Justice chancellor: Marriage referendum bill not processed in line with law ({{contentCtrl.commentsTotal}})

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Ülle Madise on ERR's " Otse Uudistemajast". Source: Priit Mürk/ERR

Categorization of thousands of proposed amendments to a recently scrapped bill on the definition of marriage was not carried out in accordance with the law, justice chancellor Ülle Madise said Wednesday. The matter could have been heard at the Supreme Court, she added.

However, imposition of a limit on MPs' floor time when debating the issue was not illegal, the chancellor added.

Appearing on ERR politics discussion show "Otse uudistemajast" Wednesday, Madise said that the Riigikogu's various committees should be able to organize their own work without strict regulation.

"I would not rush to over-regulate here, though it is good practice for the Riigikogu itself to know how it regulates its activities," Madise said.

The committee in question, the constitutional affairs committee, was at the center of a furor the weekend before last after its chair, Anti Poolamets (EKRE), initiated the categorization – of over 9,000 amendments tabled – and the time limit noted above (which was set at seven minutes and, since delegates were speaking remotely via video link, involved the use of a mic mute function for MPs who overran their time – ed.).

Marriage referendum bill has been struck off

Anti Poolamets said at the time the measures were needed to keep the legislation, due for its second Riigikogu reading, on track. The bill, if it had passed, would have seen a national referendum take place in April which would have posed as a question whether marriage should be defined as between one man and one woman, in domestic legislation.

In the event, the bill failed its second reading last week, in the aftermath of Jüri Ratas' resignation as prime minister. The Center Party, the only party from the three making up the outgoing coalition to be in negotiations to form the next administration, subsequently struck off the bill.

Ülle Madise said that filibustering, or obstruction, was an important instrument in constitutional law and one which all opposition parties have used in one way or another. She cited a 1997 example, which led to a bill protective tariffs being pushed off the table in this way.

"At the same time, there exists a certain practice at the Riigikogu when it comes to the grouping of amendment proposals, and [the constitutional committee's method of doing this] ran counter to that practice indeed," Madise said.

Madise: Amendments can be bundled only when virtually identical or otherwise strongly connected

More specifically, proposals to amend which are identical word for word, or strongly connected with one another, can be bundled together, she said. Moreover, in the case in question, the proposals that would have rendered the draft resolution unconstitutional could have been left out automatically. 

The fact that obstruction was designated as the common denominator of the bulk of the amendment proposals could have been referred to the Supreme Court, she added.

"If the Supreme Court had found that this act of bundling of the proposals to amend was a significant violation of procedures, the court would have declared the draft resolution invalid, and no referendum would have taken place," she said.

Earlier bills had also been processed without opposition getting due say

Madise pointed out that during the last economic crisis in 2009, the government [of Reform, IRL – now Isamaa, and SDE, though the latter left the coalition that year] tied budget cuts to a confidence vote, and these were adopted very quickly. At the same time, according to the chancellor of justice, the budgetary cuts had a deleterious impact on many people, and in fact the opposition (at that time the Center Party, the Estonian Greens and the Peoples' Union, a forerunner of EKRE - ed.) should have got more say. Madise was not justice chancellor at the time.

Madise noted that the chamber comprises 101 "life experiences" (there are 101 MPs at the Riigikogu – ed.), which together should highlight errors in any bill and correct them.

At the same time, filibustering every single Riigikogu bill would be detrimental to both coalition and opposition MPs, ultimately, she added.

While many of the proposed amendments were of a comedic, farcical or irrelevant nature, there was not the kind of procrastination seen in some other jurisdictions – Madise listed examples including delegates walking monumentally slowly in casting ballots.

Madise: Referendums can be held in Estonia

Although the referendum on the definition of marriage is now off the table, Madise said in practice, clear state matters can quite simply be put to a referendum in Estonia.

This would put, for example, Rail Baltica, out of the zone, since it is an international project. Madise also referred to the oft-quoted example of Swiss-style direct democracy, where she said the state was set up on different and more complex lines than in Estonia.

Another factor is the sheer cost of referendums, including money spent on campaigns and counter-campaigns, which means only major issues should be voted on in this way. This would include, in Estonia, the issue of legalizing euthanasia, she said.

The marriage referendum, had it gone ahead, required an update of Estonia's e-voting system. The relevant legislation already defines marriage as a union between one man and one woman. However, proponents of the referendum noted that domestic legislation could be amended and/or trumped by EU law.

The original intention was to amend the constitution. However, as Ülle Madise and other experts noted earlier, doing so cannot be done on the back of one referendum and would require the assent of two consecutive Riigikogu compositions (the next Riigikogu elections are in 2023 – ed.).

Estonia held a referendum on joining the EU in 2003, which saw the "yes" vote pass with 66.8 percent. The country duly joined the union the following year.

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Editor: Andrew Whyte

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