In January, President Alar Karis appealed to the Supreme Court with a request to declare unconstitutional the act that amends the land tax and tax administration acts, adopted by the Riigikogu on November 23 by a vote of confidence. The Supreme Court heard the case in open session on Tuesday.

The Supreme Court wanted to know from the parties whether, in their opinion, there is a legitimate purpose for linking bills to a vote of confidence and, if so, what it is. Secondly, they wanted to know the assessment of the weight of a particular bill, i.e. its inevitability and its relation to the state budget.

Hent Kalmo, the president's legal adviser, said that if to depart from the assumption that the link to the issue of confidence presupposes an abnormal situation in the governance of the country, a deadlock with the parliament and the inevitability of the adoption of the bill, the specific case does not meet these criteria.

"It is not an exceptional situation that Parliament does not agree with the government's policy in every detail. It is a rather normal situation, not a deadlock because the Riigikogu is fulfilling its constitutional role," he said, adding that the government cannot expect all bills to be passed unchanged in the Riigikogu.

One of the justifications given by the government was the time-sensitive nature of the bill, which would be implemented as early as January 1.

According to Kalmo, the government cannot impose a time span on parliament, which would suit the government, nor can it tie the bills to a vote of confidence because parliament would otherwise be unable to pass them in time.

"The fact that the law is not passed within a timeframe that suits the government does not make it inevitable," he said.

Kalmo said that the deadlock in the Riigikogu last November-December does not correspond to the deadlock in the Riigikogu, because it implies that the government is not allowed to govern, which means that the majority in the Riigikogu on the one hand does not accept the bills presented by the government, and on the other hand does not censure it, as the Supreme Court has noted. The fact that the Riigikogu amends and debates a bill longer than the government would like does not mean that the government's work is obstructed, he added.

"The government may perceive this as obstruction, but it is not a deadlock," Kalmo said.

Kalmo pointed out that obstructionism is a natural part of parliamentary practice and that it is not a crisis or a deadlock, but something that the parliament has to deal with on its own. However, if any normal parliamentary practice that may in one way or another appear obstructive to the government is described as obstructionism, this is an obvious danger that should be avoided, he added.

Kalmo argued that it was possible to speak of inevitability in the case of bills such as the state budget, but not in the case of a controversial bill. The government's justification that the Tax and Customs Board has started administrative preparations certainly does not mean that it is inevitable.

Kalmo said that to accept the argument that a link to the issue of trust is always inevitable is to lose the substance of the idea.

"Inevitability must be given substance. In the case of this bill, it is sorely lacking. In the case of this bill, there was not even a doubt about it," he said, explaining why the president did not return other bills passed at the same time on a vote of confidence.

In addition to formal errors, the procedure was marred by substantive errors as well

The representatives of the Riigikogu, when considering the extent to which their rights were curtailed by the specific procedure, pointed out that in reality no substantive changes were made to the draft after it was returned by the president and that the proposals made could be seen as a desire to commit illegal obstruction.

Therefore, it cannot be argued that the Riigikogu was deprived of the possibility of a substantive debate.

Chancellor of Justice Ülle Madise disagreed with this assessment, saying that the few hundred amendments submitted could be understood as a desire to prevent the adoption of the draft, but in her opinion, the amendments had a content that changed the draft, especially the deadlines, and should have been discussed.

According to Madise, the failure to comply with the inclusion requirements and the almost complete absence of impact assessments means that in addition to the formal unconstitutionality of the draft, there may also be a substantive unconstitutionality, and if the Supreme Court or the president does not assess this possibility, the Chancellor of Justice will do so.

Kalmo also noted that not discussing the amendments related to the change of deadlines is the damage done to the parliament, i.e., it deprives the parliament of the opportunity to discuss the draft.

He said that debating the amendments would have provided an opportunity to break the obstruction in a parliamentary way, instead the controversies now have to be debated by the Supreme Court.

The government representatives pointed out that in the case of a particular draft, the government was convinced that it was indispensable for the implementation of the policy and that it was the government's right to decide on it and set deadlines.

Government representatives also pointed out that when the president promulgated all the other bills tied to the confidence vote, he acknowledged that in fact a deadlock.

The Ministry of Justice also said that there was a deadlock between the parliament and the government, which hindered the work of the government and the implementation of its policies.

Chancellor of Justice Madise said that, in her opinion, the aim of the government's action was not legitimate, as the specific bill was not time-critical in the same way as the state budget is.

The government's right to implement its political program should not be understood in such a general and absolute way, as this would mean that all bills could be tied to a vote of confidence, in which case the work of the Riigikogu would lose its meaning, she said.

Kalmo said that even after the president sent the bill back to the Riigikogu, there was no vote on the amendments in the Riigikogu, which could lead to a situation where the president's oversight loses all meaning.

The Supreme Court is expected to announce its decision by April at the latest.

The president's concern: the government is taking over the work of the Riigikogu.

The president sent the Land Tax Act and the Tax Organization Act, which were passed by the Riigikogu at the end of last year, back to the Riigikogu, which passed them without changes ten days later.

According to the president, procedural rules were violated in the adoption of the law because the bill was improperly linked to a question of confidence in the government, and therefore the members of the Riigikogu were not given the opportunity to propose or discuss amendments.

The president acknowledged that there is no rule as to when a bill can be linked to a question of confidence, but that it can only be used in exceptional cases. Excessive use of the question of confidence means that the government interferes excessively in the legislative process and the work of the Riigikogu and calls into question the separation of powers.

The president also pointed out that obstructionism in parliament is as such acceptable and it alone does not justify linking a bill to a confidence motion. It is only justifiable when it is used to resolve the opposition between the government and parliament, and it is unavoidable when the government is unable to implement its political program.

The president said that conflicts in parliament must be resolved by the Riigikogu itself and that there is no need for the government to exercise legislative power through a vote of confidence.

Linking of bills to a question of confidence in the government is dealt with, for example, in Article 98 of the Estonian Constitution.

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