Danilson-Järg: Decoupling constitutional institutions from the government

Lea Danilson-Järg (Isamaa).
Lea Danilson-Järg (Isamaa). Source: Siim Lõvi /ERR

Sufficient funding and effective operation of constitutional institutions is not in the interests of bodies deciding their funding today. There are no regulations to ensure independence, which means the former will always draw the short straw, Lea Danilson-Järg writes.

The recent scandal regarding the presidential budget that started from a Maaleht interview with President Alar Karis has been a long time coming. All the ticking bomb needed was to be set off, for which the president's internal affairs adviser Toomas Sildam's conversation with Secretary General Merike Saks was perfect. The problem is not with President Alar Karis, it goes well beyond and is fundamental in nature.

Sufficient funding and effective operation of constitutional institutions is not in the interests of bodies deciding said funding today. There are no independent rules for the financing of these institutions, which act as pillars of the rule of law, meaning they always draw the short straw when budgets are being drawn up. Effective performance of constitutional tasks is always hanging by a thread.

While the Estonian Constitution prescribes separation of powers, this is difficult to ensure when institutions meant to balance the government, such as the Supreme Court, justice chancellor and the National Audit Office, depend on the rulers for their funding and ability to work.

This set of problems came to my attention as justice minister during the 2023 state budget deliberations.

Ministers had to provide an overview of funding requests in their administrative areas at cabinet meetings. Representatives of constitutional institutions similarly had to defend their requests for financing, not being part of any ministry.

Unlike ministry budgets stretching into hundreds of millions of euros, those of constitutional institutions are more modest by an order of magnitude, which also means they are far more detailed, too detailed even if the goal is to ensure their independence from the government. We can take the example of a discussion of whether to cancel the president's February 24 reception as a way to save money, which a key minister in the current government is denying of ever having proposed.

Another red thread in 2023 budget deliberations was how many representatives of constitutional institutions emphasized that price hikes had rendered their budgets very tight and failure to secure additional funding would necessitate cutbacks at the expense of principal activity.

The president being forced to cancel a visit to Australia should, therefore, not take members of the current government by surprise as the PM and many other ministers were present for this year's state budget discussions.

The president's request for funding was defended by Peep Jahilo, director of the Office of the President. He also explained that without additional funds in the 2023 budget, the president would have to dial back foreign communication, which is not a good solution in the current security situation.

In this context, I cannot understand how Finance Minister Mart Võrklaev can blatantly tell the media that the Office of the President plans its own budget and no one has the right to dictate what they should do. I'm sure Võrklaev knows that one can only do the things one can pay for, while the president was not granted the full budget his office asked for.

As justice minister, I was greatly moved by the situation in the cabinet a year ago. I felt I also needed to protect the rule of law outside the ministry's direct administrative area.

Once all requests for funding had been made and reasons given, I proposed to the cabinet satisfying all constitutional institutions' additional requests in full. The sums were not big and the requests were thoroughly reasoned. There was no "air" in them and all planned expenses were necessary for effective operation.

My fellow ministers did not support the proposal, and it makes sense for everyone to represent their own house in the conditions of limited resources. Some ministers even poked fun when they suggested their ministries were also important enough to get everything they asked for. And that is where the it ended.

However, following these discussions it was clear the current procedure for deciding budgets is no good and change is needed. I broached the subject with several legal experts, as well as President Karis over the following weeks. But the previous government's time in office was not enough to keep nudging the topic forward as no one has a ready-made solution to offer.

A bill with changes should come from constitutional institutions, not the Justice Ministry, even though cooperation in putting it together would be welcome.

But putting together a bill and getting it passed are two very different things. The incumbent government's autocratic style, amplified by the prime minister's party's considerable political majority, is hardly encouraging in terms of whether such a bill meant to release constitutional institutions from the government's leash would pass in the Riigikogu.

We have seen time and again how bills that do not have the government's blessing fail to pass through parliament. I'm afraid this also means that the National Audit Office's proposal of putting the Riigikogu in charge of constitutional institutions' budgets would prove moot.

The Riigikogu functions as a formalizer of government bills as opposed to an independent institution. The ruling parties have the parliamentary majority and can pass or reject initiatives as they see fit. Otherwise we would have a government crisis and collapse, which those involved will do anything to avoid. That is why members of the coalition can agree to things individual MPs or parties might not like.

Having seen this Reform Party modus operandi, I doubt the current government would agree to strengthening constitutional institutions meant to keep it in check. At most they might allow cosmetic changes to make things look better.

The voter is the only force the government and the prime minister fear. Therefore, delivering constitutional institutions from the government's policy of attrition could only be achieved through keeping the topic in the media and public eye and offering said institutions support. The latter must also stand up for themselves, especially after the president and the National Audit Office have spoken up. I hope that things will turn out in favor of the rule of law in the end.

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Editor: Marcus Turovski

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