided by the Department of Administrative Cases of the Senate of the Supreme Court of Latvia as the first and the last instance within a month or two, if necessary (Article 23.1). Regardless of this definite term, the Department of Administrative Cases suspended the administrative process in court and submitted an application to the Constitutional Court of Latvia challenging the norm specifying the competence for administrative courts to decide on issues of the constitutionality of the substance of popular initiatives, arguing that it seems to be in conflict with the doctrine of separation of powers. *42 In its turn, the Constitutional Court of Latvia accepted this application and set its review for 12 August 2013 *43 , yet afterward it postponed that review to 19 November 2013 and set 19 December 2013 as a deadline for reaching a judgement. *44 Accordingly, the issues of constitutionality of a popular initiative and the normative capacity of authorities involved in organising popular referenda are again in dispute, with clear answers postponed. Furthermore, new questions with regard to the constitutionality of popular initiatives arise. *45

Multiple state institutions are in a rush to solve problem of misuse of the popular initiative. Worth noting is one of these attempts, presented by a judge with the European Court of Justice, to feature a preamble to the Satversme in particular. *46 Judge Egils Levits is well known for his non-traditional concepts and approaches in respect of resolving constitutional issues. For example, during discussions of the constitutional issues surrounding accession to the European Union, he proposed granting a portion of the state’s sovereignty to the European Union and, for this, including a further article on state sovereignty (2a), providing that Latvia is a member state of the European Union. *47 However, this approach did not gain the necessary agreement; therefore, it was not applied. The idea he has proposed recently is to describe all basic values of the Republic of Latvia in order to put a stop to misuse of popular will. Such a declaratory part of a constitution usually is drafted first, not last. Yet, in view of the constitutional controversies that have continued for several years now with regard to direct popular participation, it may bring some useful certainty *48 as to the future of direct popular participation within the Latvian legal system. The draft for a preamble has already stimulated passionate discussion and, unfortunately, encouraged marginalisation of some opinions. *49 Some regard the proposed preamble to constitute a ‘business card of Latvia’ *50 as a part of nation branding while some radical intellectuals link it to ‘the ideas of the pre-Holocaust era’ *51 . At present, it remains unclear whether the preamble will be a panacea for resolving the issue of ‘constitutional extremism’. In the author’s opinion, the first order of business is to become aware that the Satversme is a replica of traditions from the 1919 German Constitution; only from this starting point is to start looking for a proper cure to misuses of popular initiatives. As long as the lessons taught by the 1919 German Constitution and the historical examples of twisting around with popular will remain overlooked, consensus on resolving conflicts of constitutional norms and imposition of conflicts by means of direct democracy will not be found. Eliminating elements of direct democracy does no more good than misuse of popular will.