Tehver: Support needed from state instead of total regulation in a crisis

Jaanus Tehver.
Jaanus Tehver. Source: Anna Aurelia Minev/ERR

The government laid down excessive restrictions on economic activity and made dependents and wards of people and companies as if they were unable to make the right decisions themselves, head of the Estonian Bar Association Jaanus Tehver says.

How is the coronavirus crisis affecting advocates?

It is too early to say. The crisis and its economic effects have only been around for a few months. While effects can be felt, they are perhaps more modest than what I anticipated four to six weeks ago.

Things are not as bad as what happened to Tallinn Airport, which lost 99 percent of passengers in April?

Things are definitely not there. So far, it seems our workload has not fallen drastically. However, the legal services market usually walks in step with the economy and negative effects will reflect in the financials of law firms sooner or later.

My colleague urged me to inquire as to why lawyers are so expensive.

I'm willing to admit that ours is an expensive service from the client's point of view. However, looking at what I do, it does not appear to me that I'm charging too much for my work.

As head of the bar association, what I deem worth discussing in this matter is the availability of legal services. The fact that availability is poor, with the price of the service being one reason, is indeed a problem. That is how it is.

Allow me to make an additional point. The idea of the exorbitant prices charged by lawyers is, to some extent, also a myth. The service can be procured at very different prices as lawyers are always competing with each other and this competition is quite fierce.

Were you able to keep up to speed with all emergency situation restrictions that were in effect between March 12 and May 17?

Definitely not.

An emergency situation calls for emergency leadership?

Most assuredly. The notion of an "emergency situation" means that things need to work differently from how they normally do. It makes sense for an emergency situation to have fewer management levels, simpler and more logical decision-making processes. All of it is understandable.

However, I'm sure we could debate for all eternity whether emergency situation leadership should take place as it did in Estonia.

Do I perceive reproach in your words?

There is some. Crisis management is the task of the government and government agencies. And they were more or less up to the task. My main criticism is aimed at the parliament, the legislator. What took place there and what the parliament did in the emergency situation is not something we can be entirely happy with.

That is a little vague.

In terms of the problem? Legislative measures passed during an emergency situation to address the emergency situation should be temporary. However, in Estonia, almost all laws that were passed as so-called cluster bills or in some other form are not temporary. The way demagogy is used to take advantage of the emergency situation and pass norms that will remain in effect potentially forever – it is not normal.

If we compare laws passed in the Estonian and Finnish parliaments during the emergency situation, legal acts pertaining to solving the emergency situation in Finland explicitly have an expiration date. I cannot understand why this practice is not used here.

You do realize government parties are seeking to perpetuate their long-term goals?

I understand that the government and the ruling parties want to do it. But it is a problem if this desire is so easy to assert in the parliament and only sparks a modest public debate.

The government's rating was rather solid during the emergency situation.

Absolutely, and that's what worries me.

Why? People want to feel support from the state in a crisis, especially those hit hardest. And the state acted decisively.

(Smiles) Broad-based public support for this kind of governance tells us something about the level of development of society, which I deem… not positive.

Next, you'll say [like Päts did in 1934] that the people are sick?

No. I will be sure to avoid using such categories. We are not talking about pathologic phenomena here.

I'm not talking just about Estonian society. The problem is with the measure of criticism societies have for the actions of governments during states of emergency. Whether a society asks any questions at all and if so, what kind of questions – that is what demonstrates a society's values.

And my claim is that the level of that discussion in our society and several others suggests that values that matter to me are not equally important to society as whole. If I'm not being too cryptic here.

You are not, however - a big part of society was concerned over this new virus and how to cope. Many restrictions, bans and orders seemed entirely appropriate and were not challenged.

Yes, but… If worry or fear start to play an important role in a person's decisions and if they start seeing the actions of rulers through that prism, it is not good. More critical thinking and analysis is needed.

Fear cannot be allowed to rule a person to such an extent.

Jaanus Tehver. Source: Anna Aurelia Minev/ERR

What were the questions that went unasked?

What is the broader goal of governance and crisis regulation, what do we want to achieve?

To protect people's lives and health is what every government politician would say.

Yes, but we cannot settle for an answer to a single question. The initial question needs to be accompanied by inquiries as to the price we are willing to pay and what our long-term plan is?

Are you looking to appraise the value of a grandmother?

No, I am not asking the price of a grandmother. What I want to say is that to suggest that merely asking the question of the price society has to pay for all manner of health protection measures is somehow inappropriate and equals putting price tags on human lives – it's an exercise in demagogy.

Society cannot function in the conditions of a single consideration dominating absolutely everything else. Just as it is impossible to claim on the level of crisis management that protection of public health justifies any and all measures if they serve that goal.

You believe the government took restrictions too far?

I believe so, yes. First and foremost, it seems economic restrictions were excessive in places.

The way in which all manner of restrictions were laid down is built on the premise that both people and companies are dependents or wards of the state and unable to make the right decisions themselves, which is why the state needs to decide what they can do and how for them. Governance based on such an understanding will very quickly lead to totalitarianism.

One needs to be helpful and supportive in a crisis.

Helpful and supportive, but not exercising total regulation.

If the owner of a shopping mall or sports club that had to close doors during the crisis would want to sue the state for missed revenue, would you take the job?

I doubt it. Entrepreneurs cannot expect making money to be their private business when there is no crisis and for it to become the state's business if something happens.

The state cannot serve as a guarantee for any unexpected situation or pay for problems every time something happens. Everyone bears their one responsibility. We need to keep in mind that life is unpredictable and all sorts of things can happen.

Your predecessor in the bar association Hannes Vallikivi talked about mounting pressure of fundamental rights in his last annual speech. Had you cause to recall that warning during the emergency situation?

Absolutely. The emergency situation has amplified the problem, highlighted certain circumstances. But what really worries me is that the problem my colleague was referring to has been around for some time and is not tied to the emergency situation at all. Fundamental or human rights have been going backwards for years and there is nothing to suggest this trend could be overturned.

Are you going to follow up with a favorite sentence of lawyers – that administration of justice is slanting toward the prosecution in Estonia?

No, that is just a single element in this equation and one of relatively modest significance. I'm talking about, and this is also what Hannes Vallikivi meant, societies' appreciation for fundamental rights and freedoms in organizing public life, the value attached to these phenomena and to what extent states are expected to uphold them.

Without proper appreciation, rights and freedoms will remain largely declarative – something academicians can treat with in conversations but the effect of which on the ordinary person is marginal. And it is a development I do not want to see.

Jaanus Tehver. Source: Anna Aurelia Minev/ERR

You addressed the Riigikogu in December of last year and described it as peculiar that during what we have seen with our own eyes to be the longest period of peace and constitutional order in Estonian history, politics and public debates are increasingly besieged by the question of whether the rule of law is in jeopardy or not. Whence the question anno 2019-2020?

I have not fully figured out an answer to that myself. The question was not asked by yours truly, it was put to the parliament as matter of national importance.

The discussion was titled "Is the rule of law in danger?"

That the legislator raises such an issue as a matter of national importance is enough to suggest someone is concerned. Personally, I am convinced that the rule of law stands on a solid foundation in Estonia, at least today, and perceive no existential threats.

However, the fact this matter has been raised is evidence of a longer trend that should be taken seriously. Some political circles, perhaps society in general has become concerned in terms of whether things we have considered to be self-evident will always remain that way.

Could we have an example of pressure on fundamental rights?

The example that seems most acute to me is the question of Estonians' appreciation for the right to privacy. I do not see it as something that is considered to be particularly important.

How so?

The question of who can use our data that we freely surrender in exchange for free services and how, also what this data is used for and the extent of the state's involvement in the process – these questions seem not to spark great public debate. While regulation is clearly developing toward these violations of privacy being a non-issue. And society accepts it. People usually say they aren't doing anything wrong and have nothing to hide.

There have also been no major scandals regarding misuse of data.

True. But does that mean everything is fine in terms of protection of privacy? Definitely not.

The simplest example is the so-called data records requirement that has been in effect for a decade and regarding which the European Union and initially the Court of Justice clearly found more than five years ago that such a system is not in accordance with protection of fundamental rights principles. Most EU countries have reworked corresponding systems, while everything continues as it has in Estonia.

You said during the same Riigikogu discussion: "In order for the rule of law to exist and for democracy and freedom to exist, we all need to put our fate and trust in society and make efforts." What are we short on – faith, trust or efforts?

We are short on all three.

Faith in the rule of law is slowly crumbling.

We've definitely had problems with the validity of constitutional institutions and people's trust in them for long years.

And then there is effort that for me is the centerpiece of this equation. How important we hold certain values to be must be reflected in people's behavior, preparedness to protect their rights and interests if need be. There could be more effort to that effect.

You want to see protest spirit clearly expressed?

There are various forms. I like what the French are ironically criticized for every now and again, that everything is worth going on strike and taking to the streets for. It is part of democratic tradition, which is in short supply here.

Of course, that is not the only thing. I would like to see our democracy work more effectively in terms of the people talking to those they have elected and for governance to be closer to people.

Holding these things against politicians is pointless. Who wants to work harder if the status quo works just fine.

Who do you hold it against?

Both myself and the Estonian society in general. We are not doing enough to demand our rulers uphold these values that we deem important. I'm also critical of myself.

Jaanus Tehver and Toomas Sildam. Source: Anna Aurelia Minev/ERR

This is where a lot of politicians breathe a sigh of relief, thankful that Jaanus Tehver did not become prosecutor general in 2014.

I'm pretty sure no one even remembers that episode. (Laughs)

You were lucky not to have shared Lavly Perling's fate, whose candidacy was opposed by one of the coalition partners that saw the entire government capitulate.

Perhaps, who can say how things might have turned out. What happened with the prosecutor general [Lavly Perling] was eye-opening for quite a few people, I believe.

However, the voter has given rulers – the coalition – a mandate to rule.

Yes, but that doesn't mean they can say that they have a mandate and can do whatever they like.

The will of the people is behind them.

Is it, though?

The mere fact that a certain number of ballots are lowered into boxes on election day does not give the person or political party that got the most votes a blank mandate to do whatever they like. Such a conclusion is both illogical and demagogical in nature.

The people have elected these parties, shown them that level of support.

The principle I follow in this paradox is that a mandate from the people is a general one for governance. Through it, the people delegate to leaders, who are the best among the people, the power to use all of their abilities and skills to make decisions to benefit the Estonian state and society.

That is the mandate given to rulers.

Talking about coalition agreements and how rulers really act, we cannot say their every move follows this mandate from the people. If things cannot hold up to common sense and criticism, the fact someone has been elected is no justification.

They are making good on their election promises that got them elected in the first place.

Yes, but let's put it this way: not everything we've seen has been tied to promises made before elections.

Secondly, anyone with an even remotely critical eye on politics understands that election promises never absolutely serve as the basis for future governance. All manner promises are made during elections with the aim of being elected, while actual governance depends on actual means and other commonsense considerations in the end.

We cannot exempt rulers from responsibility by simply saying that because the people voted for them, we must be satisfied come what may.

Another aspect to note is that in a parliamentary country, a coalition represents people who voted for the parties therein, while there is another part of voters who did not. Rulers cannot only cater to the interests of those who voted for them. The country needs to be run as a whole, while trying to avoid rifts in society.

You are not happy with the way Estonia is governed?

That's one way to put it.

I will not go into individual decisions that clash with my political preferences that are irrelevant here. However, my broader criticism for how Estonia is run is based on short-term considerations dominating the agenda… From there, many decisions seem to cater to rather narrow interests while not benefiting the society as whole. And… well, why should I be happy with that?

Someone recently said that the erosion of freedom as a value and a right under legal protection is worrying.

Very much so.

What worries me the most is that the ideology of parties that make up the current coalition in Estonia is a fact. And despite freedom not ranking high on its list of priorities, that is the coalition people voted for. But looking at administration more broadly and also including the opposition, insofar as we can talk of a united opposition in Estonia today, things are not much better there.

That if I try and imagine a different kind of coalition and ask myself whether I believe things would be different and based on other considerations then, I'm not at all sure. That is what worries me.

You're not about to start a party or join an existing one, are you?

No, I have no such plan, nor do I see anyone I could join for that matter.

You are so downcast?

I don't know if I'm cast down. I do not lose heart because there is no party to defend classic liberal values in Estonia today. It's just a fact for me. I doesn't sadden me too much, I see it as the reality of the situation. I try to plan my activities in such a manner that allows me to cope in the environment that surrounds me. And I believe I will cope, more or less successfully.

Some lawyers have admitted in private conversations that the significance of fundamental rights and freedoms and administration of justice has diminished – that these things are addressed as far as the emergency situation permits. What do you think?

We can be quite happy with administration of justice during the emergency situation when compared to other countries. Unlike in many other states, administration of justice did not stop and changes, delays and inconvenienced caused were relatively modest all things considered. Looking at public administration in general, administration of justice performed better than other fields.

That does not mean everything was perfect. A simple example concerns cases of people who are held in custody. They are all innocent people in the eyes of the law. A situation where their case being heard has been postponed indeterminately because of the emergency situation is unacceptable from their point of view. So, there are problems.

Jaanus Tehver. Source: Anna Aurelia Minev/ERR

A common acquaintance of ours referred to your thought that "if a relatively low-risk virus can unsettle our country and society to such an extent, one dares not think about what will happen in the future." Please explain.

We need to realize that the immediate healthcare crisis we have been dealing with for the past few months is not something that could be referred to as unprecedented, looking back in history. I'm sincerely worried that if something like that can cause us to come where we are today, what will happen should something more serious occur. What will we do then?

We are already close to exhausting administrative means at the state's disposal and balancing on the edge of feasibility in terms of fiscal stimulus offered by countries. I'm not just talking about Estonia. Estonia will invest €2 billion [in its economy], which is a lot of money for us but a trifling sum on the global scale. The measures we are seeing demonstrate the government's maximum capacity for alleviating economic effects of crises.

What if the crisis would have been more intensive and lasted longer? Or what about should we be confronted with different kinds of crises, such as a natural disaster or armed conflict. What then?

I must admit I am at a loss in terms of an answer. We do not know what would happen. And that is cause for concern.

Opponents from among politicians would say – you see, he opted for money, while we chose to save lives.

That is classic demagoguery. All manner of governance must take into account the long-term perspective, alongside immediate goals and considerations. By glossing over it, the rulers dig their own grave. However, that grave is big enough for all of us.

A situation where this is not acknowledged and where ruling takes place using slogans according to which we chose public health while the lawyers are only talking about money – it's sad.

You said, appearing in front of the Riigikogu last December, that you do not believe that the rule of law is in danger and urged MPs to trust in it, its rules and institutions. Are you still of that mind?

Yes, I am.

The rule of law is not in jeopardy?

Not presently.


Anything could happen.

Estonia is not an island unto itself, we are part of a big globalized world and some developments we cannot isolate ourselves from. Everyone can see how quickly and how imperceptibly at first significant developments have taken place in other countries. Looking just at Poland and Hungary is enough to conclude that we have not reached a level of social development from where no relapse is possible.

It requires us to stay vigilant. It should not depress us; on the contrary, we need to remain energetic and watchful and do something about it if necessary.

We have arrived at the will of the people again. Hungary elected its parliamentary majority.

Yes. Just like the National Socialist German Workers' Party was first elected and then ruled.

We cannot treat that as a justification for how things are and conclude that all we can do is be content. Every person must take a frank look inside and ask themselves what really matters. Every person must understand that should things start going wrong in how we are governed, it is everyone's duty to do something about it. The first opportunity will come on election day, while people tend to have poor memories in terms of candidates' past actions.

And the opposition that feels left aside today should be focusing on preparing for the next elections and how to have the people exercise their constitutional right to rule in a way to benefit the opposition. However, I see no such efforts today.


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Editor: Marcus Turovski

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