While finance minister Martin Helme (EKRE) has called for President Kersti Kaljulaid to step down from office, citing abuse of the constitution, daily Õhtuleht has fact-checked both the grounds for his call and the likelihood of it becoming reality, finding both cases to be weak at best.
Helme wrote on his social media account Thursday that: "A political activist living in Kadriorg who takes the wage of the office of the president failed to promulgate a law from which the Riigikogu knowingly, intentionally and based on values removed the implementing section of the Registered Partnership Act. Such is the legitimate political will of the people's elected parliament. The president has no scope or function here to think otherwise."
Section 12 of constitution referred to a lot
The president had returned the amendments to the Foreign Service Act Thursday, saying they gave unequal treatment to the actual spouses of members of the foreign service as against partners registered in accordance with the Registered Partnership Act.
Both Helme and Kaljulaid used arguments of constitutionality; the former's was that the head of state had dressed up political activism in constitutional clothes, and was overstepping her role, the latter that the legal amendments themselves were unconstitutional in respect of section 12 of the Estonian constitution, which refers to equal rights.*
This is not the first time the president has returned a law unsigned to the Riigikogu, citing constitutional concerns; the most recent incident prior to the Foreign Service Act amends came in February when the president sent the pensions reform act back to parliament. Since the Riigikogu did not alter the pensions act, it will now be heard before the Supreme Court, after the summer break.
For the president to be prosecuted, the daily says (link in Estonian) this would require, as per section 85 of the Estonian constitution, a majority support at the Riigikogu AND a proposal from the Chancellor of Justice, Ülle Madise, and the resignation would take place in ront of the Riigikogu, with speaker of the Riigikogu (currently Henn Põlluaas (EKRE) – ed.) temporarily filling the president's role until extraordinary elections were held to find a replacement.
However, there is no chance of this, the paper said, and equally there is no chance of the president being forcibly removed, as this would require either a judgment for a legal offense against the head of state, or their death, or their losing their mental faculties (section 82 of the constitution).
The paper also refuted the idea that the president should not use political arguments when challenging laws – though some legal experts have argued against them doing this, the more common interpretation is that while the law could only end up before the Supreme Court on constitutional grounds (as the pensions reform bill is doing later on in the year – ed.) the president can veto a bill in the first instance and send it back to parliament – something that Arnold Rüütel did in 2004 on the issue of electoral rules in the European elections (Estonia joined the EU that year; the law was unchanged by the Riigikogu and Rüütel promulgated it - ed.).
A major constitutional test will come in fall 2021 (whether Kersti Kaljulaid wins a second term as president or not will most likely have been decided by then-ed.), when the local government elections then will be accompanied by a referendum on whether marriage should be defined in the constitution (it currently isn't – ed.) and whether that definition should be one man and one woman; the constitution has been amended a total of five times since 1992 when it was drawn up, mostly on issues affecting local government, defense and the preservation of the Estonian language.
The issue of marriage definitions and same-sex marriage is one which, broadly speaking, divides the ruling coalition, with Helme's party, the Conservative People's Party of Estonia (EKRE) and Isamaa opposing same sex-marriage and wanting to define what marriage is in the constitution, and the larger Center Party not taking this line. Prime Minister Jüri Ratas (Center) has said that he didn't see then need for amending the constitution vis-a-vis marriage; his social affairs minister Tanel Kiik (Center), via his office and ministry, has at least tacitly supported LGBT+ issues and similar.
*Section 12 of the constitution reads:
"§ 12. Everyone is equal before the law. No one may be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other views, property or social status, or on other grounds.
Incitement to ethnic, racial, religious or political hatred, violence or discrimination is prohibited and punishable by law. Incitement to hatred and violence between social classes or to discrimination against a social class is also prohibited and punishable by law."
Editor: Andrew Whyte