Officials must solve problems, not process them

Õiguskantsler Ülle Madise.

PHOTO: Mihkel Maripuu

Some officials prefer to process people’s problems instead of solving them, Chancellor of Justice Ülle Madise says, referring to a problem with a family’s polluted well water. This kind of behavior cannot be excused through fear of creating a precedent of helping people.

What lies at the heart of the case of the glowing well water, with state agencies pointing the finger at each other? Do we have too much bureaucracy in a situation where two agencies cannot agree on who should help people?

It is difficult to say when officials lost the will and courage to make decisions. Still, I would refrain from making a generalization as public servants are not all the same. We also have very positive examples; for example, when an official went above and beyond to correct the address of a pensioner living alone in a database so they could qualify for benefits. Or when problems of disabled children have been solved with the help of a little creativity.

Unfortunately, there are also negative examples, such as the case of the glowing water. Officials do not prioritize solving a person’s problem and instead try to process the problem out their door. Say that it is not their area. A person does not have to know which agency is responsible for what exactly. We need the institution of justice chancellor to remind people of this fact. Ascertaining the specifics of this case and solving it is the responsibility of the environmental board, the environmental inspectorate and probably also the local government. Every link in this chain has a part to play, and simply saying that you cannot do it alone is no excuse. It is often the case that a single agency cannot solve a problem by itself. However, it is possible to take initiative, to be relentless and work until the matter is solved.

You said it is difficult to say where officials lost their courage. They must follow the law; what room is there for courage? The law does not entertain creative solutions.

On the contrary. The constitution states that a person’s problem needs to be solved in whichever legal way as quickly and as thoroughly as possible. In the case of the impure well water, legislation exists and is clear enough for a solution to be found, potential polluters called to order and the well fixed.

I have heard it said that the problem at Kassinurme farm cannot be solved through legal channels because it will open the door to other people demanding a new well on the taxpayer’s dime. If the state cannot stop pollution of groundwater, it is obligated to help other people too, provided their claims are just – naturally. If someone knowingly ruins their water, builds a septic tank improperly, it is something that can be ascertained, and in that case, the person will not be compensated.

We have heard the same story elsewhere.

When an Abkhazian Estonian is given citizenship…

Exactly. The law needs to be followed with one’s face turned toward the person. If another person has the right to the same benefit, it needs to be given to them. And if there are people who poison their own wells or file falsified documents, the state must have the capacity to investigate these matters and say “no” where necessary.

Therefore, the argument “perhaps others will want something too” does not fly in my book.

On the one hand, some officials seem to lack courage, while on the other, we have politicians who say officials are running the country and keeping politicians from doing good things. Is ours a country of officials?

Officials are people. I have worked in the public sphere for 22 years, and it is my experience that most people want to do their work well and be praised for it. However, those who fail to do their duty in representing the people of Estonia stand out.

The first type is an official who fails to do their work because they are a yes man or woman. All they do is cheer a politician’s unconstitutional or harmful decisions. It is the duty of a public servant to tell their minister when their plans are unconstitutional, but that it is possible to achieve political goals another way. An official cannot function like a politician and must instead support politicians who have been given a mandate at elections by helping them find workable solutions.

Then there are officials who use their position to further personal agendas or ideology by deeming unconstitutional things that aren’t. Or by saying that certain things cannot be solved this way because then others will also want it.

The third group is made up of officials who would like to work but have been put in a very small box by past models of performance management. This takes away people’s courage to make mistakes while wanting the best result. If an official has tried to do their best, for example, by turning to rarely used norms in tax law, only to have the administrative court rule against them, they do not deserve to be punished. Officials need to be punished when they knowingly fail to do their work.

The team of the justice chancellor’s office knows that officials can be talked to and made to understand that problems needs to be solved, not processed.

Politicians are elected every four years, and they have to promise innovation and change at elections. Officials tend to hold the line longer. Stability is also a virtue.

Talking about Estonia’s place on the international arena, maintaining stability is indeed very sensible. No matter who is in power or how fierce the debate between interest groups, I would urge people to keep arguments in-house while maintaining the image of a small, honest, smart and law-abiding country that avoids ill-considered moves. Here, stability is definitely a virtue.

The same goes for national defense.

When talking about preparedness for change inside the country, people sometimes want to change things that aren’t broken. Because they are easy to change. But we tend to give up on things the people really care about, things on which Estonia’s fate depends. So, I would like to see less cosmetics. A lot of energy has been spent on making things look a certain way without it being of any real use.

We need reform when it comes to labor and social guarantees, enterprise support. I recently attended a lecture by an economist who said that it would be best if we had a lot of entrepreneurs willing to take risks because that is what translates into prosperity. It is important for people to be able to make a living working.

When it comes to human rights, the main problem is deprivation in the broadest sense.

The threat of sending heads of judges rolling was repeated recently – after the Supreme Court ruled that a couple who had entered into a registered partnership agreement abroad have the right to live together in Estonia. There are those who believe the court took on the role of legislator there.

The court made the only possible decision. We know that the Estonian registered partnership act is broken. There was no reason to separate its implementing provisions. Most decisions needed for the implementation of the act do not require a parliamentary majority. There was no need to allow social tensions to persist. But the act being broken is not the court’s fault.

According to the State Gazette, the registered partnership act is in force and is obligatory for all notaries, officials and judges. Gaps in the law need to be filled based on the constitution. The theory in Estonian constitutional law on how to give meaning to the concepts of marriage, partnership and family is based partly on the human rights court but also on international studies.

The rights of people who share a household and have strong feelings for each other need to be protected. Estonia has adopted this obligation, and it is there in the spirit of the constitution. No other ruling could have been made.

If one does not like the court’s decision, one needs to amend legislation. We cannot blame judges for doing their job.

Regardless, there are probably a lot of people who feel that Riigikogu makes laws only for them to be appealed in the Supreme Court and for the latter to decide matters instead of the parliament in the end.

Luckily, Estonia has not gone down that path. There are rulings I would challenge, but thankfully, they number few. As long as the legal side of rulings can be criticized in legal press, as long as Estonia has freedom of the press and freedom of expression, I’m not afraid of the system being politicized. Our system is open enough.

But there are countries where courts are politicized, and I would not recommend trying it. A professional and independent court the authority of which is respected benefits everyone.

Everyone has the right to present their arguments of why they feel a different ruling would have been in order. However, attacks against the courts as an institution and against individual judges are inadmissible. Judges must go through a probationary period, carry disciplinary responsibility and can be prosecuted for knowingly making illegal decisions. They supervise each other and are supervised to some extent by the justice minister and the justice chancellor.

Attacking institutions has a long history as an underhanded political device. I started noticing it for the first time thanks to an American professor some 20 years ago. Both abroad and already in Estonia at the time. The professor said how going after state institutions is a dirty political trick. Attacking courts, the press, elections in order to gain cheap popularity and attention. Some believe it helps politicians explain to voters why election results fail to reflect the popularity they boasted of previously.

There is no remedy here other than making sure elections, the press and courts are highly professional and independent and come off as such.

Do you feel there are dark alleys in how legislation is born in Estonia? That we do not know the source of certain ideas, initiatives and sometimes even first drafts of bills.

We cannot tolerate that part which remains opaque.

In our work, we sometimes see draft legislation go into its second reading having been complemented by a fundamental package of changes. One that turns things upside down and introduces entirely new aspects that were not discussed during the first reading.

For example, we noticed how the implementation act of data protection legislation wanted the prisons board to be given the right to assemble a massive database of people’s personal information.

Another famous case is that of generous renewable energy fees that create legitimate expectations for companies on the taxpayer’s dime for a very long time.

When people later ask where it all came from, they are answered with a shrug.

Another dark alley is when ministries order seemingly independent analyses and expert opinions to support a political position. It makes for a very interesting topic.

The third is procurement of bills. EU subsidies have been used to take a lot of money to different corners of the private sector only to get in return something the agency that ordered it cannot justify or explain.

Outside analyses are often used to hide motive, actual interest groups.

A solution exists here too: the decision-making process needs to be transparent and power cannot reside in the hands of only a few; a strong civil society and free press will out these things.

Should we have clear lobbying rules, so everyone would know who met with whom in the Riigikogu or the government?

We should look at experience of other countries first. Experience, not legislation. While we could draw a legislative line in the sand, it would be quite useless in Estonia. It has its charm that we’re together in everything – the same choir, children in the same kindergarten, neighbors or classmates.

If someone wants to approach a minister or a high-ranking official to try and sell them an idea, they will find a way – whether we have a law for it or not. What we should have is conscience and honor. You can hear people out, but you need to tell them you will proceed based on what you’ve been tasked with, search for the best solution for everyone.

Do minorities require more protection than they did a few years ago?

As a scientist, I cannot answer that without analysis. Some things have perhaps been taken too far and not just here. Looking at what Der Spiegel, Economist, Frankfurter Allgemeine write. Identity politics and excessive political correctness had to produce a reaction. If you keep telling people what they can say, think and feel, they will riot eventually. You cannot change convictions by force or through legislative means. You can at best outgrow them.

We need to accept that we are imperfect, while never giving up on goodness and honesty.

When people are different, belong to a minority – luckily, all our parties are minorities, none of them have absolute majority – you might not subscribe to their worldview, but you do not have to be inhuman and nasty to those who do.

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