TARMO PIKNER ⟩ The Estonian Constitution requires amendment

The Riigi Teataja gazette, which contains the text of the Constitution adopted in a referendum on June 28, 1992. Photo: Harald Leppikson / National Archives Film Archive Photo: Harald Leppikson/Rahvusarhiivi filmiarhiiv

• The people want changes, but instead receive accusations of whining and crying from state leaders.
• Section 62 of the Constitution is restrictive – a member of the Riigikogu is not bound by mandate.
• Election lists at the polling station should be fully verifiable before and after the elections.

In a situation where, not long ago, 67 percent of people wanted the resignation of Prime Minister Kaja Kallas, those involved only shrug their shoulders – nothing can be changed, live on! Or let us die then, as Ene Kallas found in Postimees. According to the Constitution, the highest power is held by the people, and the people have spoken – this kind of governance is not wanted, writes columnist Tarmo Pikner.

The people want changes, but instead receive accusations of whining and crying from state leaders. All that is left to do is to open and close one’s mouth. The president may make a mean face, but that does not help either.

The question of organizing an extraordinary general election could, no – it should be put to a referendum, but there is no such possibility in practice, I emphasize – in practice. And if one were to desire help from the Supreme Court, which is usually also considered to be a constitutional court (which it is not), what happens is that the matter is not discussed in substance (cases of e-voting and Riigikogu obstruction). The decision of the Supreme Court will be selected, if necessary, from a list as is seen fit – either the deadline for filing an appeal has been exceeded, it is not within our competence, or legally everything is correct.

I am inclined to believe that if the president had appeared before the Riigikogu five times in a row and said – disperse yourselves, because the people do not want the policies of the government set up by you – perhaps the conscience of 51 MPs would have awakened. Anyway, in reality we need levers with which the people can exercise their power. This cannot be done with the current Constitution, no matter how resoundingly the opposite sentence is written in the Constitution.

We live in the times of a fourth Constitution. The 1920 Constitution was laconic, parliament-centric and one of the most democratic of that time. It was even so liberal that it allowed the communist Johannes Jürna to put the proposal that Estonia should start negotiations to join the USSR to a vote in the Riigikogu on May 31, 1924. Not to mention the coup plotter Viktor Kingissepp's "participation in the work of the Riigikogu" by giving written instructions from Moscow to the communist group in parliament, while negotiating with Interior Minister Aleksander Oinas, who also provided shelter to the coup plotter.

The 1933 Constitution (that of the so-called freedom fighters) was adopted by referendum and was more centered on the executive power. The Constitution adopted by the National Assembly in 1937 was aimed at the paths of authoritarian state governance, which partially reflected the situation in Europe more broadly, but mainly due to the overly liberal signs mentioned above.

The question of organizing an extraordinary general election could, no – it should be put to a referendum, but there is no such possibility in practice.

The 1992 Constitution ended up being a combination of the previous constitutions, while giving the president too big of a slice from the pie of power was carefully avoided. Of course, this was the [Konstantin – ed.] Päts syndrome, because the latter bit into the entire pie and gobbled up the country back in the day. This is where politicians' obstinate opposition to direct presidential elections comes from. But hasn't the world changed since then? Or has it gone back to something that is similar to that time?

There have been debates about the repair of the Constitution, but its authors have always managed to direct the debates to the bed of Procrustes. That the Riigikogu would come up with the idea of modernizing the Constitution – good luck finding the naive ones who will start restricting their own power. Since this format does not enable a thorough analysis of the Constitution, I will only discuss some of the glaring contradictions in our Constitution.

Let us first look at section 60 of the Constitution, where questions contradictory to reality are raised by the clause: every Estonian citizen who has attained 21 years of age and has the right to vote may be a candidate for the Riigikogu. Yes, legally, but in reality, I, for example, cannot, because I am not a party member.

You say: run as an individual candidate. Yes, but has anyone succeeded in 33 years? No. This is not possible due to the too high threshold for being elected, because an individual candidate and a candidate on a party list, whose election depends on the votes of the entire list, are in an unequal situation.

Then you recommend running as a partyless candidate on a party list? Yes, but not all political parties accept non-party members on their list. This means this clause of the Constitution does not work to its full extent and this is discrimination, in which representatives of the partyless bloc (individual candidate) are in a disadvantageous situation compared to party members (candidate from a party list). At this point, it should be mentioned that there is only one party ("partei") in Estonia – the Left Party, the rest are called "erakond"*, and everyone knows why – due to Soviet baggage, people do not dare to use the term «party member».

Section 62 of the Constitution is strikingly inhibiting – a member of the Riigikogu is not bound by a mandate. They cannot be recalled, which also does not enable the calling of extraordinary elections, which is possible in other democracies. In reality, it is the party, not the people, that gives the mandate here with the drawing up of election lists.

The Riigikogu's second-largest group, which is those sitting by the windows, has been formed as a result of party politics, not by the will of the people. 101 smart people have been nailed to the chairs of the Riigikogu for four years – this is not a guarantee of stability, but a waste of resources and hindering of develoment that has developed in practice.

The fact that state power is exercised in the form of representative democracy through political parties has not been written in this way in the Constitution. In practice, the state is maintaining the parliamentary parties in the extent of about a third. In theory, however, it may happen that the state allocation makes up 100 percent of the party's income (if the membership fee is not mandatory and there are no donations).

Here, one could talk about the possibility in which the state, with its political parties, is governing itself. According to the election law, Riigikogu elections are held through political parties under their name. In theory, this is not the only possible path. One alternative would be electoral coalitions. But we could also go back to the roots – down the path of direct democracy (for example, Switzerland). After all, by now, democracy has so many different faces that it is often not recognized. Direct democracy could be implemented at least in the period between elections in combination with representative democracy. In the case of our small country with a one-level municipal system (compared to 4.5 levels in France, for example), this would be easily implemented. I am inclined to believe that state governance needs to be spelled out more clearly in the Constitution.

Next, let's see what section 60 stipulates about elections. In part, it has been automatically copied from the constitution of the USSR, which states: «The election of deputies... is carried out by secret ballot on the basis of universal, uniform and direct suffrage». The Constitution of the Republic of Estonia: «Elections shall be general, uniform and direct. Voting shall be secret.» Even the order of terms is the same. It is true that there were no e-elections when our Constitution was drafted, so perhaps there was no need to delve into the meaning of the terms. But now there are e-elections, soon also m-elections, which is why there is a contradiction in the Constitution – elections are not uniform in the slightest.

It makes me laugh (in reality, it makes me cry) how smart people try to explain that voting with a ballot in a polling station is one and the same (uniform) as e-voting from a computer in any corner of the world and soon also from any Chinese mobile phone. I would like to know how many grades one needs to pass in school to achieve this knowledge? In one case, the ballot goes into a transparent box in the polling station, in the other case into a black box, into which no one, including the Supreme Court, has ever seen. The election lists at the polling station should be fully verifiable before and after the election.

The fact that state power is exercised in the form of representative democracy through political parties has not been written in this way in the Constitution.

The younger Terras [Hendrik Johannes Terras – ed.] says that electronic voting is a convenience and Estonia is the flagship in this field. Do we want to build a country with a flag of convenience, like the ships that fly the flag of Panama are created? I think that it is not very difficult for any Estonian who cares about the country to walk to the polling station once every four years. And more about the uniformity of elections – we have election day, preliminary voting, the possibility of voting in all polling stations and only in one’s place of residence, by letter and by having the ballot box brought to one’s home. Quite a long list of how everything is seemingly «uniform».

In order to justify e-elections, claims are made that participation in elections must be increased. I ask – why? Chasing that percentage dates back to the Soviet era. Voting is not compulsory (in some countries it is) and not voting is also a choice. If, on average, one third of eligible voters do not go to the polls, why do they have to be enticed-nudged-forced to vote if they are not interested in it?

These people can likely handle any type of governance and nudging them to vote only muddies the overall picture, as it is likely they will choose randomly, or worse, by compulsion (if they are nudged too much). However, one of the most unpleasant ways of nudging is portraits the size of an apartment building in a public space (when I go to the Tallinn Bus Station, I look with fear to see if the picture of a lovely lady is still hanging there). I have never seen posters with electable faces larger than an A3 sheet of paper anywhere in the world.

The next sacrificial lamb is the possibility, or rather the impossibility, of a referendum. Section 56 of the Constitution states: supreme power shall be exercised by the people through citizens with the right to vote by electing the Riigikogu and through referendums. The parliament has the right to put a bill to a referendum. But this is the same body that has put together, for example, a non-functioning government, and if it cannot or does not want to replace it under normal circumstances, why should the Riigikogu initiate its own dissolution?

The people wanted extraordinary elections, because the government had been put on hold (the deployment of the prime minister). Now a switch has been made from a break to squeezing people (tax festival) and the citizens' problems are being ridiculed. But the people cannot bring about changes. Why? Well, read the Constitution carefully!

The above is only a brief analysis of three sections of the Constitution. What other contradictions may be found in the remaining 165 in the current changed circumstances? You say that additions (shortcomings?) can be regulated by lower-level laws. But can they really? And is there a will to do so? And if another composition of the Riigikogu comes, it can reverse the unsuitable law. Therefore, fundamental issues should be regulated in the Constitution unambiguously and clearly, so as not to enable the Supreme Court syndrome.

*In the Estonian language, there are two words for «party» – «partei» and «erakond», with the latter term used in the names of most current political parties in Estonia.