MEMORANDUM
To: Estonian Constitutional Commission
FROM: Herman Schwartz
DATE: October 1, 1991
SUBJECT: Comments on Draft Constitution of September 19, 1991
I think items 3 and 5 of my proposal on the primacy of bill of rights and on the necessary limitation of restriction is of special importance. Even more important, however, are the provisions for enforcement, which include item 7 on the Ombudsman. Finally, I would bring to your attention the specific concern for pretrial detention in paragraph 8, since pretrial detention is one of the greatest sources of inhuman treatment.
Among other provisions that I would mention in the Sept 19 draft are Article 3, which also deals with enforcement-rights of compensation – and the article on the rights of criminal defendants where I simply reference the European Convention. I think I would add to that that people who are detained by the police are entitled to consult a lawyer immediately and should be given an opportunity to do so.
Incidentally, I think the minority provisions are especially good and, given the current circumstances, commendable.
Finally, I think that the freedom of information provision that I suggested in Article 16 is quite vital to the operation of a democracy.
Let me now turn to specific comments on this very good draft.
Article 14, paragraph 2
This is one of those areas where I am concerned that the only limitation is that the limitation of rights be “specified and regulated by law. ” This leaves it up to the legislature to limit the right in any way that the legislature thinks appropriate. The same goes with the next paragraph for the reference to “court order.” In both cases, as I tried to indicate, there should be some limitation such as for the purposes of criminal enforcement.
Incidentally, this is the place where the right to counsel should be made available immediately to people who are arrested or otherwise detained by the police.
Article 15
Is there to be a provision for jury trials?
Article 19
I think this is too weak insofar as remedies are concerned. I would suggest you look at my paragraph 6 and Article 4, paragraph 3.
Article 22
This is another case where an encroachment on rights is permitted if “prescribed by law.”
Article 23
Is this intended to deal with pretrial detention? The paragraph is not clear.
Article 28
As indicated in my comment on the European Convention on page 6 under Articles 7–9, I find references to “morality” much too vague. This applies also to Article 32 as well as to the reference to “the safety of state security.” Both of these can create serious problems for the rights involved because they are so general that they can be invoked without too much limitation.
Mention press.
Article 30
I think citizens and others should have the right to access information not only on themselves, but also on all government activities. This is why I proposed Article 16.
Article 31
Is “determining the truth in a criminal case” the only basis for intrusion on the privacy of communications? I think that may be too limiting. See my Article 5, which I would now amend to eliminate the reference to national security for the reasons I mentioned above with respect to state security.
Article 33
Does this mean that people do not have the right to assemble in profit associations without special permission? The next sentence would seem to indicate that they can, but there is a confusion between the two.
Paragraph 2: why should secret associations and leagues be forbidden? We have found in this country that many organizations which disagree with government policy must have some kind of secrecy of their membership. Indeed, we have had a Supreme Court case upholding this.
Article 41
Do you not plan to give a constitutional right to minimum wage?
Article 47
Is the language of a national minority to be used only where that minority is the majority in a particular region? In other countries the nonstate language can be used where a minority accounts for a substantial portion, such as twenty percent. See Czechoslovakia.
Article 50
There is an inconsistency in that the first sentence of the second paragraph of Article 50 refers to 45–48, which presumably would include Article 47. The second sentence, however, includes Article 47. Article 47 deals with language usage in certain areas, and this is a sensitive matter. In any event, the inconsistency has to be cleaned up.
CHAPTER III
Article 55
Why should citizens in military service not vote? This seems like a harsh rule; I have not seen it elsewhere.
Article 66
I take it the reference to a majority vote means a majority of those voting.
Article 67
Is the 20 days 20 calendar or 20 working days?
Article 85
Under what circumstances can the President recall the Prime Minister and the Government?
Article 97
Why not allow individual members to initiate legislation? It may be politically important for they.
Article 102
There will rarely be a Art. 102 referendum on proposed legislation, for the consequence of calling the referendum is the possibility of the Riigikogu members losing their seats in a new election if the referendum fails.
Article 104
A 2/3 requirement to overcome a veto gives the President a great deal a power, for 2/3 is hard to get, as US experience shows.
Article 110
This is an unusual provision. Most constitutions allow treaties to override law. This could create international problem.
Article 133
Life tenure for the Chancellor is very long for a relatively new institution. 10 years would seem enough.
Also, life tenure for all judges? Too long.
Article 144
This is a very confusing – to me – provision. I cannot figure out the different powers of the different courts.
Article 160
In the early years, when new institutions are being created, some may not work out. It may therefore be wise to make amendments easier in the first 5–10 years.