Justice chancellor: Protection of legitimate expectations not great here

Chancellor of Justice Ülle Madise.
Chancellor of Justice Ülle Madise. Source: Kairit Leibold/ERR

The situation in Estonia regarding the protection of legitimate expectations started deteriorating several years ago already, Chancellor of Justice Ülle Madise said in an appearance on ETV's "Esimene stuudio" on Thursday night, noting that politicians here make promises too lightly and then later renege on on those same promises just as lightly.

"I believe things are not good here in terms of the protection of legitimate expectations — and they started going bad several years ago already," Madise said.

"And right now it seems to me as though people are promised things too lightly — such as we're going to increase family benefits, or we'll promise you some sort of tax exemption — and then the coalition changes, and then those promises are lightly and very quickly reneged on," she continued.

The chancellor of justice said that according to the Constitution, the Estonian state is founded largely on laws, and people must be able to trust that this legislative framework is stable and will not be changed lightly.

"Each granting of a right or imposing of an obligation on people should be well thought out here, and then that promise should be fulfilled for as long as possible," she said. "So to that end I'm watching with concern."

According to Madise, the Office of the Chancellor of Justice can take matters concerning legitimate expectations to the Supreme Court.

"I believe it's the job of our officials as well to look for laws on the basis of which the matter of the protection of legitimate expectations and people's trust could be brought before the Supreme Court again," she said.
"If you'll recall, the second pension pillar was freed [from being mandatory], with dissenting opinions from quite a lot of Supreme Court justices, but the majority nonetheless was of the position that that was allowed," she continued. "And with that, the protection of legitimate expectation took a pretty big hit, because the retroactive amendment of the social tax rate to people's detriment was deemed constitutional. But we're hoping that maybe some other case can be brought before the Supreme Court again, and then maybe those decisions will change, and then maybe the Riigikogu will also think twice before making people promises and then reneging on them again a few months later."

The justice chancellor highlighted that one issue lately has been the fact that interest groups aren't given sufficient time to examine bills. She believes this is unacceptable.

"The Rules of Procedure of the Government [of the Republic] state that everyone affected by one or another legislative or regulatory amendment must be given sufficient time for a substantive review of the matter," Madise said. "And, for example, if this concerns doctors or businessowners or farmers, then that 'sufficient' means sufficient considering the timing. In other words, you can't expect that so-called interest groups will convene and form their position late at night, over the weekend or during vacation season, when officials are off. You actually have to provide sufficient time."

It seems to her as though sufficient time really sadly often hasn't been granted of late, she acknowledged.

"I believe that is a major and fundamental mistake, because people read the Good Practice of Engagement and the Rules for Good Legislative Practice and the Rules of Procedure of the Government, and of course business associations as well as everyone else interested in what's going to start changing in the state assume that these rules are adhered to," she explained. "But it's become practice that most of these rules rather aren't respected, and rules are adhered to moreso when it comes to minor matters."

Asked by the host whether perhaps it's the new practice for the state to work quickly, Madise said that the state has to work well.

"If you don't want to follow established procedures, then this needs to be thought through, coordinated and those procedures changed," the justice chancellor said, noting that at this time, all of the aforementioned procedures together with their deadlines remain in effect.

It's also true, however, that it's unlikely that any law would be deemed unconstitutional purely due to a short consultation period, she continued.

"So it still remains a question of — can we as a society trust each other, or are we rapidly moving in the direction where not only members of the Riigikogu and the government, and the government and the Riigikogu don't trust one another, but people don't trust either the Riigikogu or the government at all anymore, and they live in the knowledge that absolutely everything can constantly change — that you can't believe a single promise the government makes you?" Madise asked.

"But the Constitution protects an Estonia where the state makes good decisions and where people can peacefully live their lives, develop their business, in the belief that the existing legislative framework is intended to be taken seriously and will last as long as possible," she emphasized.

'Obstruction can't be used to paralyze Riigikogu'

Compared with this spring, the justice chancellor believes the current situation in the Riigikogu has improved. She believes the events of this spring constituted an attack on the constitutional order.

"Not yet a violent attack," she specified. "But a situation in which the Riigikogu, the core of Estonia's state administration, is effectively incapacitated, constitutes an act against the constitutional order according to the prevailing understanding thereof."

Madise added that when taking office, all MPs also give an oath of office in which they swear to remain loyal to the Republic of Estonia and its constitutional order, which means that they cannot abuse any rights, including those rights provided in the Riigikogu Rules of Procedure and Internal Rules Act.

"That doesn't mean that obstruction is unacceptable, but it does mean that it cannot be aimed at unjustifiably calling election results, and with them the Estonian electorate's decision, into question and paralyzing the work of constitutional bodies," she said.


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Editor: Aili Vahtla

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