Herman Schwartz ekspertarvamus 25. oktoobril 1991

This seems to me much too broad. Although I think nonpermanent residents who aren’t citizens should enjoy most of the rights available to citizens, I think no country grants them all rights. This is compounded by the fact that the draft refers to “human rights and civil rights,” but nowhere in this document is “human rights and civil rights” defined or even used again, as far as I could see. “Human rights and civil rights” can include everything, and it may mean that many rights described in this constitution which probably do not appropriately belong to noncitizens might be included. I have in mind such things as voting and the rights under the new property law. Are these included? Moreover, Articles 29 and 30 refer to citizens. Normally that would indicate that these rights apply only to “citizens,” which would be borne out by the fact that elsewhere the word “persons” is used (Article 27) or “everyone” (Article 25). However, Article 5 seems to say that this use of the word “citizen” doesn’t mean anything. As I go through the draft, I will point out a few other places where it may be that the draftsmen really did not intend for noncitizens to have the same rights but Article 5 seems to give them those rights.

To sum up: Where a right is supposed to be available to everyone it should say so, as the draft does at Article 25; where only citizens are involved, then it should say so, and where it applies to both, as in Article 31, it should say so as well. Article 5 creates needless confusion.

Article 11 contains the same problem that I flagged in the Ministry of Justice draft, and it is a problem that recurs in many provisions in this constitution: Rights are said to be available “other than in such cases and by such procedures as described by law.” As I have noted earlier, there is a tendency to think that if one avoids administrative lawmaking, one has resolved the problem of arbitrary official behavior, but a provision such as the one described above leaves the legislature free to set limitations of any kind and establishes parliamentary supremacy over the rights involved. This type of provision also appears in Articles 14, 17, 19, 29, and elsewhere.

A variation of this appears in Article 11, paragraph 2, which allows a suspect to be held in custody more than 48 hours if there is a “specific court order.” Here it is the judge who is left completely free, and he should not be.

In all these cases the limitation on the right should be subjected to certain standards and criteria which are set out in the constitution. This is the approach of the European Convention on Human Rights and is indeed the approach that is used in Article 16, which allows a limit on the right to “freely propagate information and to express opinions… [but only] in the defense of state security,” etc. Since Estonia plans to join the Council of Europe and will thereby be bound by the Convention, these provisions in the Adams draft would seem inconsistent with the Convention.

Also, as noted in my earlier comments and my proposed Bill of Rights, the limitations should be limited to the minimum necessary to the purpose. Compare Article 15 of the European Convention.

I therefore suggest that the above noted sections be redrafted with appropriate standards.

Although it is very common in Europe to allow restrictions on freedom in the defense of “morals, human dignity, and honor,” this has always bothered American lawyers, like myself, who see this as a major loophole, allowing repression against unpopular people who engage in somewhat obstreperous or offensive expression in order to make a point. For example, in the United States flag burning has been protected as a form of dissenting expression. How would it come out under this provision?

This limitation in the name of “morals” could also be used to encroach on literature that is explicit or graphic, such as James Joyce’s Ulysses or certain modern films. Although the next paragraph says, “there shall be no censorship in Estonia.” It’s hard to reconcile that with the permission in the first paragraph for a restriction of speech and expression in the name of state security, public order, etc.

If this is indeed intended to limit “freedom of movement and choice of abode” to citizens, that strikes me as too restrictive; what is the effect of Article 5 here?

This provision also allows a restriction even for citizens it “by law,” without any criteria, raising the problems I have already mentioned.

This provision seems both too broad and too narrow.

The same comment as in Article 29 about improperly limiting a right to citizens would seem to apply to Article 30. Why shouldn’t noncitizens have the right of access to documents of interest?

On the other hand, the restriction of the right of access to only “protection of state and defense secrets” is much too narrow. Surely the state does not have to reveal documents involving either personal privacy or trade secrets. Exceptions may also be necessary for the purposes of law enforcement, which I am not sure fit within the category of “state and defense secrets.”

I think this provision has to be thought through, although its basic thrust, namely open government, is absolutely vital to a truly democratic government.

This is also both too limited and too broad. It is too limited in that it does not provide enough of a remedy. It says that one may apply “to the Legal Chancellor or to the courts,” but it does not say that there shall be a damages remedy against the officials or the government for any such violation, and it does not indicate that one may always go to the courts instead of to the Legal Chancellor, if that is what is intended.

On the other hand, one truly cannot go to either the Legal Chancellor or to the court if the state does not fulfill its obligation to pass legislation to take care of some of the economic social rights such as Article 27 (assistance for old or disabled people) or Article 22 relating to education or Article 21 relating to the family. To allow the courts or the Legal Chancellor to intrude into this area of legislative discretion would be to seriously encroach on separation of powers principles.

Why state in a constitution that the Riigikogu may conduct a public opinion poll? Surely they can do that without constitutional permission. Equally surely, they should not be obligated to be guided by it.

In that connection Article 41, paragraph 2, is a dangerous provision because it is not clear what “a guide for state institutions and their work” directs, if anything. The provision is written in mandatory terms (“shall be”). What does that mean? Must state institutions rely on such results? Polling techniques are much too unsophisticated and much too subject to manipulation by the way questions are asked, for them to have any official status at all. All in all, I think that Article 41 should be deleted in its entirety as both unnecessary and dangerous.

Twenty-five percent is a very small quorum. What follows from there being a quorum? The section on foreign treaties, for example Article 85, refers to “approval by the Riigikogu,” and Article 70(2), dealing with appointments of the state secretary, also refers to “approval of the Riigikogu.” Does this mean that a simple majority of only the quorum is enough? Article 72, on the other hand, provides for a vote by a “simple majority.” Is that different from what is meant by “the approval of the Riigikogu”?

These may be translation problems, but I had a lot of difficulty understanding these different uses, and it is very unclear to me in at least some of these cases (such as those mentioned) what actual number is required to get legislation adopted. By contrast, Article 73 says quite specifically that “a majority of two-thirds of the Riigikogu.” That sounds very much as if it is two-thirds of the full complement, and at another point it says quite specifically that a proportion of the “legal complement” is required. This is true, for example, with respect to this Article 60.
All in all, the different usages create confusion.

(1) an override by just a majority (which is presumably what is required to adopt a law – as noted several times above, the draft surprisingly does not state how many votes are necessary to adopt legislation), or

(2) letting the law go into effect after a week or so without a further vote and allowing the Elder to ask the National Court to consider the constitutionality of any such legislation enacted after the Elder’s veto.

The Legal Chancellor should be obligated to present an application to the courts when not only a law but also the Constitution has been infringed.

Also, surely this doesn’t mean that the application should be presented to the courts, even if the matter can be resolved amicably without a judicial action. The word “obligated” in this context seems to be a little strong.

This Article, and the prior brief reference to recourse to the courts, are the only remedial provisions referred to. The next chapter on the judiciary gives very few rights and says very little about enforcement of rights. That kind of gap should be filled with, as I said earlier, a provision for damages liability of government officials and government agencies for failure to honor the rights set forth in this constitution and other important rights, perhaps with provision for an administrative court to handle charges against government officials and agencies, etc.

With respect to constitutional issues, as I noted earlier, this chapter does not indicate how constitutional issues get to the court:

(1) Who may raise the issue – only the parties to a lawsuit? Government officials? Anyone? It is dangerous to overwhelm the court with such cases, particularly at an early stage, but one should also not limit access too much. Surely something should be said to ensure access to the courts for people whose rights have been violated and to the National Court for ultimate resolution of these questions.

(2) Can it be an abstract question, or must it be an issue that is necessary to the resolution of a lawsuit? If abstract, is the court’s authority limited to laws already adopted or can it include drafts? (It shouldn’t include drafts, but does in some countries.) If a constitutional issue arises in a lawsuit, is it to be referred immediately to the National Court, or only after it is processed through the lower courts?

(3) Can all courts declare a law “null and void” or only the National Court? 

(4) Are there mootness or other procedural requirements?

Here it is very clear that amendments can be initiated only by “the majority of the legal complement of the Riigikogu.” The specificity here makes the other references to action (“approval,” “adoption”) by the Riigikogu even more ambiguous.

More importantly, this chapter on amending the constitution makes it very, very difficult to do so. To require a majority of the legal complement merely to initiate amendments is a very difficult threshold requirement. Secondly, requiring that the proposed amendment be adopted by the same absolute majority makes it even harder, and then going to a referendum adds still another high hurdle.

At this early stage, this constitution inevitably has flaws that cannot possibly be seen, and problems that no one can foresee. It is therefore unwise to make it very difficult to amend. One possible change would be to allow amendments to be initiated by a small proportion of the Riigikogu because after all the protection against excessive amendment can be found in the requirement that a majority of the legal complement approve it and, for the important provisions, that they can be adopted only by a referendum.