Liia Hänni: On the constitutionality of legislative drafting

Liia Hänni.
Liia Hänni. Source: Sten Teppan / ERR

Making the government should not be a political party's ultimate goal for which one is willing to make unscrupulous compromises. Laws should be drafted in social cooperation instead of in the form of horse trading behind closed doors, Liia Hänni writes.

"A law is an instrument for manufacturing trust. One of only a few such instruments that states have. That is why it needs to be concrete, unambiguous and able to stand the test of time." This phrasing of the meaning of laws and their quality criteria was offered by Estonian Academy of Sciences President Tarmo Soomere. Opposite amendments to the Family Benefits Act inside just a few months (to first hike and then slash benefits for large families – ed.) serve as a cautionary example of how not to draft laws. We cannot change the past but we can learn from it.

Legislative intent brings down a government

The coalition agreement of the EKRE, Isamaa and Center Party government formed following the 2019 parliamentary elections did not prescribe a hike of family benefits. This was again the case in the Reform Party and Center Party government that took over in January 2021.

The first initiative to hike child benefits came from the Social Democratic Party in March 2022, with the proposed bill aiming to hike the individual child benefit for every child to €100 per month. Until then, the benefit had stood at €60 per first and second child and €100 starting from the third child. The bill passed its first reading but stalled soon after.

Events took a turn for the decisive when on May 13 last year 54 MPs introduced a bill aiming to hike the universal child benefit to €100 and more than double the additional large family benefit. The bill was proposed by the Riigikogu opposition who were joined by the then coalition Center Party. Handing over the bill was Center's Jaanus Karilaid.

Minister of Social Protection Signe Riisalo (Reform Party) said that while her party was not against hiking child benefits, this would have to be done as part of the state budget strategy deliberations to find ways of covering the cost.

Center refused to slacken the pace of the bill's processing, which was followed by parliamentary obstruction tactics by the ruling Reform Party. This conflict culminated in the decision of PM Kaja Kallas (Reform) to evict Center ministers from the cabinet (leaving Reform with a minority government for a short time – ed.).

Open legislative drafting taken hostage by coalition agreement 

The makeup of the next government was decided by Isamaa when they had a choice between restoring Jüri Ratas' 2019 triumvirate or joining Reform and the Social Democrats in a new three-way alliance.

Isamaa sold their participation for a considerable hike of the large family benefit complete with indexation, included in the coalition agreement as concrete sums.

The agreement hiked the individual child benefit from €60 to €80 and the additional large family benefit from €300 to €650 for families with three to six children and from €400 to €850 for those with seven or more. The large family benefit was indexed (making sure it went up in line with the cost of living – ed.) and a gradual exit introduced until the oldest child in the family turns 19. The coalition agreement's version was passed into law with virtually no changes.

Even though the Riigikogu Social Affairs Committee held a public sitting to discuss the protest initiative, this did nothing to alter the process. All critical opinions and proposals were discarded on the grounds of not being in line with the coalition agreement. The "supremacy" of the coalition agreement paralyzed the democratic legislative process, which requires the effects of laws to be thoroughly analyzed and target groups involved.

Lesson number two: while having a coalition agreement is necessary for laying down the government's political goals, it must consider the principles of democratic lawmaking.

Coalition agreement not a transaction

Even though the previous composition of the Riigikogu was virtually unanimous in its support for amendments to family benefits, differences between the coalition partners as to the nature of changes were obvious from the start of proceedings. No secret was made of this fact by Social Protection Minister Signe Riisalo, who introduced the bill, nor by the Social Democrats' leader Indrek Saar. What made the sides press the green button in the end was the coalition agreement.

Coalition talks are complicated and agreement requires compromise. Still, this "flexibility" should not amount to a "pretend" agreement to be changed as soon as the opportunity presents itself. Making the government should not be a political party's ultimate goal for which one is willing to make unscrupulous compromises. Laws should be drafted in social cooperation instead of in the form of horse trading behind closed doors.

President Alar Karis' decision not to proclaim the law and return it to the parliament afforded the latter the chance to once again weigh it against the core tenets of the state as provided by the Constitution. The president pointed out that indexation of the large family benefit but not individual child benefits might be perceived as an injustice and require a more solid justification. Karis added that as president of the republic he cannot abide lawmaking where no reasoning is provided, with everything boiling down to the coalition agreement.

The Riigikogu only considered the president's notes as concerned violation of legislative drafting norms but did not reopen the debate to explain the law's choices. Unfortunately, the president decided to overlook this act of "arrogance" from the parliament and proclaimed the law the second time.

The constitutionality of lawmaking

Section 102 of the Estonian Constitution provides that laws are passed in accordance with the Constitution. The question is how to make sense of this provision. Is it enough for a law to be supported by the necessary majority and lack any directly unconstitutional aspects? Is it enough for an act to be credible and durable? Unfortunately, the situation surrounding the family benefits law tells us that formal constitutionality just isn't enough.

The political confrontation in the Riigikogu is largely centered on lawmaking both in terms of the nature of laws and their preparation. The solution could be if the legislative branch would base its actions on clear principles of democratic legislative drafting.

They are hardly new or unheard-of as the Riigikogu has itself phrased them in its strategy "Fundamentals of Legislative Drafting 2030." It reads, "Legislative drafting policy is inclusive, foreseeable and knowledge-based. Citizens have an equal right to be heard in legislative drafting process." It is high time to make good on these principles, which could also offer a way out of the dead end of filibustering.

(The current government of the Reform Party, Eesti 200 and the Social Democrats on Wednesday, June 14 passed legislation to slash the large family benefit from €650 to €450 for families with between three and six children and from €850 to €650 for those with seven or more – ed.)


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Editor: Marcus Turovski

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