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President's legal adviser: Up to Riigikogu to resolve deadlock

The Riigikogu's great hall.
The Riigikogu's great hall. Source: Ken Mürk/ERR

The legislature in Estonia, the Riigikogu, must resolve the issue of obstruction tactics, tactics which crossed the boundaries of members of parliament's powers, the legal adviser to President Alar Karis says.

The executive, too, has its part to play, since it must not start to exercise legislative power by constantly tying bills to motions of confidence, the presidential legal adviser, Hent Kalmo, went on.

On the other hand, Kalmo expressed optimism that the matter can be resolved along these lines.

The adviser made his remarks after President Karis this week declined to promulgate two laws, sending the matter to the Supreme Court.

Hent Kalmo told ERR on Wednesday that, in the opinion of the head of state, prolonging the continuous tying of bills to a vote of confidence is no longer viable in the current situation at the Riigikogu, on the grounds this distorts parliamentary democracy.

Tying a vote of confidence in the government to any bill means the Riigikogu is voting on that alone – and with 60 seats at the 101-seat Riigikogu, the coalition has been confident such votes pass.

On the other hand, this means that this is all that is being voted on, and the content of a bill is not held up for a vote nor even debated substantively.

The practice is also the Reform-Eesti 200-SDE coalition's response to an ongoing filibuster by the opposition, which started in late spring shortly after the government took office, then restarted in September, following the summer recess.

Kalmo said: "On the one hand, Riigikogu MPs cannot exercise their mandate in the sense of taking part in the adoption of legislation in the usual way, asking questions, etc., while on the other, the nature of the vote also alters significantly, as an assessment of whether they support the government or not. This is certainly another matter."

"MPs must be able to evaluate each bill on an individual basis, regardless of whether they support the government's general direction or not," adding that in the situation currently, where the bill is related to the issue of confidence, they give an assessment of the government itself, instead.

The legislature should deal with obstruction tactics, which crossed boundaries, at face value, Kalmo added, while the executive cannot cross over into legislative power by constantly tying bills to motions of confidence.

"We certainly need clarity on this matter, and today. We are in a situation where several bills are tied to the issue of trust, more than ever before in fact. We need an answer to the question under what conditions this is possible," Kalmo went on.

The Riigikogu should itself resolve the matter of the limits of filibustering being overstepped; the solution is not for the government to exercise legislative power by using votes of confidence, Kalmo said.

While finding a compromise will without a doubt be difficult, this is the only alternative to the unimaginable situation where that deadlock continues indefinitely, with the Riigikogu reduced to the role of assessing whether the government can continue in office.

"One consideration is that, naturally, the rules of procedure of the Riigikogu must be interpreted in the light of constitutional principles," Kalmo went on, adding that "a situation may develop where it is necessary to choose between two evils. The fact that one solution is bad does not necessarily mean that another solution cannot be even worse," the expert continued.

In summary, the most significant consideration is that resolving the impasse must not be every single bill being linked to a vote of confidence, Kalmo said.

Kalmo added that solutions doe exist within the Riigikogu's purview and within the framework of the Constitution.

Kalmo said the Supreme Court has provided guidelines as to which conditions the rights of members of the Riigikogu can be restricted; the same rights that are exercised in relation to filibustering when this becomes an abuse of the powers of an MP."

"In the present case, the government, when it linked this particular law to the motion of confidence, took the view that this was an obstruction of a manner which constituted an abuse of the powers granted to an MP. In other words, essentially an illegal obstruction. Whether this is indeed the case or not is a matter for the court, as a last resort, to judge. But it is precisely in a situation like this that it is viable to limit the use of this obstruction," he said.

It is within this framework that the way out of the current impasse must be found, he said, citing Supreme Court precedent.

"As the Supreme Court has stated before, these conflicts must be resolved primarily by the Riigikogu," Kalmo said.

The government, too, must be able to implement its pre-agreed political program, hence why the constitution allows for confidence votes in certain cases.

The key here being "certain cases," Kalmo said: "In the event of a conflict between the executive and the legislature; to simply canvass the Riigikogu on whether it supports the government or not."

"At this point, the Supreme Court has also given us some guidelines in terms of what to do in the case of such conflicts and what limit legitimate obstruction can reach," Kalmo added.

Kalmo called it "important" that there is "simply the recognition that this possibility exists" adding that "above all, it has not been possible to show that such a possibility does not in fact exist."

Beyond that, Kalmo stressed that neither he nor President Alar Karis were or have the powers to issue instructions on how the Riigikogu should proceed, on the basis of the principle of separation of powers.

President Alar Karis has sent amendments to the Land Tax Act and Taxation Act passed by the Riigikogu last month to the Supreme Court, requested they be declared unconstitutional, due to thee adoption of the law being tied to a vote of confidence.

"The actions of some Riigikogu members cannot give the government the right to continue to restrict the ability of all other members of the Riigikogu to exercise their mandate," the president said.

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Editor: Andrew Whyte, Huko Aaspõllu

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