Meelis Oidsalu: President's title of 'supreme commander of national defense' misleading

President-elect Ülle Madise wants the National Defense Council to meet more regularly, raising questions about how she will use the presidency's largely symbolic role in defense policy.
The next elected president of the Republic of Estonia, Ülle Madise, has already announced one change she wants to make to the presidency: convening the National Defense Council more regularly and conducting its work more systematically.
The National Defense Council has existed as an advisory body to the head of state, first the state elder and later the president, since 1933. It was also included in the 1992 Constitution.
Records of the Constitutional Assembly from more than three decades ago show a fundamental debate over who should direct national defense. One central question was to whom the commander of the Defense Forces should report and how power should be balanced among the president, the government and the Riigikogu. One option under discussion would have made the commander answerable to a national defense council formed by the Riigikogu.
The Constitution as adopted left the commander's chain of command unclear. Although executive power belonged to the government, the Riigikogu appointed the commander on the president's proposal.
Historian Hellar Lill has attributed that vague arrangement to fears that one of Estonia's political leaders at the time might have undemocratic ambitions. Liia Hänni, a member of the Constitutional Assembly, has said something similar.
The ambiguity later caused problems. Instead of the hoped-for balance, the 1990s and 2000s brought disputes over defense and the limits of officials' authority.
A 2011 constitutional amendment removed the provision under which the Riigikogu appointed the commander of the Defense Forces on the president's proposal. The power to make the appointment was assigned by law to the government.
There has, admittedly, been a small but significant change since then. An amendment taking effect October 1 requires a candidate for commander to appear before the full Riigikogu before appointment and its National Defense Committee must give binding consent to the government. Only then can the government appoint the commander on the defense minister's proposal.
The change arose less from a carefully considered redesign of the constitutional system than from a political compromise in the Riigikogu: To pass the crisis management and national defense law, the government needed to overcome the National Defense Committee's opposition.
Meanwhile, the Constitution still describes the president as the "supreme commander of national defense." The phrase was carried into the 1992 Constitution from an earlier presidential system and remains misleading.
The 2011 reform was fairly narrow. Even the annotated edition of the Constitution acknowledges that "the role of the President of the Republic as supreme commander of national defense is primarily symbolic and balancing." The commentary also notes that current laws give the president no separate powers or duties arising specifically from that status.
The president does have some substantive national defense powers, though they are largely held in reserve. The president proposes that the Riigikogu declare a state of war, mobilization or demobilization. In the event of aggression against Estonia, the president may declare a state of war and mobilization without waiting for a Riigikogu decision. The law also provides for cases in which involving the Defense Forces or the Defense League in domestic public order and crisis response requires the president's consent.
These are real powers, but they are so occasional and so closely tied to exceptional circumstances that they do not amount to what most people would understand as actually being in supreme command of national defense. The misleading title also lends somewhat greater weight to views expressed publicly after National Defense Council meetings and gives the head of state a greater appearance of authority. The question is how president-elect Ülle Madise and her highly experienced new security and foreign policy team will perform this symbolic role.
Madise has justified convening the National Defense Council more regularly and conducting its work more systematically by pointing to the need to develop comprehensive security. The state secretary, who is responsible for planning comprehensive security, and the President's Office certainly share an interest here. The Riigikogu National Defense Committee has shown little enthusiasm for comprehensive national defense; it, too, has dealt mainly with military defense, despite proposals from the Government Office for more frequent discussions of broader security issues.
Madise's personnel choices add another dimension. As an adviser to the National Defense Council, former State Secretary Taimar Peterkop will be able both to provide a counterweight to current State Secretary Keit Kasemets and to press him to act. The Government Office, led by Kasemets, has a legal duty to coordinate and plan comprehensive national defense across government agencies.
Looking at the subjects previous presidents have brought before the National Defense Council, there is nothing new about Madise's emphasis. During her presidency, Kersti Kaljulaid placed a strong emphasis on comprehensive security, herself taking a leading policy role in discussions of energy security. The ID card crisis occurred during her term and was discussed twice. The security of electronic voting was also on the agenda.
During President Alar Karis' term, the council has discussed civil protection, the defense industry, energy security and the threat of migration being used as a weapon.
Even under President Toomas Hendrik Ilves, whose focus was strongly on foreign policy, broader security issues had a prominent place on the council's agenda: the abduction of (ISS employee — ed.) Eston Kohver and border security, the Viljandi school shooting and the refugee crisis.
The infrequent use of the National Defense Council drew criticism as far back as Lennart Meri's presidency. In the summer of 2000, Tiit Tammsaar, then chair of the Riigikogu National Defense Committee, criticized Meri for failing to convene the council even once in a year and a half.
It is not yet clear how often the council will meet under Madise's plan. In the busiest years under both Ilves and Kaljulaid — 2014 and 2017, respectively — it met four times.
Quarterly meetings would therefore be nothing new. What would be new is maintaining that schedule. That would put pressure on the president to select a wider range of topics for discussion, bringing comprehensive security issues more frequently and in greater depth to the attention of the council's other members, including the prime minister, the speaker of the Riigikogu and the chairs of its Foreign Affairs and National Defense committees.
Yet Estonia's Constitution still misleads the public about the president's role as "supreme commander of national defense." Under Madise, too, this could create unnecessary new tensions between Stenbock House and Kadriorg. One might ask, for example, whether President Alar Karis' statements on security policy have carried symbolic or substantive weight and whether they have balanced Estonia's foreign policy or added to tensions around it.
Strong presidential statements on security policy can thus have a much greater political impact than the president's formal powers and symbolic role might suggest. They can support and balance the executive branch's policies, but with a different approach, they can also create new tensions between Kadriorg and the executive branch.
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Editor: Marcus Turovski











