In an opinion piece which first appeared in daily Eesti Päevaleht (EPL) (link in Estonian), Jõks wrote that: "It is doubtful whether the President of the Republic, as the guardian of the constitution, can be appointed to the new government via the manner intended for the change of ministers."

Jõks pointed out that the Constitution prescribes norms for changes in government (§89), in which case both members of government and the government program will be changed, as well as changes in the composition of the government (§90).

"As the minister, or ministers, are replaced at the proposal of the prime minister in the event of a government reshuffle, which is presumably not a complicated thing nor does it have a significant impact, the constitution does not regulate for it thoroughly," Jõks argued. 

"It is, however, difficult to imagine weeks of negotiations to replace some ministers, culminating in the signing of a new coalition agreement," he added.

Jõks says he is of a mind with constitutional lawyer Liia Hänni, one of the framers of the current Constitution, issued in Jul 1992, when Hänni questioned how a new governing coalition would be formed under the assumption that the resignation of the prime minister is not a prerequisite for the formation of a Reform/Social Democrats/Isamaa coalition – the alignment whose representatives are currently negotiating to do just that.

"In the 30-year history of the constitution, this would be the first time a new government has taken office via a procedure designed to change ministers," went on.

While this might be serious at any time, the current situation makes the manner of change particularly thorny, Jõks added.

"At a time when we are facing multiple crises, it is not in Estonia's interest to have a government whose legality is questionable," Jõks concluded.

Allar Jõks was Chancellor of Justice 2001-2008, and ran in the 2016 presidential elections.

The original EPL piece (in Estonian) is here.

After weeks of deadlock, ostensibly over a bill to raise family benefits, Prime Minister Kaja Kallas (Reform) dismissed the seven Center Party ministers who had served in the coalition she headed up since it entered office in January 2021 on Friday, June 3, meaning Reform has been in office as a minority government, with 34 seats at the 101-seat Riigikogu, since then. Following a week's deliberation, the opposition Isamaa party agreed to join Reform and the Social Democrats for coalition negotiations, starting Monday.

While the Riigikogu breaks up for summer this Thursday, extraordinary sittings can be held after that date – any new coalition government must pass a Riigikogu vote before entering office.

The English translation of the Estonian constitution is here.

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