Allar Jõks, Carri Ginter: Constitution defeated a roadroller 1:0

Allar Jõks and Carri Ginter write that although the Government continued to act as if being in a parallel world last year, the year-end gave hope that Riigikogu’s patience is about to run out.

Toompea is attacked. The President has been taken as a hostage by entrepreneurs. As a result of irresponsible acting by the Supreme Court, the balance of the state budget is at risk. Such a view may have opened on the last year’s legislation from the meeting room in Stenbock House. As if a national «programme of positive thinking» was initiated at the Government’s press conference. Be more cheerful!

Our view is much brighter. 2013 saw a sign of small, but joyful changes influencing the quality of power and development of the third sector, i.e. non-profit sector.

In spring 2012, we wrote in Postimees that the Estonian state based on the rule of law requires technical maintenance. At the time of crisis, the legislator had chosen especially harsh roadroller tactics. Hearing channels were closed and those of proceeding the laws with turbo-speed opened.

In the situation of crises, the courts, the President and the general public had a more understanding attitude towards the difficult decisions made in a hurry. This way the value added tax was unconstitutionally increased in 2009 overnight. The entrepreneurs, understanding the difficulty of the situation, submitted almost no compensation claims to the state.

In 2013, the Government continued to act as if being in a parallel world. Juggling with statistics and rankings left an impression that the crises had been overcome successfully. However, drafting the laws was still based on the habits of the time of crises.

In 2012, Professor Ülle Madise wrote in Postimees: «The Estonian Constitution sees the highest value in people, their rights and freedoms – those need to be favoured over expediency.» Such appeals were left with no attention. Knowledge was substituted by a belief that perceived necessity is sufficient to run the state. The decision making mechanism based on delivering the will of an enlightened ruler coming from the top obtains the characteristics of autocracy.

By the Constitution, there is a democratic public order in Estonia. Consequently, certain rules apply in our country that are mandatory to be followed. As much as the activity of Riigikogu, Government, court and President follow the principle of balance, then the interaction between those institutions is not a competition on mutual attraction. Taking one’s duties seriously assumes at least filling the role of a ticket- and quality inspector.

The representatives of authorities do not decide upon their own things nor spend their own money. The wide decision area of Riigikogu does not involve the right to make decisions that are «based on belief», but the obligation to make considered choices. In 2013, the Supreme Court several times marked legislative homework as unsatisfactory for ignoring that fundamental principle.

With the new chairman, the Supreme Court has even more thoroughly checked the conformity of the legislator’s decisions with the Constitution. The Court repealed the restrictions on founding pharmacies, increasing environmental taxes and changes to the State Fees Act. The conclusion that the fundamental rights were violated and there were no necessary analyses passes through all those decisions as a red line.

The restriction on founding pharmacies is a good example, by which it would have been forbidden to open a new pharmacy if statistically there were less than 3000 residents for one general pharmacy. Having made no impact analysis, the legislator was not able to explain to the Supreme Court, how hindering the opening of pharmacy in e.g. Tallinn Airport contributes to an improved availability of pharmacies in rural areas.

The Court also established that there was a contradiction between speedier than allowed increase in environmental taxes and legitimate expectations. Budgetary income cannot be the only objective. Restrictions to fundamental rights cannot be justified by slogans. The state is threatened by almost 5-million claim for refund and 29 m’EUR will not be collected. Without any far-seeing ability, one needs to learn from their experience.

In January 2009, the state fees for turning to the courts were increased by several times to cover the holes in the budget. The Supreme Court was to deem the increased state fees illegal 45 times. The people, whose rights were left unprotected in court due to high state fees, could grant the legal crime award to the decision makers in 2009. Remarkably sad score, but what are the lessons to be learnt?

Year-end gave hope that Riigikogu’s patience is about to run out. During the discussion on the Value-added Tax Act, Riigikogu did not agree with the Government and engaged in a serious debate on the changes. The letter by the Chairman of the Riigikogu to the Prime Minister disapproved the turbo-speed proceedings and raw draft laws. The discussion involved entrepreneurs, who disputed in a loud voice against the changes made based on belief.

Up till recently, it might have seemed to a partaker of the government coalition that disputing with the government is an act that deserves a badge of honour for citizen’s courage. The latest developments give hope that using one’s own head is considered as an obligation which goes with the mandate. The Minister of Finance has expressed the view that “Riigikogu should respect both itself and the government appointed by it and the coalition should not take over the role of the opposition.” First and foremost, Riigikogu has to respect itself and electors.

The usual practice is that drafts are sent to Riigikogu in the last minute and in a demanding tone. From almost 400 valid acts, 73 have their full text renewed that entered into force starting from the new year. 173 acts contain new or amended provisions. On 1 July, amendments are expected to be introduced in 96 acts – but the keyboards are still clattering.

The fact that Riigikogu is re-establishing itself as the government’s discussion partner is indicated by the message by the Minister of Finance: “The Parliament’s self-pride has been offended, it has sometimes determined to prove itself even in case of thoroughly considered government decisions.” It is good that they are publicly admitting that less deliberate decisions have also been sent to Riigikogu.

The fact that the government has noticed Riigikogu’s pressure means that the work is again being done in Toompea castle. It is a good start for a gradual taking back of a lost competence. The parliament has the necessary tools for establishing the order. It is enough to reject the drafts that have quickly been drawn up in the last moment.

There is also an inevitable need to find a way out from the state of hostage where Riigikogu members directly depend on the minister, this through “positions” in the supervisory boards of state enterprises and foundations appointed by the minister. The dependence on the minister makes it harder to be demanding towards the government in legislative drafting. The last year can be described by a situation where the chairman of the supervisory board of SA Kultuurileht that is publishing Sirp is the chairman of Riigikogu’s Cultural Affairs Committee, appointed by the Minister of Culture.

Shall the Cultural Affairs Committee come up with a wish to discuss the responsibility of the Minister of Culture and that of the chairman of the supervisory board of SA Kultuurileht, it would be interesting to observe who reports to whom. As a result of the proposal by the Chancellor of Justice, the parliament promised to remove this contradiction in January 2008. In times of turbo-proceedings, Riigikogu has not kept its promise while six years have passed.

It is extremely hard to find business-favouring decisions in the pile of decisions that damage business environment. Feeling the enterprisers’ pressure, an enterpriser-hostile rhetoric was implemented when Value Added Tax amendments were pushed through. The president emphasised in his decision that enforcing amendments that are not thoroughly considered would damage Estonia’s business environment and reputation. The irritation caused by the president’s decision brought a neologism on the table, “group egoist”, which was quickly put into use as a synonym for “enterpriser”. One doesn’t have to wait long for the bitter fruit of employer-hostile communication.

The influence of the president’s decision is bigger than dispute over additional declaration of value added tax. It is a lesson saying that you cannot play with the president. The president with a social democratic background has to protect the enterprisers from coalition parties of “liberal and enterpriser-friendly worldview”. What could be the enterprisers’ next step?

The people as the carriers of the supreme power of state are the employers of state leaders who, as it is said in a proverb, are prohibited to be lazy. A lazy employer should not be surprised to discover one day that his property has been stolen and hunger has settled down in the house. The last year gave a sign of an increase in cognizance of power. Although defiantly, but still, the Parliament deliberates upon proposals that come from Rahvakogu to increase political competition. Non-governmental organisations were successful in local elections. The pressure by artistic associations made the Minister of Culture back down and the Minister of Finance is forced to justify his actions more than before.

The more demanding the people, the more bravely the guards of constitution do their job and vice versa. Decisive intervention by the Supreme Court, National Audit Office and Chancellor of Justice was indispensable to keep the pharmacy scales of state governing in good balance. With amendments invented on the basis of the basic State Budget Act, it is being tried to subordinate these institutions to the government’s power vertical as well, so that they would no longer endanger the budgetary balance. The Riigikogu voting will be held next week. Who has the courage and mindfulness to thwart this attempt?

Allar Jõks and Carri Ginter are the partners of law firm Sorainen. Jõks is former Chancellor of Justice of the Republic of Estonia. Ginter is Senior Lecturer in European Law, PhD (Tartu University)