Herman Schwartz ekspertarvamus 9. detsembril 1991

THE AMERICAN UNIVERSITY WASHINGTON, DC.
MEMORANDUM

TO: Tiit Käbin, Chairman
Constitutional Commission
FROM: Herman Schwartz
DATE: December 9, 1991
SUBJECT: Comments on November 29, 1991, draft 

I am gratified to see that many of the problems I had with the Bill of Rights section have been resolved. 

I don’t mean to sound churlish, but I still have a few problems left with this section, so let me turn to that. I will refer to some of my comments in my October 25, 1991, memo, a copy of which I attach for ready convenience. 

Article 3, last paragraph 

Article 9

I am somewhat confused by the requirement that there be no “preference” for the various reasons. Although I understand that one doesn’t want favoritism, this could adversely affect special programs for particular gender, ethnic, or economically disadvantaged groups (what we in America call “affirmative action”). I’m also a little confused as to what it means to say that “no one may be preferred . . . due to their . . . position of employment.” Surely some people can be elevated because they have higher level jobs. All in all, I think the addition of the words “preferred” and “position of employment” adds little and creates the possibility of confusion. 

Article 11 

I have the same comment as in my original memorandum on the restriction of rights “by law” without any criteria for the law that does the restricting. (See my comment on Article 11.) This also applies to Articles 16 (see my comment on former Article 14), Article 20, and Article 32. The European Convention on Human Rights requirements also requires such criteria. See Articles 5, 8, and the additional important requirement of Article 15 that the restrictions be limited to those “strictly required by the exigencies of the situation.” 

Article 14, paragraph 3 

Article 16 

See my comment on former Article 14. Also, at the very least, there should be some requirement for a court order as there is for Article 20 (secrecy of communications) and Article 11 (suspects in custody). Surely it is as important to require a neutral judicial tribunal to decide whether it is proper to enter and search one’s home as it is to interfere with communications. Therefore, one should add something like “except in those cases prescribed by law and in accordance with an order of a court.” 

Articles 18–19 

I would restate my comment on the former Article 16 respecting the use of “morals.” 

Article 20 

This seems to provide a looser standard than was in the former Article 17 since now it imposes no limits on when communications may be intercepted, whereas previously exceptions could be made only “for the purpose of combatting crime.” I think this is an unfortunate change since this leaves the matter of the justification for such a serious intrusion completely wide open and allows secrecy of messages to be invaded for less important and more dangerous activities such as subversion (loosely defined) and the like. 

Article 23 

Article 26 

I think it is a good improvement to omit the reference in the prior draft to religious instruction for the reasons I mentioned in my comment on former Article 22, paragraph 2. 

Article 31 

I think it is a good improvement to allow everyone “the right to access information on him or her held by state or local government institutions.” 

Article 32 

Similarly, I think it is a very good improvement to allow everyone living legally in Estonia to have freedom of movement and choice of abode. As noted earlier, however, I think that allowing restrictions “by law” without any other criteria raises problems. 

Article 33 

I am curious as to why the prohibition of compulsory work was deleted. 

Article 40 

I think the addition of a restriction on dissemination of information about “business secrets” is a good idea, as I indicated in my comment on former Article 30. On the other hand, I do think that non-citizen residents as well as citizens should have the right to information about the activities of state and local government institutions. The limitation for business, state, and defense secrets (which needs some more drafting) would seem to provide enough protection for the interests involved. After all, if a citizen is allowed to get the information, the assumption must be that he can disseminate it publically. Why should that be different if a non-citizen gets it? There may be an additional administrative burden, but that can be handled in the fee structure.* Because of the citizenship law, many permanent residents may remain non-citizens for quite a while, and yet they have a strong interest in knowing how their tax money is being sent. I think, therefore, that this provision should be expanded to include non-citizens who are resident.
*Fees, however, should not be too high. It may be appropriate to add “at reasonable cost and as promptly as possible.” 

Article 43 

I think this is a very good addition. 

* * *

I would like to suggest that, with all respect, you might look at the Bill of Rights I drafted at Minister Raidla’s suggestion. Although hardly a set of ideal proposals, it may contain some useful suggestions. I have attached another copy. 

CHAPTER III – THE PEOPLE

Article 51 

Deletion of former Article 41 on the Riigikogu’s right to take a public opinion poll, etc., seems to me a wise decision. 

CHAPTER IV – THE STATE ELDER

Article 54, paragraph 7 

Article 55 

Article 56 

Isn’t ten years too long a residency requirement? This could disqualify people who have been abroad during the last few years because they have been driven out of the country or are otherwise in exile. Although I am not sure of the facts, I would suppose this could also include those who have been in political prisons in the Soviet Union. Should not this question of the relevance of previous residency be left up to the electoral body or with 10,000 citizens? If they think that someone who doesn’t meet the ten-year residency requirement should still be the Elder, then why should such a person not be eligible? 

Article 61 

I was very gratified to see that the draft now requires a replacement for any member of the Riigikogu who leaves the legislature. The same goes for Articles 67, etc. 

Article 62 

It would seem to me that criminal procedure should be instituted against the State Elder only on the proposal of the Legal Chancellor. Otherwise, there is a danger that a majority of the members of the Riigikogu may use this for political reasons, especially since there is no longer a requirement that such procedures may be instituted only for very serious matters, as in the original Article 49, and that two-thirds are required for the accusation. 

Article 65 

Although I did not comment on its predecessor, Article 52, this Article 65, paragraph 1, is far more sensible than allowing the authority of the Riigikogu members to go into effect immediately upon election. 

Former Articles 53–55, options 1 and 2 

These articles set out election laws. I take it the decision has been made to leave election laws to the ordinary legislative process. This is a very difficult question. I gather Professor Taagepera thinks this is appropriate, and I would not disagree with him since he is expert in this area, and I am not. However, it does seem to me that this may allow too much tinkering with the electoral process by a party that wins an election in order to keep itself in office. Nevertheless, the procedure chosen in this current draft – to omit any reference to electoral procedures – is that which is followed by most constitutions in the world, though not always for the best of reasons. 

Article 70 

I take it this responds to my prior comments on Articles 60 and 74 about the ambiguities about how many votes are required to adopt something. I take it that the first three paragraphs of this require only a majority of “yes” votes of those present. 

Article 75 

I continue to think that one-quarter is too small for a quorum, especially since several important matters, such as votes of confidence, seem to require only a majority of those present. 

Article 80 

I was very pleased to see that now all members of the Riigikogu are entitled to present questions to the government, etc., that must be answered. I wonder, however, if it might not be wise to require a response within a certain number of days (such as sixty) or at least before the end of the session in which the question is asked, whichever is longer. Incidentally, what is the “Cabinet” other than the Government. 

Article 82 

It is not clear what the word “organizational” (English version) means. 

Article 83 

As indicated earlier in my comment on the Elder’s power, I think the power of the government to conduct foreign relations should be indicated. 

Articles 86, 89 (4) 

I think it is good that the Elder is not allowed to control the composition of the government, as in former Article 66. 

Article 87 

Perhaps the matter is settled by Estonian practice, but there is no indication in the draft I have seen on what the State Secretary does. 

Article 99 

I was very glad to see that the Elder’s power to veto, as set forth in former Article 75, has been sharply curtailed. The only additional comment I would have is that unlike former Article 75 (3), which provides that “if the State Elder does not sign the law or return the law to the Riigikogu, the legislation shall come into force without his or her signature,” new Article 99 says nothing if the Elder chooses not to sign the law or return it. I think it would be sensible to include former Article 75 (3) to take account of that eventuality. 

Article 103 (2) 

I take it that the Riigikogu can disapprove the State Elder’s legal acts immediately, and the acts then cease to be in force immediately. 

CHAPTER IX – FOREIGN RELATIONSHIPS AND FOREIGN TREATIES

Article 115 

This is a very minor point, but I don’t understand why one has to specify the treaties. What of trade or tax or other economic agreements? They may be covered by paragraph 6, but there doesn’t seem to be much point to the listing. 

CHAPTER X – NATIONAL DEFENSE

Article 118 

I don’t understand what Article 118 means. 

Article 124 

This emergency provision strikes me as too loose. It doesn’t make clear how long the state of emergency may last and what rights or other matters may be affected by the extraordinary measures permitted during an emergency. The European Convention, Article 15, provides one guide; the Hungarian and Czechoslovak constitutions provide others. Basically, these provisions establish that such rights as the protection against torture or degrading treatment, retroactive penal legislation, intrusion on religious or other spiritual beliefs, etc., may not be permitted even in an emergency. I think the original provision in the Adams draft was somewhat better in this respect, although it, too, had problems. If possible, it would be appropriate to go through the list of rights and decide which should not be infringed upon during a state of emergency. Also, there should be a time limit. In the United States we found that states of emergencies were kept in force for indefinite periods, giving the executive much more power than he was entitled to ordinarily. For this reason, in 1976 Congress passed a statute setting strict limits on the length of emergencies and giving the Congress a great deal of power over them. 

CHAPTER XI – STATE CONTROL

Article 126 

In the United States, the American version of the State Controller has enormous influence with his reports. He is appointed for fifteen years and is very independent. (He runs something called the General Accounting Office.) I wonder whether the five-year term guarantees the State Controller enough independence to take decisions and make reports which may be very controversial. Article 126 does not, for example, indicate the circumstances under which the Riigikogu can “recall” the State Controller. It may, therefore, be wise to give the Controller a longer term to guarantee independence. 

CHAPTER XII – THE LEGAL CHANCELLOR

Article 130 

I was glad to see the slight technical suggestion I made about including conformity with the constitution was adopted. 

Article 131

I have a similar comment about independence as I did about the State Controller. I wonder whether seven years is long enough and, although it is a substantial amount of time, it is also not clear to me the grounds on which the Legal Chancellor may be “recalled” by the Riigikogu. This is an office that will certainly engage in controversial activities, and I think it should be given more independence. Although life tenure may be a bit too long, seven years may be too short. Perhaps a ten-year term would be more helpful to ensuring the necessary independence. 

Article 133 

CHAPTER XIII – THE COURTS

Although there has been some improvement in indicating which courts can pass on constitutionality, it does seem to me that, as I stated before in my commentary on former Article 106, this section is too thin. Who may apply to the court and under what circumstances (abstract?), etc., should be specified in the constitution. On the other hand, it can be done by a law and probably would serve fairly well. 

Article 140 

I continue to have doubts about appointing all judges for life, particularly in the early stages. 

CHAPTER XV – AMENDMENTS

I think this is vastly improved. I think that the requirement of a majority of two consecutive complements of the Riigikogu, if I understand it, means at two succeeding sessions. Although this may sound a bit inconsistent with what I said before (though not necessarily so), this also may be a bit too flexible. I think, nevertheless, that flexibility is important at the beginning, so I think that it may be wise to have this provision for the first ten years and then perhaps a somewhat more stringent provision such as that in Article 152 or something like it. 

* * *

All in all, I think some very significant improvements have been made. I hope the above comments may help your process improve the matter even more. I look forward to discussing the comments with you.