Minister calls for potential improvements to constitutional monitoring

Justice Minister Lea Danilson-Järg taking the oath of office at the Riigikogu in July.
Justice Minister Lea Danilson-Järg taking the oath of office at the Riigikogu in July. Source: Ken Mürk/ERR

Minister of Justice Lea Danilson-Järg (Isamaa) has proposed forming a working party involving experts and leading figures from the sphere of constitutional law, which would analyze current constitutional monitoring procedures and potentially issue proposals for their improvement.

The working party is not aimed at amending the Constitution itself, she said, and focused mainly on procedures arising from complaints over legislation, often from opposition parties.

Danilson-Järg's initiative highlighted out several situations where opportunities to expand protection of the constitutional rights of both the public and political parties, could be taken advantage of.

The minister told ERR that: "Institutional supervision is an important field, one which from time to time still needs an investigation and analysis of how things have gone so far, and what needs to be worked on."

"In any case, it should be done from time to time, but especially today, considering both the experience of Covid and the upcoming elections, this is perhaps the right moment to conduct such a review," she added.

Issues of the more effective protection of fundamental rights and freedoms arose, among other things, in connection with Covid restrictions, Danilson-Järg went on, adding she also noted what the Chancellor of Justice Ülle Madise has written on the topic.

Danilson-Järg also focused on the March 2023 election.

"We also have elections coming up. The resolution of election complaints goes via the Supreme Court, but there are rules that currently apply which can prove to be an obstacle in the case of a large number of complaints, and slow down the announcement of the election results," she said.

"Here, we have to think about what can be done - whether to extend the deadline or impose some kind of additional conditions [on complaints]. We certainly want to discuss these topics," the minister added.

Of other matters, Danilson-Järg said: "For example, the issue of individual complaints. As of the present, a citizen can challenge the compatibility of some legal provisions with the Constitution, either through the Chancellor of Justice or through the court.

"Currently, there is no provision for direct appeal," the minister continued. "We have also thought that in certain cases it might be justified. But then we would have to analyze it further, and see if and under what conditions this could be viable in the future."

It is also worth taking a fresh look at the general organization of resolving cases of constitutional supervision, the minister added.

The minister also pointed out the practice in some countries whereby the political opposition can file a complaint directly with the Supreme Court, rather than via the head of state, as is the case in Estonia.

This happens in the instance of, for instance, legislation which the opposition feels contravenes the Constitution (which in practice is sometimes taken on instead by the president, something which happened several times during Kersti Kaljulaid's term, most recently last September).

While switching to this system may lead to some initial excitement and filing of complaints with the Supreme Court which might not have substance to them, things would likely settle down later, Danilson-Järg said, adding that she had no concerns about the opposition filing complaints maliciously or frivolously.

Danilson-Järg also mentioned the involvement of judges from jurisdictions outside Estonia – legal experts or academics, or working judges from other countries – which, she said, could also help in resolving constitutional matters.

At the start of the month, Danlison-Järg sent an invitation to take part in the constitutional working party and to prepare possible amendments to the law on constitutional oversight.

The invitation went to: The Supreme Court, the President's Office, the Chancellor of Justice, the Riigikogu Constitutional Affairs Committee, the University of Tartu's law faculty, the Estonian Bar Association (Eesti Advokatuur) and the State Law Foundation (Riigiõiguse Sihtkapital).

The working party's composition has not been formulated yet, the minister added, though noted it would be headed up by a representative of the Ministry of Justice.

Danilson-Järg added that this would likely not mean amendments to the Constitution itself.

Given the short time-span until the general election (March 5 2023), the minister said that she did not think the working party's final results will be available before that, though added that the project would still be on the table with the next coalition, formed after the March election.


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Editor: Andrew Whyte, Mait Ots

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