Birgit Aasa: Of constitutional order in Estonia

Birgit Aasa
Birgit Aasa Source: Private collection

If the Treaty of Tartu is the birth certificate of the Estonian state, our constitution is its conscience. Recent Independence Day celebrations make this a fitting time to consider words used in the constitution and when talking about it, Birgit Aasa writes.

In recent months, the public forum in Estonia has seen a debate over the relationship between the law (constitution) and politics. This debate has intrigued jurists for centuries and is very welcome, while we should first agree on the terms we will use. Because clear terms lead to clear thoughts.

In this debate, the rather weighty term of the constitutional order of the Republic of Estonia has been adopted, alongside accusing institutions tasked with protecting the Constitution of political activity.

People have been asked about the Constitution and claims made, based on poll results, that the constitutional order in Estonia is not liberal democratic because the term is meaningless.

Bold statements all around. The confusion seems thickest around the meaning of Estonia's constitutional order, whether it's no longer liberal democratic and the relationship of the constitution and politics.

Liberal democracy as the constitutional order of the Republic of Estonia

It is in error to claim that the concept of liberal democracy is meaningless. It needs to be emphasized that the word "liberal" does not serve as a political category here but rather a term of constitutional law used in modern constitutional theory as a concept to characterize and categorize the contents of constitutions.

Liberal democracy allows all political views and spectrums, provided they fit inside game rules prescribed by the constitution.

Liberal democracy as a constitutional order is also very clearly defined in the meaning of constitutions made up of three main parts: the principle of democracy (including free and equal elections, separation and balance of powers), the principle of rule of law (including independent and autonomous courts) and the catalog of universal fundamental rights and freedoms.

I suppose everyone agrees that the Estonian Constitution includes all three. They were also discussed in academic debates over the core principles of the constitution before Estonia joined the European Union.

Liberal democracy as a constitutional order is historically based on the political-philosophical idea of liberalism, the main idea of which is limiting absolute state power for the purpose of protecting personal freedoms. Annotations to the Constitution also hold the idea of liberalism to be one of the cornerstones of the Estonian Constitution.

Modern liberalism is largely built on the concept of human dignity that serves as the basis for fundamental rights and freedoms and is prescribed in section 10 of the constitution. Human dignity also leads to the universality of human rights – fundamental human rights are guaranteed on the basis of humanity and not, for example, class, gender, race etc. characteristics (that would make these rights particular).

This does not mean, however, that every person's rights or freedoms in every situation are somehow determined through universal principles – that is up to the legislator and the courts to determine within each constitution.

The constitution does not provide an exhaustive definition of freedom, equality and justice and their balance in various situations as legal philosophers realized long ago that it is conditional and always a matter of debate in the case of sensible persons.

What it does prescribe are independent and balanced institutions and procedures to solve such disputes – a legislator elected by the people on the level of the law and independent and autonomous courts in individual cases.

It is important to emphasize, when talking about constitutional order, that the parts that make up liberal democracy are in a functional relationship – all parts (democracy and the rule of law principle, catalog of fundamental rights) need to be present for a constitutional order to be liberal democratic.

To illustrate this point, different options are possible. Constitutional order can also be democratic without being liberal (without rule of law and the basic rights catalog or without them being functional). Liberal constitutional order can also be non-democratic (for example, when basic rights are guaranteed and the principle of rule of law functions, while there are no free and equal elections). There are various examples all over the world.

Illiberal democracy

Constitutional law theory categorizes constitutions as follows: liberal democratic, liberal undemocratic, illiberal democratic, social and welfare state and socialist.

Radical democracy is given as the primary example of illiberal democracy where the will of the majority reins supreme, there are no counter-majoritarian mechanisms (majoritarian mechanisms are based on majority of votes alone, the will of the majority), fundamental rights and constitutional review are considered undemocratic and the principle of rule of law boils down to the executive power's obligation to enforce laws without it having any effect on how they are formed.

The U.S. constitutional order is also considered to be inclined toward liberal rule of law in respect to democracy (exceptional so to speak) where what is good and just at any given time is subjected to the will of the political majority and not rational arguments and considerations in independent and autonomous courts.

Estonia's 1992 constitution did not go down that path and the country instead opted for a constitutional order based on liberal rule of law, largely emulating continental Europe.

The only matter of contention regarding the Estonian Constitution could be whether it is a purely liberal democratic or also a social and welfare state constitution because section 10 of the constitution prescribes the principle of a social state.

But one does not rule out the other, meaning that a social state usually ensures all components of liberal democracy, and there can be no serious debate over whether the Estonian Constitution is liberal democratic. Furthermore, neither rules out the constitution also providing the concept of nation state. The constitution reflects such a broad-based social agreement.

Constitution and politics

But how to strike a balance between everyone's political-moral differences and what should be the proportion of these principles?

The liberal democratic constitutional order offers a value-neutral institutional and procedural structure where a government with a democratic mandate populates the principles of liberal democracy with legislative acts and activities, while in the case of disputes and differences (both on the level of individuals and institutions) the final say resides with professional and independent judicial power (rule of law principle).

The principles of social state and nation state have stronger political significance as they limit the otherwise extensive decision-making capacity of both the legislator and courts in giving meaning to and balancing freedoms, equality and justice.

For example, the government could not exempt the population from social tax under the pretext of freedom using its democratic mandate because the social state principle stipulates people have the right to receive help from the state. Similarly, the nation state principle would not allow a democratically elected government to give up Estonia's national sovereignty without amending the constitution.

Mistaken are those who accuse institutions the task of which it is to keep watch over constitutionality (president, chancellor of justice, supreme court) of having a political agenda or claim they are tasked only with monitoring legal nuances but not political ones (also referred to as criteria of purposefulness and socioeconomic benefit).

The proportionality test is by nature an assessment of expedience. The constitution is not completely cut off from politics. While it needs to be kept separate from daily politics, its relevance is clear when it comes to policy choices as all such decisions (legal acts) are required to be constitutional.

The constitution by its very nature stands where the judicial and political systems meet, regulating how the political decisions by the will of the majority become part of the justice system. In other words, its objects are both political institutions and procedures and the contents of policies in terms of their constitutionality (the expression of the will of a government that has a democratic mandate must fall within the confines of the constitution as a previously agreed upon set of principles).

Constitutional institutions meant to keep watch over constitutionality are there for the purpose of monitoring and removing possible intentional or accidental mistakes and shortcomings in the majoritarian political process (whether experts were heeded, whether means are effective in terms of ends, whether all relevant rights and interests have been involved, weighed and balanced).

This control should be based on rational or verifiable arguments first and conscience second (moral-ideological category). And Estonia's constitutional order is only as strong as the resistance of constitutional institutions to strong majoritarian political pressure.

While it is likely that very few judges are truly politically indifferent, different ends of the political spectrum are populated sparsely among both jurists and judges, just as most people tend to fall into the ideological center in society as a whole.

That is why it is unjustified and unfitting to label the judiciary political or ideological, whereas such attempts could be interpreted as violating the constitutional principle of the independence of courts and manipulation of judges for the purpose of having them rule according to the will of the government and not rational arguments in fear of consequences (such as politicization of appointment or removal from office of judges).

Who is threatening constitutional order

Only the Supreme Court can determine whether someone has violated the constitution in Estonia. That said, liberal democracy prescribes everyone freedom of speech and the right to express who they believe is a threat to the constitutional order and how. However, we should be able to tell apart the contents and meaning of claims and political rhetoric.

Intent to undermine constitutional order should rather be sought in the heads and words of persons who accuse constitutional institutions of pursuing politics, threaten political appointment of judges or openly flirt with examples of judicial reforms from Hungary and Poland.

Both countries are classified as illiberal democracies after corresponding reforms. Such utterances are in direct conflict with the foundations of constitutional order in Estonia.

Having a debate over amending the constitution is neither impossible nor unconstitutional and very much provided by the constitution. However, in that case it needs to be phrased as such, with a program of what to change and how presented.

Poland and Hungary serve as alarming examples of how constitutional order can become illiberal even without direct changes to the constitution, but simply through efforts to undermine local control mechanisms (replacing judges with politically "suitable" candidates, interpreting human rights as particular as opposed to universal etc.).

This kind of creeping desire to change the constitutional order might be the reason behind calls to change terms, to no longer talk about liberal democracy but simply democracy (fundamentally illiberal democracy or an altered constitutional order).

In summary, jurists, politicians and the media should be cautious when it comes to accusing constitutional institutions of pursuing policy in such debates. And realize that it constitutes an attack on the constitutional order of the Republic of Estonia.

Freedom of speech, protected by our liberal democratic constitution, that allows one to voice such accusations will remain, of course, while we should keep in mind that freedom comes with responsibility, with those making claims held accountable for their relevance and truthfulness.

And while one would think debates over the foundations of Estonia's constitutional order took place decades ago, we need to keep a close eye on them and have those debates again if needed. Because words uttered in reference to the constitution have meaning that should be observed also in political rhetoric.


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Editor: Marcus Turovski

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