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Jüri Adams, one of the creators of the Estonian Constitution and a multiple-term member of the Riigikogu, writes about the significance of oaths of office and their connection to the constitution.
The constitution does not actually require ministers to take an oath; paragraph 91 refers to the oath in connection with the government as a whole taking office. Nevertheless, it is logical that when a new person joins the government, they should at least align themselves with the oath previously taken by others.
The more important questions concern what the term «oath of office» actually means in this context and what the content of such an oath should be. It cannot be an oath in the same sense as that taken by doctors. It is not a membership oath of an organization either, as generally, internal oaths should cover three topics: what must be done, what must not be done, and how much internal matters can be disclosed externally.
Oaths related to holding public office can be legally divided into two types. One type is service oaths, such as those in the military. Taking the oath changes the legal status of the person, giving them new obligations, removing some old rights, and granting some new ones. For example, some criminal penalties are different (in Estonia, this is the case only during wartime).
The other type is general loyalty oaths, historically often directed at the reigning monarch. The act of taking such an oath does not itself impose any new obligations or rights on the person.
In summary, the oaths taken by ministers (of the government, as well as similar oaths taken by members of the Riigikogu, and the president, for which there is a precise text in the constitution, see § 81), are typical loyalty oaths that do not grant the person any additional rights or obligations. Other public officials (excluding the said 117 people) are not required to take such oaths. The purpose of these oaths is to draw attention to the appointment of new individuals to these 117 high-ranking public positions. In state practice, the moment of taking the oath seems to have acquired the meaning of marking the start of the corresponding position.
The idea and precedent for these oaths required by the constitution come from the 1938 constitution, where the corresponding term was «solemn promise.» For example, subsection 1 of § 51 reads: «On entering into office the members of the Government of the Republic give the President of the Republic a solemn promise to maintain without fail the Constitution and the laws and to carry out their duties faithfully and impartially.»
In the draft that served as the basis for the work of the Constitutional Assembly, authored by Jüri Adams, there was no mention of oaths or pledges. However, these elements, reminiscent of the 1938 constitution, were present in the government's draft (from the working group led by the then minister of justice Jüri Raidla): «The Government of the Republic or its member shall be considered to have assumed office upon taking the oath of office. The oath of office is administered before the Riigikogu by the President of the Republic» (subsection 1 of § 91). Among the members of the assembly there were several individuals who wanted to introduce elements of the draft by Raidla and others, and by September 15, 1991, in the provisional version of the constitution, the oaths were back. I also accepted this. The issue of oaths was not considered very important in the assembly. There were plenty of more significant matters to argue and fight over.
Even now, over 30 years later, I am of the same opinion that the issue of oaths should not be in the text of the constitution at all. If oaths are considered necessary in the state, they could be established in other ways. It is not sensible to lengthen the text of the constitution with such a relatively insignificant matter.
Before 1938, such oaths were not known in independent Estonia, not were they included in modern constitutions of that time, as far as I know. Why and how did they become part of our system?
Unfortunately, we do not have a scientific account of how the draft of the 1938 constitution was created. I have developed a theory that regardless of any examples or recommendations that may have come from elsewhere, the conviction of the necessity of oaths of office had already become ingrained in the thoughts of Konstantin Päts almost 30 years earlier, specifically in 1906 when, being in exile in Finland, he translated into Estonian a book by Franz Lieber, a German-Jewish-American legal scholar, titled «On Civil Liberty and Self-Government» (published in St. Petersburg in 1908, now extremely rare and almost unknown). Explaining this in detail, however, would require a longer separate article.
The political idea behind taking the oath before the Riigikogu should be to inform that a new person is coming to head a specific sector of work. I believe that they should at least be allowed to give a speech.
It is legally important to know the time when a member of the government or parliament takes office. The current practice is based on § 6 of the Government of the Republic Act. The state secretary is present when the oath is taken in the Riigikogu, and it is their responsibility to note the time on the oath document. I believe it is done with precise, minute-by-minute accuracy. The previous minister must be informed of this time, as it marks the end of their official duties (primarily their signing authority).
This is not very sensible. There could be another option regarding the time, but we have never had much confusion about it. However, the way we interpret this aspect of the constitution is quite unreasonable. It continues an unrealistic and rigid approach from the Soviet era.
For every administrative action, there is a general, typical, «normal» way of doing things. But in unusual or exceptional circumstances or with special participants, adjustments should be made as needed.
Constitutional texts are intentionally concise. They outline standard procedures but generally omit exceptions and extraordinary circumstances. However, this does not imply that such cases should not or cannot arise. Life inevitably brings more complex scenarios.
When the parliament is on a summer break, it is not practical to summon them for the appointment of a new minister. It is a different matter if they need to vote on that minister. It would suffice, for example, if the head of state did this (and stood in for the parliament).
If we were to generalize, every issue should incorporate at least some element of what legal jargon refers to as discretion.
Taking the oath in the Riigikogu? It is mostly pointless, lackluster, and embarrassing. The hall buzzes or at least murmurs. The chairperson taps the gavel and demands silence. Someone comes to the podium and mumbles for about 12 seconds. Then they sit down for a few seconds, pen in hand. A photographer might snap a few pictures. That is it.
Such practices should be abolished, if only because they further degrade the state's already poor reputation. Could it be improved?
The political idea behind taking the oath before the Riigikogu should be to inform that a new person is coming to head a specific sector of work. I believe that they should at least be allowed to give a speech. To make statements about how things will proceed. Or perhaps someone else should speak about them beforehand? Or something else to add a bit of ceremony, a little bit of significance.
A new person stepping into a significant ministerial position, let alone an entire new government, is traditionally the kind of change that embassies inform their home countries about. Someone used to be sent to observe the event from the guest balcony of the Riigikogu, and on important occasions, the ambassador would come in person. Must our way of working, combined with sheer boredom, contribute to the extinction of this old tradition?
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