My take on the von der Leyen Commission

Posted: September 12th, 2019 | Author: | Filed under: european union, human rights, politics | No Comments »

I have followed EU law and politics for two decades. First, as a participant in the European Youth Parliament, then as a student of EU law and for the past decade as a lecturer of EU law.

During this time I have seen (from a closer or farther distance) the Prodi, two Barroso and the Juncker Commissions. Even though the 2009 Lisbon Treaty did not change much in the functioning of the Commission, the role and composition of the Commission has been fundamentally transformed. The Prodi Commission was the most representative of the traditional civil service oriented body that followed the letter of the law, somewhat hampered by the relative weakness of the Commission President. Barroso, although becoming more presidential, followed with a more or less traditional approach as well, even though his second Commission took office with the coming into force of the Lisbon Treaty.

The greatest shift in the work of the Commission happened with Juncker Commission in 2014. The Commission President had become quasi(or faux)-elected as a result of the Spitzenkanditaten process promoted by the two dominant political party groups EPP and S&D. This meant that the work of the Commission became more political, and also more strategic. It can be argued that this is a slight departure from the role of the “guardian of the treaties.” However, it can also be seen as taking a larger role in the future of the EU, by strategically leveraging its role. In any case, the Commission work became much more political, with decisions to start or not start infringement proceedings more and more politically motivated.

Perhaps this was inevitable, because during the financial crisis the Commission had been sidelined somewhat and it needed to regain its relevance. Juncker not only reasserted himself and the Commission during the migration “crisis” with the quota system, but also with using EU funds for large investments bearing his name and many other ways.

The Juncker Commission also started to shift the work of the College of Commissioners (which had grown to 28) into teams that work under a specific Vice President. Under the original Lisbon Treaty, the Commission was never meant to be so large (a rotating system was foreseen), but to placate the Irish and so enable a second referendum there over the Lisbon Treaty, it was decided to keep to the “one Commissioner per Member State” principle. The incoming von der Leyen Commission takes the shift to a more team based College to an another level.

It could be argued that this is not fully compatible with the original meaning of the treaties, which foresee Commissioners being equals, with the President “primus inter pares”. Now we have not only the President, but three Executive Vice-Presidents, five Vice-Presidents and other Commissioners. With the exception of the Commission President and the High Representative (who has a dual role, also chairing the Foreign Affairs Council in the Council of Ministers), none of these roles are foreseen in the treaties. However, given that the Commission President has under the treaties a broad power to organise the work of the Commission, and the actual voting in the College remains the same as in the treaties, it is probably not so problematic. This flexibility is also necessary practically to coordinate the work of 27.

There is much to like about the new set-up of the Commission. Each of the Executive Vice-Presidents also retain a control over a key policy area and also are supported by a DG. Frans Timmermans has the Climate Action Directorate-General, Margrethe Vestager DG Competition (probably the most powerful DG in terms of competence and impact) and Valdis Dobrovskis DG FISMA. This solves the issue in the Juncker Commission that the supposedly powerful Vice-Presidents always had to rely on other Commissioners (with actual DGs supporting them) to get any work done. The problem of not having a DG still remains for the four non-Executive Vice-Presidents (the HR has the EEAS).

I also like the Missions-oriented titles of the teams, although these have been called confusing. “European Green Deal,” “Europe Fit for the Digital Age,” “an Economy that Works for People,” “A Stronger Europe in the World” are easy to understand both in terms of purpose and the goal. The “Values and Transparency” and “Democracy and Demography” missions are somewhat vaguely worded, and could have used also a more activity-oriented approach. “Interinstitutional Relations and Foresight” is related to administration and as such fine. However, the tone-deaf and xenophobic “Protecting our European Way of Life” title for Margaritis Schinas will probably need to be changed. Whether intentional or not, the adoption of the far-right narrative (coming from the influence the far right has had within the EPP) is a serious misstep.

In terms of working on human rights, there are a number of portfolios that are important. Already mentioned and not so well named “Values and Transparency” VP includes work on rule of law issues, accession to the European Convention on Human Rights and monitoring the application of the Charter of Fundamental Rights (in addition to improving democratic functioning of the EU). The post is going to Vĕra Jourová, the current Justice Commissioner.

The other Commissioners that have signficant portfolios relating to human rights are the Justice Commissioner Didier Reynders who will work under Jourová and is also in charge of DG Justice and Consumers. Equality gets its own Commissioner (something that I have argued should also be the case in governments, because of its cross-cutting nature), with Malta’s Helena Dalli taking the post. She has achieved remarkable progress in equality and human rights in Malta, so even if tasks given to her are not very many and more gender equality oriented (and notably exclude any reference to specific LGBTI related action), I am quite confident she will fill the new role well and get things done. There will not be a separate DG for her work, but she will be supported by “a task force of experts” and DG JUST.

Aging and children’s rights are also handled by the VP “Democracy and Demography”, which might create some overlap. The “Democracy and Demography” VP will be supported by DG COMM, which means its main role is related to democratic developments and communication.

The migration and asylum issues will be handled by the renamed VP Schinas and Home Affairs Commissioner Ylva Johansson from Sweden who is in charge of DG HOME, which is actually not so bad news at all and creates hope for a more human rights compliant asylum and migration policy in the EU.

The image von der Leyen wants to project is an agile, modern Commission. The first female Commission President is a historically hugely significant. The gender balance she has achieved should be celebrated by all Europeans, this was not an easy task at all and already makes the Commission most representative ever (even though it remains an all White group).

It remains to be seen whether the reforms are superficial and only related to the projected image. The missions-oriented teams are a step forward from Juncker Commission. Going paperless and cutting red tape are less substantive reforms, but also aim to project the modern image. The gender balance itself will not improve much unless they also bring into the College and advocate for feminist policies.

Overall the von der Leyen Commission looks very positive, but it is not going to be easy because of the European Parliament being more fragmented and only narrowly supporting her nomination, and more Member State governments becoming corrupted with anti-democratic far right politicians. Juncker failed to stop Orban and allowed his influence to contaminate the EPP, which created many problems for the EU as a whole. Let’s hope von der Leyen does better, because these are critical times for the European Union.


The trouble with Internet voting in Estonia

Posted: February 27th, 2019 | Author: | Filed under: elections, Estonia, human rights, politics, technology, thoughts | No Comments »

Voting in the national elections online sounds like a fantastic idea. No more wasting time at polling stations, it is quick and easy and makes voting accessible. In Estonia it has become so popular, that more than 30% of voting population (so likely more than half of all voters) have already voted before the actual polling day on Sunday, 3 March. Out of ca 900 000 eligible voters, ca 200 000 will have done this electronically using Internet voting. Internet voting ends this evening, i.e. 4 days before polling day. During the seven day internet voting period one can change one’s vote electronically numerous times, but you cannot change it or vote on the polling day.

Estonia is the only country in the world that uses Internet voting for parliamentary elections. Estonian government and tech elites promote it as a success story for making voting easier and more convenient. Nevertheless there are some new issues that can be highlighted due to the popularity of Internet voting.

As a sidenote, prisoners are not allowed to vote at all in Estonia and so are not tens of thousands of stateless persons mostly belonging to the Russian minority who have lived in Estonia long term, but have been deprived of citizenship.

Security

First of all, there is no software without bugs or vulnerabilities. The more popular internet voting becomes, the more of a target it will be for hackers that want to undermine democracy in Estonia, either by modifying the outcome or creating distrust regarding the outcomes of the election. For the latter no actual security breach is needed, just effective ‘fake news’.

Internet voting is also inherently insecure because of its centralised nature — in order to tamper with paper ballots in a way that significantly influences the outcome, a massive effort is needed that is difficult to conceal, because there are so many polling stations. Internet voting is much less transparent and understandable for a regular citizen, and there is only one single attack point.

Lack of secrecy

The secrecy of the vote could be undermined, because internet voting does not take place in a more or less controlled environment of a polling station. This means that there are no guarantees that voters are not unduly pressured by their friends or family while voting, nor is there a guarantee that the actual voter themselves is voting (if you have the ID-card and the PIN-codes, you can vote for someone else, although this would be a crime).

Voter influence by online ads

During the Internet voting period, there is no ban on campaigning, unlike on the polling day. This means that voters are influenced by online advertisements to click and vote online by various parties. An offline analogy would be political parties busing voters to polling stations, which is not a good thing. More than half of the voters will probably vote during the active campaigning period, which makes banning ads during polling day pointless and quiant.

Politization of online vote

Voting methods should be neutral. However, Internet voting is in Estonia closely connected to (neoliberal) nation-building and state image, proving once again that innovation is political. This means that those parties that oppose the establishment (Centre Party when it was in opposition, the populist radical right EKRE now) question the validity of Internet voting. Other parties use Internet voting to promote their achievements and the image of a technologically progressive nation. In an ideal world all participants in an election would equally accept all means of voting.

Making an informed decision

While the majority of voters have likely voted online or during prevoting, what is the point of having election debates on the eve of the elections or during those last few days? The voters who have cast their vote online are not able to change their vote on the election day. Those who voted before will not be able to make as an informed decision as those who did during the polling day.

Cost

Internet voting is an additional expense. Although not as costly per vote as a paper ballot, it requires to have an parallel system to exist and be constantly kept up to date. Having two voting systems means that both systems are less cost-effective than having just one system. Online vote will be a cost-effective solution only when the paper ballot is lost entirely or mostly, which would allow to close down the majority of polling stations.

Long term impact

Technology can have transformative effects. Internet voting has the potential to transform (or has already transformed) representative democracy in ways that can be both good and bad. There are also questions what this means long term (provided there is no catastrofic event that stops this). What is the point of having a specific polling day with the quaint rules? What is the point of election districts, when online voting is not connected to a specific location? Are national and lingustic minorities somehow more or less disenfranchised?

Furthermore, what is the impact to democracy when it becomes such an instant experience? Will it transform the relationship between the citizen and the state? If yes, then how?


On the failure of human rights movement

Posted: April 24th, 2018 | Author: | Filed under: human rights | No Comments »

Yale professor and historian Samuel Moyn writes in the New York Times about what he sees as the failures of the human rights movement. In many ways his criticism is valid, but also somewhat misguided. As someone who has worked in the human rights field in a national level for a number of years, here is my view.

It is true that social and economic rights have not received nearly enough attention and that the human rights movement has in many ways been a failure because of its inability to address those issues. The interdependence of human rights means that weak protection of social and economic rights also weakens human rights as a whole. We also see this in our work at the Estonian Human Rights Centre: while we focus on the most vulnerable, such as gays and lesbians or asylum seekers, many people rightly ask why we do nothing for the reduction of poverty or combat economic inequalities. In our human rights report, there is very little on economic and social rights.

 
However, I am not sure that a focus on tackling inequality alone is going to save the human rights movement. Already accused of being left-leaning, this would mean that human rights groups would take a very strong political position that is commonly associated with the political left. It should not be the role of human rights groups to play such a partisan role. 
Also, when considering that those belonging to a minority and identifying as women are in greater risk of economic and social problems, I think that by fighting for them we also fight for a more just world in economic terms.
 
In addition, social and economic rights are simply not as well protected in international law, which makes it extra difficult to define the standards. The European Social Charter is not nearly as powerful as a tool as the ECHR. There are not as many monitoring mechanisms or reporting requirements that involve economic and social rights, which means that states get away with things with impunity.
The solutions are multi-sided. Of course more emphasis needs to be placed on economic and social rights, and explaining how these are human rights issues. One opportunity to do so is availed with the Sustainable Development Goals, which can be easily linked with human rights issues, especially economic and social rights ones.
 

Regulating technologies for the future

Posted: June 4th, 2017 | Author: | Filed under: education, governance, human rights, politics, privacy, technology, thoughts | No Comments »
There is going to be some sort of regulation of the new technologies, sooner or later. Governments are getting involved and it is not necessarily a bad thing. Libertarian-minded people might not agree with this, but in the deployment phase of any techno-economic paradigm (as illustrated by Carlota Perez) governments are going to have to step in to guarantee the success of the deployment for all.
In the previous TEP, this was “The New Deal”, Marshall Plan and the development of global institutions. This resulted in the post-War Golden Age in the US and Western Europe, with the social safety net and a strong middle class. The one before (The Belle Epoque) was more of a Gilded Age, which benefited only a few.
The ICT TEP, which we are in the middle of, is going to be the greatest of those so far, because for the first time to paradigm shift is more or less global, impacting billions of people at once.
  • We need regulation to ensure that new technologies reach all people of the world and not benefit just the few (enacting strong net neutrality rules for example).
  • We need smart regulation to prevent tech monopolies from abusing their position.
  • We need rules that provide public oversight and participation.
  • We need to make sure that new technologies are not going to be used for unethical and immoral ends.
  • We need to make sure that there are strong privacy rules protect the individual, their freedom and autonomy.
  • We need to make sure that technology does not allow totalitarian and extremist propaganda to isolate individuals and destroy solidarity, trust and social cohesion that is more necessary that ever in an interconnected and interdependent world.
  • We also need to change our existing regulations to fit with the new world, in all levels of governance. Otherwise we are sailing the oceans with outdated maps (as Seyla Benhabib so well compared the lack of guidance that international law gives us in a new era of cosmopolitanism). This requires creativity and imagination, an open mind.
However, there are also those that want to step in and regulate in ways that work against those goals. There are those who want regulation to go the other way: expanding and legalising mass-surveillance, ban strong encryption, protect monopolistic technologies, prevent or limit access to technologies by poorer countries or help to deny the voice and participation for minorities and women.
The fight is not for or against regulation: not having rules is not a sustainable option. The fight is about what kind of rules we will have; whether there will be those that protect human dignity, freedom and rights, advance solidarity and mutual respect and understanding; or those that divide and threaten, limit freedoms and rights.

On human rights and Turkey

Posted: April 18th, 2017 | Author: | Filed under: governance, human rights, thoughts | No Comments »
It is very easy to succumb in light of the Turkish referendum in public discussions to the idea that with the distancing from Western-style democracy, Turkey is going to follow the path to a similar autocratic quasi-totalitarianism as Russia with its ignorance of human rights. However, when considering the historical experience of the Ottoman Empire, Islam as a distinguishing factor might help not hurt to protect human rights.
 
It should be noted that the Ottoman Empire did protect human rights quite extensively within its long existence (comparatively to the same time period in Europe). Although the rights were less individualistic, it was based on the Sunni application Sharia law, which gave both Muslims and non-Muslims extensive rights. These included rights for women and non-discrimination or at least non-persecution of followers of other religions (the segregation-based millet system). Indeed, it was the Ottoman Empire where the Sephardic Jews escaped to from Catholic persecution in the Iberian peninsula.
 
The Ottoman Empire existed for more than half of the millennium partly because of tolerance and rights. The treatment of non-Muslims only began to change in the decline period with the transition to a more European style nation state. Here is description of the situation for minorities under Ottoman rule:
“The fact that under Ottoman rule human rights were not perceived with the individual in mind should not lead us to the conclusion that minorities were generally oppressed by the state. Such an allegation could easily be refuted by evidence that, right from the beginning, a significant proportion of the Balkan Christians freely chose to live under the sovereignty of the Ottomans. Until the arrival of “the wind of nationalism” in the early nineteenth century, the Balkan subjects of the empire were generally content with Ottoman rule. This is the most reasonable explanation for the speedy expansion and consolidation of the Ottoman rule in the Balkans from the fourteenth century onwards. To give an example, in Hungary, which the Ottomans called Budin, the Ottoman Empire did not interfere with religious freedom, but instead protected the Christian subjects against local fiefs. Therefore, the claim that non-Muslims began to enjoy human rights and liberties only after the Tanzimat reforms of the nineteenth century is patently false. Except for the limitations imposed by the Shariah law and the deliberate policy of keeping the religious communities apart, Christians, Jews, and Muslims were treated equally under Ottoman rule. Among the rights they enjoyed were: civil rights; freedom of travel; freedom of religion and conscience; the right to education; and the right to privacy. It can be asserted with confidence that the Ottomans generally implemented the rights and liberties which the Quran grants the People of the Book (ehl-il kitab). The registers of the court of records of Islamic canonical law amply prove that the Ottoman courts generally observed and respected the rights of non-Muslim subjects.”
 
Read more: Aral, Berdal. “The idea of human rights as perceived in the Ottoman Empire.” Human Rights Quarterly 26.2 (2004): 454-482.

Estonia has a female president

Posted: October 4th, 2016 | Author: | Filed under: diversity, human rights, thoughts | No Comments »

3 October 2016 was a historic day for Estonia, because after lengthy, incredibly convoluted political campaign the Parliament voted to install Kersti Kaljulaid as the country’s first president who is not a man. It is important and significant step for the development of the country.

The prospect of a female president is not so new. Already in 2006 Ene Ergma was almost elected as president, she was just three votes short in the parliament.

So in itself it does not seem such a big deal that the political elite considers women acceptable as leaders until one thinks about the poor situation in Estonia in terms of gender equality. Estonia’s parliament has had the number of women parliamentarians constantly hovering around 20%; in the government it is usual that one or two women make an appearance in an otherwise boys club. The gender pay gap is the largest in the European Union and the rate of gender based violence is remarkably high. The voice of women is constantly underrepresented in the media and even mainstream feminists considered radicals.

Already there have been voices that the gender of the president actually makes no difference. But it does. As a man I cannot really imagine what it must be like living in a society where almost everyone in government, and the vast majority of past political leaders not in your country but everywhere in the world are not the same gender as you are. Kersti Kaljulaid will be a role model and an inspiration to many of those who have been previously left out.

Of course, a female president alone does not automatically make men and women and others in Estonia more equal. But it is a step in the direction of a more representative, inclusive state which can heal the divide between the political elite and people.

The final frontier for a woman in Estonian politics is obviously the position of the Prime Minister, who actually is the Head of Government in Estonia.

In terms of my take on who Kersti Kaljulaid is, I will reserve this for a later date. It is not a good idea to build up one’s expectations too high regarding politicians, because these will be inevitably crushed at some point (see Obama). From the first look she seems a middle-of-the-road classical conservative, a rational and thoughtful person, not too far from my own views in terms of classical Kantian constitutional republicanism. In terms of values of Estonian people, she seems to click better than the previous president did, which makes her a good candidate for reaching out to, listening to and communicating with the Estonian people.

Read also:


Brexit and the cosmopolitan world order

Posted: June 27th, 2016 | Author: | Filed under: european union, governance, human rights, philosophy, politics, thoughts | No Comments »

There are those who see the United Kingdom’s exit from the European Union as a prelude to turning back to the times when the main sovereign actor in the world is the (nation) state. However, resorting to the intergovernmental model is not the only option to analyse Brexit, the other views (cosmopolitan pluralist, minimal world state and cosmopolitan democracy) should be analysed as well.

Intergovernmentalists probably see Brexit as a natural consequence of a political union that has stretched too far. There can be no (democratic) legitimate government above the nation state level and thus any attempts at political unions such as the EU are futile if not harmful, this thinking goes.

The negotiation of national parliamentary sovereignty and binding supranational rules have been unsuccessful in the EU-UK case and thus it is only normal that the state that has delegated powers to the EU can now take those back and leave. In this traditionalist thinking, the citizens of the UK had all the rights to vote for Brexit, because it is they who are ultimately in charge of the fate of their country and whatever they do (even if it harms themselves or others) is right.

The cosmopolitan pluralists believe that (nation) state is over or in decline and no longer the centre of sovereign power. Therefore power has been shifting to multiple other levels of government, global, regional, subnational, corporate multinational etc. The state is just one of the levels of a pluralist, complex, interdependent, networked world which does not have a centre of power.

From this perspective, Brexit as a decision by referendum of the UK citizens was unfair: in a cosmopolitan plural world order everyone who is affected should get a say and stakeholders consulted. In an interdependent world why are the citizens of one entity allowed to screw things up for everyone else? Scottish independence is a neat example of the subnational levels of governance exerting influence beyond the nation state. Even if the UK left, this does not mean that we should not continue to democratise the supranational levels of governance (i.e. the EU) and continue building a strong European polity.

The proponents of the minimal world state model are of the view that there are certain universal core principles that apply to all states and all people, which cannot be derogated from and the breach of which will limit state sovereignty. Universal human rights at their core are as such limiting state sovereignty: humanitarian interventions can be used to prevent mass grave human rights violations, such as genocide, in a sovereign state. Other violations might bring sanctions and trade restrictions. This minimal world state is institutionalised through the United Nations Security Council and General Assembly (and other UN bodies) and includes international NGOs as powerful actors. The deliberations at the global level in other matters than human rights as well (millennium development goals) exerts soft pressure to states to comply.

Brexit does not really have a consequence in terms of the minimal world state model, because both the EU and the UK remain a part of it and will need to comply with the core requirements. The influence of the EU and the UK in the world state level might be decreased because of the weakening of the position of the EU.

Cosmopolitan democracy model requires democratic decision-making in all levels, including global. This model sees the future creation of a world parliament and limits state sovereignty only to those issues that are internal to that state. In this case states are subordinated to a global democratic entity and transnational solidarity is the norm, because most problems are not confined to the borders of any one state.

Brexit is a setback to cosmopolitan democracy if one counts the EU as a precursor to eventual global democracy. In a fully developed cosmopolitan democracy Brexit would not matter because nation states would not matter either. The UK leaving the EU would be similar to a redrafting of the administrative borders of a county or district, which does not have global impact.

In conclusion: none of the models of international political theory offer a complete solution. The world is slowly turning away from the intergovernmental model, but neither the minimal world state and cosmopolitan pluralism models are fully existing yet. And even though cosmopolitan democracy is as an ideal an interesting one, it seems to be a long way to go before it can be realised. Brexit can be read as a countertrend towards intergovernmentalism, but it (and the reactions to it) also reflect the unsuitability of the current international political frameworks to deliver. The confusion and reactions in different countries (and the fact that we in Estonia also care deeply about Brexit) can be seen as supporting the emergence of cosmopolitan pluralism as the main framework, but as it also is vague and confusing it does not offer much help. Minimal world state does not seem to be affected much (even though prevalence of nativism might mean even less interest in responsiblity to protect doctrine and thus weakening of the applicability of the model).

Read more:

Zürn, Michael. “Survey Article: Four Models of a Global Order with Cosmopolitan Intent: An Empirical Assessment.” Journal of Political Philosophy 24.1 (2016): 88-119.


We need to talk about lawyers

Posted: May 12th, 2016 | Author: | Filed under: Estonia, human rights, law, politics, thoughts | No Comments »

I am a lawyer by training, I teach law and am also a member of the council of Estonian Association of Lawyers. I am proud of my profession and have contributed my small part in advancing the legal education in Estonia at Tallinn University of Technology (where I also was for a while in charge of curriculum development). I think law can play an important role in preventing harmful developments (like mass-surveillance), but sometimes law and lawyers can also fail the society they should be serving.

The on-going criminal trial of the writer Kaur Kender continues to bring out important issues related to the criminal justice system in Estonia. It appears that the prosecutor and the judge have asked during the trial (which is closed from the public) from at least one witness: “why do people waste their lives crossing boundaries?”. If true, that question is an important revelation about some parts of the law and justice system in Estonia.

In Estonia, the overwhelming majority of practising lawyers have graduated from the University of Tartu. Indeed, there was no other place to study law before Estonia re-gained its independence in 1991 and even after that government higher education policies did not (and do not) support diversification of legal education. This means that prosecutors, judges, and defence attorneys share common thinking that has been shaped by their alma mater. The same professor of criminal law has influenced nearly all lawyers in Estonian (criminal) justice system. This thinking is influenced both by the authoritarian Soviet legacy and by the legalistic and formalistic German legal tradition, which carries the thoughts of legal positivism and which became the bedrock during the transition to democratic government.

The lack of diversity of opinion and the conformist education has meant that many lawyers tend to think very much inside the box. They thus innately refuse to challenge authority: until some years ago it used to be an extremely radical proposition among lawyers to criticise the judgments of the Supreme Court. It seems that many lawyers consider themselves strict followers of the grammatical interpretation of specific rules, rather than seeing the social context and the larger goals of specific legal acts.

This is partly reinforced by the rigid legal system itself, which treats prosecutors not as people capable of independent thinking. Article 6 of the current Code of Criminal Procedure obliges the authorities to “conduct criminal proceedings upon the appearance of facts referring to a criminal offence”, even if they think that this does not make a lot of sense. Prosecutor Merika Nimmo has concluded in her analysis in an article published last year in Juridica, that “forgoing the strict application of the principle of compulsory criminal proceedings would, according to the author, undoubtedly help to design a faster, more effective and human-centred criminal procedure”.

In history, we have seen horrible results when lawyers stop thinking about the larger picture and construe their roles strictly legalistically. In the introduction of a booklet published by the United States Holocaust Memorial Museum, on “Law, Justice and the Holocaust”, historians wrote about the role of lawyers in Germany leading to Hitler’s rise to power:

Coming from a longstanding authoritarian, conservative, and nationalist tradition, judges believed deeply in reinforcing government authority, ensuring public respect for the law, and guaranteeing that state actions had a legal basis (Rechtsstaat). At the same time, they valued judicial independence in the form of protection from arbitrary or punitive removal from the bench and freedom from dictates regarding decision making. Above all, they rendered judgment based on such fundamental Western legal principles as the equality of all citizens, the right of an accused person to a fair trial, and the concept that there could be no crime or penalty without prior law.

In spite of these values, political democracy presented serious challenges to the judiciary. Many judges rejected the legitimacy of the democratic Weimar Republic, since it had come about through revolution, which they considered, by definition, a violation of the law. This attitude had long-term consequences for the republic. Judges routinely imposed harsh verdicts on left-wing defendants, whom they regarded with suspicion as revolutionary agents of various foreign powers, while acting leniently toward right-wing defendants, whose nationalist sentiments typically echoed their own. As a result, in the mid-1920s, supporters of the republic proclaimed a “crisis of trust,” demanding the temporary suspension of judicial independence and the removal of reactionary and antidemocratic judges from the bench. Judges regarded these developments with alarm, rejecting proposals for reform as a perversion of justice. Many were convinced that the criticism leveled upon them, which had come from the political left and from parliament, undermined the authority of the state.

When Hitler came to power, he promised to restore judges’ authority and shield them from criticism even as he curtailed their independence and instituted reeducation programs designed to indoctrinate jurists in the ideological goals of the party. The Nazi leadership used a series of legal mechanisms—which, in contrast to the revolutionary overthrow of power in 1918, judges tended to consider legitimate— to gradually assume and consolidate Hitler’s power. Then, step by step, and always under the guise of safeguarding the state, the Nazi leadership imposed legislation that fulfilled its ideological goals of rearmament, military expansion, and racial purification.

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis’ ability to carry out their agenda.

Nazi Germany is, of course, a thing of the past. But there are lessons to be learned from here. Judges, prosecutors and lawyers do not operate in a vacuum. They are human beings with beliefs, biases and opinions, which do play a role in the work of the judiciary at any country. The US judge and legal scholar Richard Posner argued after the 9/11 attacks that judges should go with the times and prioritise security over liberty:

If it is true, therefore, as it appears to be at this writing, that the events of September 11 have revealed the United States to be in much greater jeopardy from international terrorism than had previously been believed—have revealed it to be threatened by a diffuse, shadowy enemy that must be fought with police measures as well as military force—it stands to reason that our civil liberties will be curtailed. They should be curtailed, to the extent that the benefits in greater security outweigh the costs in reduced liberty. All that can reasonably be asked of the responsible legislative and judicial officials is that they weigh the costs as carefully as the benefits.

Even though I strongly disagree with the position stated above, at least these issues are discussed in the United States. In Estonia, we do have a mostly impartial judiciary according to international standards, but there has not been much discussion about the influence of the authoritarian Soviet legacy among the legal community and the impact of the prevailing conservative legal thinking due to the prevalence of legal positivism as well as the conformism and groupthink which stems from common educational background and the domination of a single law school. Such debates might turn out to be useful.

However, I also think it is equally important that the critics of the criminal justice system learn from the past and do not antagonise lawyers, as a part of the Centre party and some supporters of Kaur Kender or more lenient approach to prosecution of drug-related crimes seem to want to do, but instead work together to change the system to be more fair. It is important to learn from the past and, most of all, encourage independent, out-of-the-box thinking among lawyers as well as cultivate pluralism among legal education in Estonia. This is not only in the interests of better protection of the right to fair trial, but also for the safeguarding of the constitutional order, democracy and all other human rights.

Further reading:


Why A Chairman’s Tale matters

Posted: April 14th, 2016 | Author: | Filed under: cool, diversity, Estonia, human rights | No Comments »

Today, an exhibition entitled “Not Suitable for Work. A Chairman’s Tale” opens in Tallinn. It is a remarkable and important work which details the life story of a gay man living in Soviet Estonia. Added significance is that the exhibition is displayed at the Estonian Museum of Occupations, which is a museum dedicated not to careers or professions, but the military occupations of Estonia during and subsequent to World War II.

The oppression of totalitarian regimes against minorities is a well-known fact, but repression against gays, lesbians, bisexual and transgender people and other such minorities has not received similar attention as against other groups. This is due to the fact that discrimination and violence against LGBTQI+ people has occurred and continues to exist in even the most democratic and progressive countries. It was only in 2009, 55 years after his death that the UK Prime Minister Gordon Brown apologised for the prosecution and chemical castration of Alan Turing, the father of computers, for being gay. Many people who were prosecuted like this all over the world have yet to receive an apology or any compensation. A memorial to homosexuals persecuted during Nazism was only opened in Berlin in 2008, although it was known before that Jews were not the only group that suffered at the hands of the Third Reich. The first groups of people sent to die in the concentration camps were actually people with disabilities.

It is essential for the fight against intolerance based on sexual orientation and gender equality that past injustices do not stay covered up. Remembering violence and discrimination helps to prevent it from happening again. It is also important to recognise that such minorities have always existed even though history books do not tell about them. When discussing the Soviet period in Estonia, too little focus has been placed on the situation of minorities such as LGBTIQ+ people.

Therefore the Estonian society has to be grateful to Jaanus Samma and his team for shedding light to this aspect of Soviet era and help us to understand this period better. Hopefully there will be more people like him who will expand the so far very incomplete knowledge about the history of gay and lesbian, bisexual and transgender Estonia and Estonians, which will be useful not only to us, but also for generations to come.


On Untitled12

Posted: February 13th, 2016 | Author: | Filed under: Estonia, human rights, things that suck, thoughts | No Comments »

In Estonia, the controversial author Kaur Kender has published a piece of transgressive literature at nihilist.fm, a free-for-all alternative publishing platform that he himself has helped to create. The Untitled12 story depicts the character’s gradual loss of humanity and includes vile and depraved sexual acts, including against a minor. The publication of the work has resulted in the author being the subject of criminal trial, which has divided the public opinion.

The more traditionalist-conservative people seem to enjoy with glee that a subversive counterculture figure who criticises the status quo, existing hierarchies of power and stagnation of Estonian culture has finally received punishment. They see him as a symbol of a wider threat to nativist culture, Estonian language, to bourgeois living. For them, he is an outsider who is interested in ‘foreign’ rap music and who refuses to conform with the safe, static mainstream of the small Estonian cultural circles. Because he cannot be easily marginalised otherwise, he has to be dealt with some other way: boycotted or possibly put into jail.

Putting Kender to trial seems intuitively wrong to any person who has grown up with liberal democratic ideals. Tolerance of publications that shock, disturb and insult other people is a part of the bedrock of freedom of expression. It would be hollow and meaningless if only conformist mainstream expressions that everyone agrees with are allowed. Indeed, freedom of expression can only be limited if it incites violence against minorities. Even then, books and other forms of artistic expression require from states to meet a much higher burden than other types of expression.

Artists usually occupy spaces in the margins of the society, because they create original works that challenge the status quo in order to shape the culture in a continuous communication. If those margins were cut off and only conformist works allowed, the culture would wither and die quickly. The government and society needs to accommodate these expressions, even if they go against the most basic moral standards. This case is about morality, and not the abuse of children.

The more liberal part of the elite support the view that the trial is a misguided enterprise and blame the authorities in having a too wide of a interpretation of the criminal code, which puts many other works of art in danger. For them, the eventual vindication of the author would be a statement of Estonia as a liberal country. However, it can also be a Pyrrhic victory.

Hannah Arendt described in the Origins of Totalitarianism the public mood in the 1920s. The ‘anything goes’ roaring twenties were a time of redefinition of morality. She wrote:

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Hopefully we are not re-living the preWWII era, but there are dangerous similarities with the current case. Kender is so effective in his onslaught against moral values that he risks (with considerable help from the prosecutors) that the effect of his work could be the opposite of his intentions. That it trivialises the sexual abuse of children or that it actually helps to bring about more mob-mentality, not less. For the mob that is currently rallying behind extreme right this is a sign that the liberal elites have lost it, because they are defending someone who is so profane and who has written something so vile and unacceptable. The liberal elite may become more amoral in the eyes of the masses.

It is difficult to know how this case ends. The debate around it already shapes the reality and creates unintended consequences. It would have been best for the authorities not to get involved, in which this niche work could have remain just that. Whatever the solution that the justice system comes up with, it seems to be a lose-lose proposition for everyone involved.