Comments on the Constitutional Assembly Draft Constitution of 13 December 1991
I have been asked to comment on the Constitutional Assembly Draft Constitution of 13 December 1991. As I am not able to read Estonian my comments are based on the unofficial English translation. However, the Estonian text has been at my disposal, and in some cases I have been able to compare the English translation with the Estonian text. As the Danish Constitution is the constitution with which I am most familiar, I have mainly used examples from the Danish Constitution for comparison. I have tried to keep my comments as brief as possible; I am willing to elaborate, if more detailed comments are called for.
Re Article 12, Section 3:
Forty-eight hours seems a rather long time-limit. – Article 71, Section 3, of the Danish Constitution provides that any person who is taken into custody shall be brought before a judge within twenty-four hours. – In the concluding document of the Copenhagen meeting of the Conference on the Human Dimension of the CSCE, held in June 1990, the participating states declared that a basic element of justice was that any person arrested or detained on a criminal charge should have the right to be brought promptly before a judge or other officer authorized by law to decide upon the lawfulness of the arrest or detention. Forty-eight hours can hardly be said to fulfill the requirement of “promptly.” (It should not be forgotten that Estonia is now a member of the CSCE).
Re Article 17:
There is no provision concerning search warrants. In most democratic constitutions there is a general requirement to that effect. (Article 20 of the Draft Constitution contains a clause concerning court orders as the basis for telephone tapping etcetera).
Re Article 19, second sentence:
Modern democratic theory would suggest an addition, such as “…, provided that such restrictions do not violate the idea of freedom of opinion.” An addition along these lines would express the idea which in German constitutional theory is called “Schranke-Schranke”, meaning that although some of the fundamental rights may be subject to restrictions, such restrictions should be consistent with the principles of the constitution. Moreover, the suggested addition might be seen as an expression of the doctrine of “less drastic means,” which in American constitutional law has been expounded to secure that the least restrictive alternative be chosen when limitations of fundamental rights are at issue.
Re Article 21:
There is no provision concerning the internal structure of political parties and the unimpeded access to the media for all political parties. Various modern European constitutions contain provisions concerning such matters. A survey of such constitutional provisions is attached to the present comments as an annex.
Re Article 23, second sentence:
Modern democratic theory would suggest an addition, such as “…, provided that such restrictions do not violate the idea of freedom of assembly,” cf. the comments above re Article 19, second sentence. One reason why such an addition is called for is that the concept of “public order” is very vague.
Re Article 32, Section 1, first sentence:
This sentence may be omitted. It may have an ominous ring to people who remember that once there was a German regime that had the words “Arbeit macht frei” as one of its slogans.
Re Article 33, Section 3:
It may be advisable to replace the word “copyright” by “intellectual property rights.” (The Estonian word “autoriõigust” may be too narrow from a modern point of view).
Re Article 35, Section 1:
This provision is not consistent with the idea of the welfare state. There may be different opinions about the blessings of the welfare state, but it does not seem appropriate that the founding fathers in the year of 1992 take a constitutional stance against the idea of the welfare state.
Re Article 39, second sentence:
In addition to business and State secrets the need to protect the privacy of ordinary citizens should be taken into account, and words to that effect should be inserted in the provision.
Re Article 44:
It may be advisable to add: “…, to the extent that such restrictions are strictly required by the exigencies of the situation.” – An addition along these lines would bring the provision in conformance with the concluding document of the Copenhagen meeting of the Conference on the Human Dimension of the CSCE held in June 1990, which stressed that emergency measures derogating from obligations relating to human rights and fundamental freedoms must be limited to the extent strictly required by the exigencies of the situation.
Re Article 46:
Article 46, Section 1, provides that in cases where rights listed in Chapter 2 of the Constitution, “or universally recognized human rights,” are violated, there shall exist the right to apply to the courts, and Article 46, Section 2, provides that in such cases the basis for a decision by the court shall be the Articles of Chapter 2 of the Constitution. – How can cases concerning violations of universally recognized human rights not mentioned in Chapter 2 of the Constitution be decided on the basis of the Articles of Chapter 2 of the Constitution?
Re Article 48, Section 2:
This provision should be rephrased as follows: “It may be prescribed by law that citizens who have been declared incapable by a court shall not be entitled to vote.” – The classic argument that people who cannot handle their own affairs should not be allowed to take part in decisions on governing the State does not apply in modern states with a liberal economy. In such states most of the people declared incapable by the courts are old ladies who have inherited a large fortune. They are declared incapable to protect them from the scheming of fraudulent persons. They do not understand the complicated financial operations which their deceased husbands were involved in, but they are perfectly able to judge which political party they should vote for. The legislature may decide on the matter, but it should not be constitutionally excluded that persons who have been declared incapable be entitled to vote.
Re Article 49:
This provision should be rephrased as follows: “It may be prescribed by law that citizens who have been declared guilty by a court and who are serving a sentence in a place of detention shall not be entitled to vote.” – A similar provision is found in Article 29 of the Danish Constitution. Presently, there are no legislative provisions in Denmark barring prison inmates from voting, and practical arrangements have been made to enable Danish prison inmates to vote. This is thought to be part of the rehabilitation process. Time may not be ripe for such liberal views in Estonia, but the legislature should not be constitutionally excluded from allowing prisoners to vote.
Re Article 57, No. 4:
It may be appropriate to add: “…, in accordance with Article 111 of the Constitution.”
Re Article 57, No. 11:
In most countries in the West it would seem strange that a parliament be given powers to present statements, declarations and appeals to foreign States and international organizations. Normally, international transactions are carried out by the executive. Parliaments may deal with questions concerning international affairs at the domestic level, but normally parliaments do not address themselves directly to foreign States and international organizations.
Re Article 69, Section 2:
Should this provision comprise guilty verdicts in all cases? How about guilty verdicts in cases concerning petty crime? – Under Article 30 of the Danish Constitution a member of the Danish Parliament may lose his seat “if he has been convicted of an act which in the eyes of the general public makes him unworthy of being a member of the Parliament.” The Danish Parliament decides on such matters by a simple majority.
Re Article 71, No. 2:
Should this provision comprise all categories of diplomatic representatives?
Re Article 118, Section 2:
Shouldn’t there be a provision to the effect that measures taken in pursuance of this provision shall be submitted to the Riigikogu as soon as possible? – Under Article 19, Section 2, of the Danish Constitution the Danish Government may use military force against a foreign State in case of an armed attack upon the Danish territory or upon Danish forces, but measures taken in pursuance of this provision shall immediately be submitted to the Danish Parliament, and if the Parliament is not in session it shall be convoked immediately.
Re Article 120:
It may be advisable to insert a provision to the effect that emergency measures derogating from obligations relating to human rights and fundamental freedoms must be limited to the extent strictly required by the exigencies of the situation, cf. the comments above re Article 44.
Re Article 140 and Article 143:
There is no constitutional provision to the effect that judges shall not be dismissed except by judgment rendered by a court of law. Such a provision, which should apply to all categories of judges, is important for the protection of the independence of the courts.
Tallinn, 14 January 1992
Peter Germer
Annex
A Survey of Modern Constitutional Provisions Concerning Political Parties
The detailed provisions concerning political parties in the Constitutions of Germany, Portugal, Spain and Greece are of special interest to lawyers who wish to study the problems of political parties in the context of comparative constitutional law.
Article 21, Section 1, first sentence, of the German Constitution provides that political parties shall participate in forming the political will of the people. Article 21, Section 1, second sentence, provides that political parties can be freely formed; this provision means that political parties may be established without permission of any kind.
Article 21, Section 1, third sentence, of the German Constitution provides that the internal organization of political parties must conform to democratic principles. This means, at the least, that the basic decisions must be made by the party members or their representatives, that the party leaders must be elected periodically, and that, within the party, opposition to the party leaders must be given a fair chance.
Article 21, Section 1, fourth sentence, of the German Constitution provides that political parties must publicly account for the sources of their funds. Under the German Legislative Act concerning Political Parties all political parties must submit their annual accounts to the President of the German Parliament, who makes information on such accounts available to the general public by way of parliamentary publications.
Article 21, Section 2, of the German Constitution provides that political parties which, according to their aims and the behaviour of their members, seek to impair or abolish the free and democratic basic order or to jeopardize the existence of the Federal Republic of Germany, shall be unconstitutional. Furthermore, Article 21, Section 2, provides that the Federal Constitutional Court of Germany shall decide on the question of unconstitutionality.
Article 10, Section 2, of the Portuguese Constitution provides that the political parties shall contribute to the organization and expression of the will of the people and shall respect the principles of national independence and political democracy.
Article 51, Section 1, of the Portuguese Constitution provides that freedom of association shall include the right to establish or join political parties and through them to work democratically to give form to the will of the people and to organize political power. Article 51, Section 2, of the Portuguese Constitution provides that no one shall be a member of more than one political party at the same time, and that no one shall be deprived of the exercise of any right because of membership, or cessation of membership, of a lawfully constituted political party. Article 51, Section 3, of the Portuguese Constitution provides that, without prejudice to the philosophy or ideology inspiring their programmes, political parties shall not use names that contain terms directly related to any religion or church or use emblems which may be mistaken for national or religious symbols.
The question of political parties’ access to the media is dealt with at some length in Article 40 of the Portuguese Constitution. Article 40, Section 1, provides that political parties shall have the right to broadcasting time on radio and television in keeping with their representativeness.
Article 40, Section 2, provides that political parties represented in the Portuguese Parliament which do not belong to the Government shall have the right, in accordance with the law, to space in journalistic publications belonging to public bodies or dependent on them, to broadcasting time on radio and television in keeping with their representativeness, and to the right of reply, in the said media, to the Government’s political statements. The space and broadcasting time accorded to political parties under this provision shall be the same as those granted to the Government. Article 40, Section 3, provides that in election periods the competing political parties shall have the right to regular broadcasting time, fairly apportioned, on radio and television.
Article 117, Section 1, of the Portuguese Constitution provides that political parties shall participate in the Parliament and in other institutions based on direct universal suffrage, in accordance with their democratic representativeness. Article 117, Section 2, of the Portuguese Constitution provides that minorities shall have the right of democratic opposition in accordance with the basic principles of the Constitution. Article 117, Section 3, of the Portuguese Constitution provides that political parties represented in the Parliament which do not belong to the Government shall have the right to be informed, regularly and directly, by the Government on the progress of the main matters of public interest.
Article 6, first sentence, of the Spanish Constitution states that political parties express the democratic pluralism, assist in the formulation and manifestation of the popular will and are a basic instrument for political participation. Article 6, second sentence, of the Spanish Constitution provides that the creation of political parties and the exercise of their activity are free, within the limits set by the fact that all political parties must respect the Constitution and the laws in general. Article 6, third sentence, of the Spanish Constitution provides that the internal structure and functioning of political parties must be democratic.
Article 29, Section 1, of the Greek Constitution provides that Greek citizens possessing the right to vote may freely found and join political parties, the organization of which must serve the free functioning of democratic government. It is added that Greek citizens who have not yet acquired the right to vote may participate in youth sections of political parties.
Article 29, Section 2, of the Greek Constitution provides that rules concerning the financial support of political parties by the State, and rules concerning the publicity of electoral expenses of political parties may be laid down by Statute. While Article 29, Section 2, of the Greek Constitution only speaks of the publicity of electoral expenses, the Legislative Act concerning such matters lays down rules both regarding the publicity of electoral expenses and regarding the publicity of other kinds of expenditure on the part of political parties.
Article 29, Section 3, of the Greek Constitution provides that manifestations of any nature in favour of political parties are absolutely prohibited to members of the judiciary, the military in general, members of the security corps and civil servants. This means that persons belonging to the said categories are not only excluded from membership, but also that the indirect support of political parties on their part is forbidden. Moreover, Article 29, Section 3, expands its scope to employees of public corporations, public enterprises and local government agencies, decreeing that persons belonging to these categories may not participate in operative activities in favour of political parties.
It may be mentioned that the Danish Constitution contains a provision which points in the opposite direction of that of Article 29, Section 3, of the Greek Constitution. Article 30, Section 2, of the Danish Constitution provides that civil servants who are elected members of the Danish Parliament shall not require permission from the Government to accept their election. It is generally agreed that this provision implies that Danish civil servants enjoy all kinds of political rights, including the right to support a political party, both as active members and as sympathizing outsiders.