A new constitution for Estonia

Posted: August 29th, 2011 | Author: | Filed under: Estonia, european union, human rights, law, philosophy, politics, thoughts | 1 Comment »

I do not agree with those who say that Estonia’s current constitution is great for us and nothing should be changed. I think the opposite is true: a new, modern constitution would give more confidence and stability in the otherwise rapidly changing times. A new constitution that is made not out of necessity, but as an opportunity to kickstart Estonia’s development.

The constitution was drafted in almost 20 years ago, in a completly different set of circumstances. Accession to the EU was not on anyone’s minds (nor did the EU exist in its today’s form), the understanding and content of several human rights provisions have been altered, etc. The world around us has changed, and Estonia has changed even more dramatically.

The Estonian constitution has been for me, and I suspect for most Estonians, the most fundamental basis for the existence of the Estonian state. I cannot really remember the first time I read it, but it was during school, and I think it was one of the things that made me decide to study law, instead of anything else. The constitution sets out clearly and powerfully why we have the state and what it does. I was most impressed with the Bill of Rights section, which I thought was a brilliant thing to have. Indeed, I was not and am still not so much interested in the institutions the constitution created, but rather the principles it provides.

Estonia is a part of the EU and this is not reflected well in the constitution. The constitution suffered its heaviest blow with the 2004 Amendment Act and its subsequent interpretation by the Estonian Supreme Court. Today, it is no longer clear to which extent the constitution applies in case it is in conflict with an EU legal act. A new Constitution should state more clearly and confidently the basis according to which Estonia belongs to the EU, and not only that, but the way it operates in today’s multilevel governance framework. This not only applies to the EU level, but also to the relationship between the state level and local governments. The latter subject (i.e. local government functions and their financing) have been one of the most contentious issues in Estonian politics for a long time. Therefore my first proposal would be to describe in a chapter the role of the Estonian state in this framework. The current constitution largely ignores the fact that governance is no longer limited to a single state entity, but is much larger concept.

The Bill of Rights needs updating. There have been many changes in recent decades in the understanding and development of human rights, including for example data protection rights. The family rights section should also be expanded to be more clearly inclusive of all types of relationships. For example, although the current constitution does not prohibit same-sex marriages, these relationships should be more clearly protected. A good, but not perfect, example could be found in the EU’s Charter of Fundamental Rights.

The provisions relating to the nation state should be reviewed. The constitution contradicts itself by providing those who are of Estonian nationality preferential treatment. The preservation of the Estonian nation in the preamble is one of the things that should go, and better protection be afforded to minorities. Multiple citizenship should be clarified in the constitution, the current blanket ban is unfair and dumb. The constitution would provide an opportunity for a truly new societal agreement to involve in the governance of the state also those who have been left out so far (ethnic Russians and other marginalised minorities) and move Estonia forward in the democratic path.

A few other things that I would also rather see changed:

1. Abolish compulsory military service. It has no place in today’s society: it serves no legitimate defence need and is burdensome for the individuals from the liberty perspective as well as the society as a whole.

2. Add innovative  things that pave the way for success, for example the right to access to Internet and the principle of Open Data.

The rules that govern us determine where we go as a society. I think there should be more discussion in Estonia on the most fundamental of these rules, especially on the eve of the 20th anniversary of the Estonian constitution next year. Let’s face it: the current constitution and life in Estonia today have grown apart and need to be re-aligned. Otherwise we will see in future more and more incredible feats of teleological interpretation, which interpret a clause in the constitution to say the exact opposite of its text and that is not good.

One Comment on “A new constitution for Estonia”

  1. 1 Gerd Tarand said at 23:52 on August 29th, 2011:

    Agreed, in all points btw.

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