Is our constitution working well, without hiccups?

I think so. It is a rather solid document. Tõnu Anton, who chaired the Constitutional Assembly, said a few years ago that while it may be imperfect in terms of legal nuances, it is a brilliant political achievement. I fully agree and don't see any reason to complain.

When did you last read the constitution annotated?

I have the book on my desk and periodically make use of it. I prefer the book to the online version, though I know it makes me very old-fashioned.

You have not felt you disagree with certain comments or would like to add some?

If I agreed with everything, it would probably be a case of mental deterioration, while I do agree with most of it. The authors behind these comments have really captured the spirit of the constitution.

Why is it necessary to publish and update these annotations?

Because time and space keep changing around us. There is nothing we can do, concepts take on different meanings and nuances, so as not to say there are 50 shades of gray to everything. It is an entirely normal interpretation process, while the Estonian Constitution has been written using simple sentences and kept brief, with quite a lot of room left for interpretation.

Looking back at the spring of 2020, it was rather special – we had an emergency situation and a number of restrictions. In your professional opinion as a lawyer, did we err against the constitution somewhere or came close?

That's a tough one. It is good to have Rain Kooli here as he knows how things work in Finland. It seemed to me that the Finns were far more diligent when it came to consulting their constitution. We had this very pragmatic attitude that decisions must be made when they are needed and that there will be time enough for reading the constitution after the fact. It was the other way around in Finland. Steps were taken that I perceive as constitutional infringement.

Could you give an example?

Cutting off Saaremaa and Muhu so people who had property on the islands could not take care of it. That was a very tough measure. It is permitted by the Finnish Constitution but only if there is no other option. The Finnish government also used the measure but quickly dialed it back in Uusimaa. Our parliament couldn't even be bothered to discuss it.

So, the problem was Riigikogu's failure to discuss it rather than Saaremaa being locked down?

Were there other ways the epidemic could have been contained? I believe so.

Was that the only such clash between a decision made in the crisis and the constitution?

There are several aspects of constitutional infringement that concern people's fundamental rights. Allow me to give an example – is it really sensible to say, in light of the constitution, that all gatherings and protests are banned? We had a person protesting in Tartu by themselves. The police came and dispersed the protest so to speak. That is not appropriate. We need to make sure measures are appropriate and proportional as concerns their goal. What was the purpose of a Defense League mounted patrol along the Latvian border? I still cannot understand that.

Talking about constitutional infringement and the legal environment in general, new legislation is often said to clash with the constitution. I've even heard it said that modest infringement is commonplace. Has it become an accepted practice for laws not to be 100 percent constitutional in Estonia?

It is a slightly worrying tendency in that back in the day, when I was still in the thick of it, having a piece of legislation be constitutional was very important and was paid a lot of attention in the government. Rather, it was decided not to have draft legislation clash with powers safeguarding the constitution. Now, it seems as though laws are sometimes passed as if in spite – let the president determine whether they are constitutional or not, while we can still tell our voters that measures were taken. That is politically uncultured.

Were there really no pieces of legislation the president refused to promulgate for being unconstitutional during the Reform Party's time in office?

There were a few, such conflicts happen, but the general tendency was to avoid them. They occurred and sometimes came as a surprise even to the government, while it seems today that they do not take the government by surprise and, rather, we can see attempts to shift the responsibility onto someone else's shoulders – whether the president or the Supreme Court – and that is not a good practice.

Where is our legal environment headed? Regarding recent tendencies, are they troubling or is everything fine and we should just keep going?

Things are not that great. I believe we are headed toward an overregulated society that has a law for everything. It is reminiscent of the German school of legal positivism where the level of organization in society depends on how much written laws we have. I do not represent that school of thought. I rather prefer Kantian legal philosophy where ethics and morality tower above every written norm. We will see where it ends up. There are too many pieces of legislation.

I'm eagerly awaiting a political decision for a campaign to review existing legal acts, both laws and regulations based on them, and to repeal unnecessary ones. It would be a fantastic campaign and one that is needed as we have too many controversial pieces of legislation already.

Looking at the wording of laws, are legal texts manageable for the ordinary person?

It is a problem. We need to realize that the fact we number one million in Estonia and a little more abroad and have our own Estonian legal terminology, laws and explanatory memorandums in Estonian is unique in the world. Development of terminology and language becoming bureaucratized is natural and happens over time, while we also need to fight it and I believe we are. What matters is to what extent this is prioritized on the political level. I believe it should be. If we pick a random legal text today and give it a read, it can be quite difficult to understand…

Even for a lawyer?

It is how lawyers earn a living. They make use of these texts on a daily basis. Of course, that is not to say the rest of society should make it its problem.

Society often reacts to unexpected incidents, such as the Lihula shooting, by demanding tougher legislation. In your opinion, should laws be changed in those situations to bring about change or is it more a question of how existing norms are executed or interpreted?

Such situations always remind me of a period in the work of the Estonian justice ministry when the press was complaining about how alcohol was too easy to come by for minors. We received around ten official letters every day, suggesting we ban sale of alcohol to minors. This shows how some people always want to regulate something as soon as there is an incident or if they believe the matter has not been regulated.

I was about to tell listeners who perhaps did not catch the irony in your reply that sale of alcohol to minors has been banned all along.

Absolutely. It is natural for extraordinary and saddening events in society to spark legal debates. However, the task of the press is to let people know how things are and to analyze the context.

Rein Lang is also a radio show host on Kuku Radio. Rein Lang often has a bone to pick with ERR that is currently interviewing Rein Lang. Should we amend something in the Public Broadcasting Act?

While we can debate that, I believe the most important thing is for the act to be upheld. I am claiming here on Vikerraadio today that it is not being fully complied with.

In what way?

In terms of whether ERR's sacred duty is to objectively communicate the news and serve as a platform for different opinions in society. Looking at what ERR is doing on the whole, the priorities I see are different from what is provided by the law.

What are these other priorities?

Well, looking at recent developments, I cannot understand why ERR needs to have a free streaming service made up not only of ERR archives but also offering all manner of foreign television series the licenses of which have been paid for by the taxpayer. It is terribly akin to the idea of free public transport. I also see, in the conditions of constant complaining of how there's no money, difficulties covering events in Finland, while no expense is spared for the Eurovision song contest or the Eesti Laul one. So, it's a matter of priorities.

Another hot topic today is the EU rescue package. The question is that should Estonia agree to it, will it be covered by the mandate the Estonian people provided when Estonia joined the EU? Are these processes compatible with our legal environment?

It is something lawyers can keep debating until the end of time, reading the meaning of the law every which way. There is room for disputability. For example, the founding treaties suggest that financial obligations and tax systems are up to member states to govern. That said, if we want the EU to have a common market and a common currency, it is unthinkable to have some members try and have a thicker broth at their end of the cauldron as the saying goes. Personally, I want the EU to have a common currency, for it to be an actual common market and not just a seeming one. And that requires us to swallow that pill and surrender a part of our sovereignty. However, it needs to be voluntary.

Concerning the rescue package, should we have a new referendum?

We cannot have one. According to the constitution, financial obligations are not grounds for a referendum. There is nothing to be done.

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