Keres v Ginter: Reform aim enough to justify constitutional infringement?
Sworn lawyers Paul Keres and Carri Ginter debated the constitutionality of the pension reform law on ETV's "Esimene stuudio" talk show. If Keres is convinced the purpose of the reform is enough to justify potential constitutional infringement, Ginter believes the latter could lead to violation of the Constitution.
Host Andres Kuusk asked the sworn lawyers whether the president's decision not to proclaim the pension reform law is common legal practice or meddling in politics.
Ginter said that the president is performing her constitutional obligation. "If the president finds that the law is not in accordance with the Constitution, she has no choice but to refuse to promulgate it. There is nothing out of the ordinary about it. Estonian presidents have done so on 62 occasions," Ginter said.
Paul Keres described it as at least a partly political veto. "She claims otherwise, but reading the text, the elements of the decision are rather political in nature," Keres said.
"If the president refuses to proclaim a piece of legislation on account of unconstitutional aspects, she needs to be very sure of its unconstitutionality. And reading her reasoned decision, no such conviction is visible. It is not difficult to tell the difference between the president talking about politics and the law. And the president talking about expediency – that's politics. And the question is largely of expediency," Keres said, referring to the reform debate.
The matter of disbursements or 4 percent of social tax from the point of view of equal treatment is among the chief items of contention. Kuusk asked whether those who have joined the second pillar being allowed to withdraw pension assets will receive preferential treatment over those who have not.
"It is an artificial problem," Keres answered. "The pension system today allows one group to take their money to the shops while the other supports pensioners. I mean the fact that second pillar units are inheritable," he continued.
Keres said that no one has pointed to this conflict or unequal treatment so far because there is no unequal treatment from the legal point of view.
Ginter characterized Keres' conclusion as premature. "The legal problem here is that social tax is collected for pensions and health insurance. And now, it is said that this requirement is no longer in place for Paul's social tax and that 4 percent becomes money he can put on his credit card," Ginter said.
Keres suggested that according to the Constitution, equal treatment only applies to people who are in a similar or identical legal situation.
"What I'm claiming is that I, as a second pillar unit holder, and Carri, as a first pillar unit holder, are not in a comparable situation. I already have my money, while Carri doesn't have his yet. The state has already given that 4 percent to me and used it to buy me pension units. Now, I am simply given an additional right of use with the new law that manifests, among other things, in the possibility of withdrawing the money," Keres explained.
Ginter described Keres' claim as a half-truth. "We should start with where the money is from. Everyone whose salary contributes to social tax can be compared. And everyone whose social tax contribution goes toward health insurance can be compared, as well as everyone whose contribution goes toward pensions," Ginter emphasized.
He noted that now, one group of them is in one pension pillar and the other is in the other, while the latter no longer has any pension in it. "That is unequal treatment. The only way to address it is to allow everyone to go down that path in the future or give me the chance to take out my 4 percent from the first pillar. But it cannot be a case of obligating me to continue to take care of pensioners while the other group has its obligations reduced," Ginter said.
The sworn lawyer said that risks of constitutional infringement are there. "In the end, it will be up to the Supreme Court to decide whether this infringement of basic rights has been too intensive."
Keres said that constitutional infringements are not too invasive regarding the pension reform and that the question of unconstitutionality will not be created.
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Editor: Marcus Turovski