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According to thorough legal analysis completed last week the administrative reform violates constitutional rights of local governments in several issues. If Supreme Court sides with the local governments who ordered the analysis, part of the law is likely to be annulled and the reform will not be fully carried out.
The close to 50 pages of legal analysis written under leadership of former justice minister Paul Varul was ordered by the following five local governments: Kambja, Luunja, Nõo and Ülenurme of Tartu County, and Pala of Jõgeva County.
The analysis prepared according to Supreme Court’s own methodology surprised the very parish elders.
Namely, the working group found that an excessive infringement of the Constitution is not only caused by the 5,000 inhabitant lower limit and forced merger of parishes, but also by the unequal merger support paid and the overly short timelines due to hurried procedures.
Conclusion: central power opted for forced measures
Mainly, the analysis is pointed towards the provisions of the Administrative Act that entered into force in July which allow the government to merge parishes by force.
The document states that an unreasonably short time has been prescribed for the forced mergers.
Regarding the 5,000 inhabitant lower limit, the services and the quality thereof to be provided by a local government are still unspecified. Therefore, it is impossible to actually assess whether it takes 5,000 inhabitants for that or not.
Surprisingly, the experts also arrived at the conclusion that it would be unfair not to compensate to local governments which do merge but not voluntarily.
Essentially, it makes no difference whether the merger is voluntary or forced – in both cases, the end result is the same and equal costs are created.
Finally, the analysts say the reform infringes upon legitimate expectations that a local government which meets the requirements will be able to continue in its current shape.
«They have taken the overly simplified approach that we will just do it. But actually the criteria are insufficient. That creates non-permissible intensity,» summarised Mr Varul.
Local government leaders who ordered the analysis say that local councils will not be able to decide during the month of August whether to take these theses to Supreme Court. Other local governments will be able to join in.
Going to court is not an aim in itself – should the government initiate amendment of the law and reviews the above-mentioned provisions, court disputes would not be needed.
Finance ministry begs to differ and claims all is in proportion with the Constitution – despite Chancellor of Justice Ülle Madise having expressed doubts to the tune of the local governments.
Going to get tough
To the knowledge of Postimees, Supreme Court has grasped the urgency of the situation and has internally decided to process the issue during September.
Thus, a decision may come before October 1st which is the voluntary merger deadline. If Supreme Court declares the above as unconstitutional, parishes can opt out of forced mergers.
At finance ministry, they think such parishes may be about a dozen.
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Administrative reform timetable
July 1st 2016 – the act entered into force
October 1st 2016 – local governments currently not conformable to criteria must enter voluntary merger negotiations
January 1st 2017 – councils of parishes to merge must file applications to county governors
January 1st 2017 – government initiates a half-year process to prepare forced mergers
February 1st 2017 – government confirms voluntary mergers
February 15th 2017 – government presents vision of forced mergers for local governments to voice their opinions
May 15th 2017 – deadline for local governments to give their answer
October 15th 2017 – by local elections, all merger decisions enter into force and new local governments come into being