The two alternative questions proposed for a planned plebiscite on the definition of marriage are not only unconstitutional, lawyer and former justice chancellor Allar Jõks says, but given that there is a "wrong" answer in each case, effectively useless.
Appearing on ETV current affairs show "Ringvaade" Thursday night, Jõks said that the public might in some cases have difficulty answering either of the two questions proposed for the spring vote, namely: "Does the Republic of Estonia recognize marriage as a union between a man and a woman exclusively?" or alternatively: "Does marriage in the Republic of Estonia constitute a bond between a man and a woman exclusively?"
The plebiscite (Estonian: "Rahvaküsitlus") has already been downgraded from a referendum (Estonian: "Rahvahääletus") in official terminology in recent days, as well as being brought forward to Spring next year rather than to run concurrently with the fall 2021 local elections, as originally planned.
Jõks: Questions as they stand infringe both domestic and EU law
"Phrased in these forms, the questions run contrary to the law on referendums and other related laws, because it is not possible to answer 'yes' or 'no' to them," Jõks said.
"To achieve this, you would need to be familiar with both the practises of the Supreme Court and of the Family Law Act," he went on.
"However, it is not possible to answer 'yes' or 'no' because the Family Law Act in force in Estonia states that marriage is a union between a man and a woman, but due to international treaties, European Union law also says that same-sex marriage in must be recognized in Estonia," he added.
In response to the first question – "does the Republic of Estonia recognize marriage as a union between a man and a woman exclusively?" – Jõks said that answering no is not possible because it would be an incorrect answer, but. "We're not talking about a quiz here," he said.
Questions ask what the situation is now, not what it should be, so a "right" and "wrong" answer possible
The questions posed should instead focus on the future, Jõks went on, rather than the current situation – so rephrasing the question above to: "Should the Republic of Estonia recognize..." would fix the problem, he said.
The second question – "does marriage in the Republic of Estonia constitute a bond between a man and a woman exclusively?" – similarly has the same problem, i.e. it is a question about the current situation.
In other words, an analogy would be if the Scottish independence Referendum of 2014 was phrased as: "Is Scotland an independent country" or the 2018 Brexit referendum as: "Is the U.K. a member of the EU?"
"We are also not issuing a citizenship [i.e.constitutional expertise – ed.] exam for all Estonian citizens or voters. What we really want to know is how the Estonian voter views this issue, but this (i.e. the proposed questions – ed.) are more a question of their knowledge, not of how things could or should be in the future," Jõks said.
This renders the proposed plebiscite useless, since the question has not been thought through, and would violate both domestic and EU law.
"If these questions are asked in this form, it is in conflict with the Referendum Act and other related laws, because it is not possible to answer 'yes' or 'no'. In this case, if it is unconstitutional, the Chancellor of Justice has the right to refer such a question to a referendum to the Supreme Court for judgment, so at least I hope that because these are such crude wordings here, if the issue is really considered very important, qualified lawyers will work a little harder," he said.
There is also the question of cost that this would bring, as well as the logistical costs of holding the referendum/plebiscite, Jõks added, noting that a highly-representative public opinion poll would be more suitable.
Allar Jõks works as a lawyer in the private sector, for law firm Sorainen. He was justice chancellor 2001-2009, and also ran for President of the Republic of Estonia in 2016, dropping out after the second round. He also sits on the board of Tallinna Vesi.
Editor: Andrew Whyte