A Russian-language TV channel would be a mistake for Estonia

The Estonian public discourse is engulfed in fear and paranoia about Russia, even more so today than usual. This is understandable because of the Russian actions in Ukraine and other countries and because of the large ethnic Russian population living in Estonia. According to the results of the latest census, there are ca 890 000 ethnic Estonians living in Estonia and ca 320 000 ethnic Russians. All other ethnic minorities have smaller numbers.

Many Russians (especially the majority that has either a Russian citizenship or is stateless) have little to no political representation rights, because non-citizens are not allowed to belong to political parties, vote or stand as candidates in the parliamentary elections and stand as candidates in the local elections (they can vote in local elections, however). This was a decision made by the Estonian political elites when Estonia regained its independence, to ensure smooth integration with Western political structures and escape influence of Russia. These decisions made 23 years ago have resulted in fast economic development (at least in terms of neo-liberal model) and membership of EU, NATO and OECD. The cost has been the political disenfranchisement of the ethnic Russian population which has fueled societal segregation and a created a flawed democracy.

Recently, however, the Estonian political elite has become worried that the Russian minority might be used against Estonian territorial integrity in a way similar to what happened in Crimea and is happening in Eastern Ukraine. The prevailing view is that many Estonian Russians watch Russian TV stations and are thus subjected to anti-Western propaganda. Thus it is necessary to offer them a more balanced and objective media channel, which is why the Estonian government decided last week that Estonian public broadcasting ERR will get 4 million euros to create a Russian-language TV channel.

This is fundamentally a wrong decision, albeit a convenient one.

It is a wrong decision because it treats Estonian Russians as objects not subjects and reinforces the idea that they are the problem and their minds need to be changed, very much similar to the employment benefits reform, which also saw the main obstacle for disabled people not working the lack of motivation of people with disabilities. This paternalistic view reinforces the understanding that people are not capable of thinking for themselves, that they can be influenced by propaganda and that it is the governments job to tell people what is right and what is wrong, who is enemy of Estonia and who is not.

It also creates a false impression that there is one ‘objective’ way of looking at things, which can easily lead into propaganda. I mean, if the Estonian government is creating a TV channel, which it says is not to be used for propaganda, then that they even have to mention this makes one doubt the objectivity of it. Coupled with the recent serious discussions on the need for “psychological defense” for Estonia, impartiality on issues of integration seems to be impossible if not intentionally then because of the difficult historical context. This is such a difficult topic for Estonia that wading into it cost Jürgen Ligi his job as the Minister of Finance a few weeks ago.

There are no easy solutions, because all the effective options need more equal treatment of Estonians with Russians, which is more difficult for Estonians to handle, because of historical wrongs perpetrated against Estonians and Estonia.

If I was in charge, this is what I would do to make sure that there is a democratic and independent Estonia:

1. Ensure that any and all instances of discrimination of Russians (and other minorities) in Estonia can receive an adequate legal response, either in employment or in other areas. Investigate in detail where are the more systematic problems (rental market, recruitment) and deal with them. Invest money in this, because this means a more just society that is more stable. The Estonian equality body (Gender Equality and Equal Treatment Commissioner) suffers from chronic lack of funding (it receives annually ca 70 000 euros from the state budget), last year only 2 people turned to the office with complaints based on ethnic or national origin. There are very few cases in courts and employment dispute commissions. This means that there are massive number of unresolved discrimination claims. If we deal with these claims and give access to remedies, the perception of Estonia discriminating against Russians can be easily countered.

2. Ensure that all people that live and intend to continue living in Estonia are part of the Estonian public sphere. This means that there has to be a solution to statelessness and citizenship issues. It is possible to create a radical plan to ensure that in 10 years almost all people who are permanently living in Estonia have (at least) Estonian citizenship. If there is enough time to prepare and everyone knows that it will happen, the political parties will have to be more inclusive or face the loss of the Russian votes to others. Any other solution for integration does not work, because citizenship is fundamental. This means that many more Russians will get a say in Estonian politics, which is more democratic and leads to a better governance on the whole. If Russians are 25% of Estonian people, then this should be also reflected in government, its policies and resource allocation.

3. Spend considerably more on educating all citizens to make up their own minds. The best guarantee of the continuation of Estonian democratic statehood is a citizenry of independent autonomous individuals that are able to make up their own minds. So what is needed is education of people to recognise propaganda, to evaluate and analyse information based on source and strength of argument, to make rational, research-based, not emotional decisions. I see every day that people cannot cope with all the information, they are unable to understand what is authentic and what is astroturfing, many people seem to lack functional reading skills and critical thinking is not appreciated or taught. Media has a key role in this, but not only. This also means that civil society must play a larger role than the state-dependent sideshow it is today.

Thus it is my argument that the Russian-language TV channel is really meant to placate the majority population that something is being done. It will have no impact on the situation or mindset of Estonian Russians, because it conveniently misidentifies the problem, as there is not enough political courage and/or will to do something that has a real impact.

Additional reading:

• Kjetil Duvold: Between Flawed and Full Democracy: 20 Years of Baltic Independence
  
• Peet Kask: Lonkava demokraatia ravi
• Licia Cianetti: Granting Local Voting Rights to Non-Citizens in Estonia and Latvia: The Conundrum of Minority Representation in Two Divided Democracies
• Aleksandr Aidarov and Wolfgang Drechsler: Estonian Russification of non-Russian ethnic minorities in Estonia?

The end of collective technophilia?

2014 could be the year that a serious shift happened in our attitudes towards technology.  A more critical, perhaps mature attitude seems to be developing, initiated by the Black Swan event created by Snowden revelations, the so-called Snowden effect. Our societies will be better because of it, especially in terms of protection of human rights and democracy.

For a long time, there has been a concern that human rights do not get enough emphasis in our constant drive for better and more efficient living through constant improvement of technology. This has meant that technology has become and end and not means to achieve something.

In Estonia, this is even more prevalent, because the national narrative and international image of the country has been built to depend on technology. The success of e-stonia is seen as source of national pride and international scholars are also usually not focused on such a small country, which prevents any critical analysis of the situation and opens Estonia up to huge vulnerabilities. This perverse view of technology is seen particularly strongly now, when e-voting is touted by the ruling political elite (while one major party is totally against it). This view can be seen for example in the statement by President Ilves: “Minule on e-hääle andmine mitte ainult mugav, aga eelkõige usaldusavaldus maailma ühele paremale IT-süsteemile, usaldusavaldus Eesti riigile.” (“For me, e-voting is not only convenient, but foremost a statement of trust towards one of the world’s best IT-systems, a statement of trust towards the Estonian state”).

Worldwide, the shift to a more reasonable, less hype-filled approach is evidenced by various courts trying to better balance freedom of information and speech with privacy rights and other rights. Freedom of information and speech has seen an unparalleled Golden Age with the Internet, however, previously there was not much discussion related to the fact that human rights are interdependent and indivisible. Thus, a much greater emphasis on freedom of information also means that some other rights are going to be less protected.

In some remarkable recent court decisions courts have finally begun to critically evaluate the impact of technology to the society and, specifically, human rights. They have attempted (arguably not most successfully), to rebalance freedom of information with other rights. This has been mostly happening in Europe, since the EU has the strongest data protection laws in the world.

• In the Delfi vs Estonia ECtHR case the ECtHR placed the responsibility for libelous anonymous comments on the online news portal that published them, rather than the author of the comment. The case has been referred to the Grand Chamber so there still might be a change, but the initial chamber decision stated pretty clearly: “The ease of disclosure of information on the Internet and the substantial amount of information there means that it is a difficult task to detect defamatory statements and remove them.”
• The CJEU invalidated the Data Retention Directive in its landmark judgment in which it declared mass surveillance illegal. The CJEU went further than anyone expected when it said: “As for the question of whether the interference caused by Directive 2006/24 is limited to what is strictly necessary, it should be observed that /…/ the directive requires the retention of all traffic data concerning fixed telephony, mobile telephony, Internet access, Internet e-mail and Internet telephony. It therefore applies to all means of electronic communication, the use of which is very widespread and of growing importance in people’s everyday lives. Furthermore, in accordance with Article 3 of Directive 2006/24, the directive covers all subscribers and registered users. It therefore entails an interference with the fundamental rights of practically the entire European population.”
• The CJEU also ruled in its very recent Google Spain decision that there is a strong “right to be forgotten” and the search engine must remove links to information that a person does not want to be linked to. The CJEU said: “As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public by its inclusion in such a list of results, it should be held, /…/ that those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.”

There are also some other interesting developments:

• In popular culture, tech culture has increasingly become subject of criticism. See the series Silicon Valley and, most poignantly, a recent episode of HBO’s Veep.
• Recently it was reported that German economy minister Sigmar Gabriel suggested that it might be necessary to break up Google, while current President of the European Parliament and one of the top candidates for the next president of the European Commission Martin Schulz stated on Google: “Whoever knows everything about citizens, firms and politicians achieves a level of power which doesn’t belong in a pluralistic democracy.”
• There are also growing grassroots citizen movements that target the tech giants such as Europe v Facebook.
• MOOC courses are increasingly seen as mostly hype and not the transformation that it was claimed to be.
• The Estonian Supreme Court also decided in a less reported case last December that charging less for online court proceedings than traditional ones is unconstitutional, because of the importance of fundamental rights at stake (access to justice). The Court among other things heavily criticised the concept of efficiency behind the introduction of the e-justice system and accused the government that it is trying to shift the burden of entering and submitting complicated legal documents from the courts to the general public who might not be best prepared for it.
• The Estonian online election system has been called highly vulnerable and recommended to be abondoned by leading scholars in the area.

Thus the shift consists of better rebalancing freedom of speech and information with other human rights in the online context and a more cautious and realistic view towards the danger that the likes of Google and Facebook are posing to the lives of all individuals, our human rights and democracy due to their omnipresence in the Internet. In terms of Carlota Perez’s Techno-Economic Paradigm Shift theory, this could be signal that the world has moved on the a more stable and peaceful deployment period of the currently dominant ICT paradigm from the turbulent installation period.

The elections that nobody cared about

Today the European Parliament elections started in Estonia with the pre-voting and e-voting. Leaving aside the debate sparked by the questioning of the integrity of the e-voting system, it is quite remarkable how uninteresting the European Parliament elections have been for everyone: the general public, the political parties and the candidates themselves. Sure, there have been interesting candidates. Sure, the campaigns have reached a new low. But there does not seem to be anything remotely fresh in these elections. The EP elections have become a sideshow, a marginal affair. Why?

There are some global reasons:

1. The constitutional nature of the EU: Joseph Weiler has written about the legitimacy crisis and why the EP elections does not solve this. Due to the nature of the EU, the results of the EP elections do not automatically and directly translate into changes in the EU level (because the Council also has a say). Even the Commission president might not come from the party that gets the most votes.
2. The lack of pan-European polis. There are no pan-European political debates or media space which would bind people together in a common discussion. There is no platform in which to commonly discuss European issues: instead there are 28 different debates on different issues going on in 28 different member states.
3. The disconnect between EU level political parties and national level political parties. The campaign in Estonia has been very bizarre, because some people talk about European issues and others about national ones. This complexity deters voters.

Specific reasons in Estonia:

1. Six seats is a really marginal number. People cannot see how six members out of 750 can have any kind of influence over EU policy. They are also divided between different parties, so basically there is also no interest from any of the EU level parties, because the two big ones are sure to get at least one seat, liberals two and the other two are the only ones that are in limbo.
2. Extreme disconnect between EU level and national level in elections. Two of the main opponents in the Estonian campaign are actually going to be in the same political group in the EP. The Reform Party (ALDE group) is campaigning mostly against the Centre party (also ALDE group).
3. E-voting has probably made voting less relevant, more ephemeral. Although e-voting might increase the turnout (although there is research suggesting otherwise), it seems to lower also the overall relevance of voting as a ritual. Thus it becomes a mere functional, mechanical process in which customers click to choose the best government that provides best service (boosting clientelism and lowering the meaningfulness of the democratic processes).
4. Parties are saving resources for the elections that truly matter. In one year there will be national parliamentary elections, which is the main focus of the political parties. EP elections are used mostly as a testing ground for messages and new faces, not as a separate election.
5. Other topics overshadow the lackluster campaign. The Russia-Ukraine conflict, the debate surrounding the new government, the draft gender neutral co-habitation law, the Eurovision song contest and other topics take up space from EP elections.

As a true European, I hope that the EP elections will go well and the voter turnout increases even despite the lack of attention to the campaign. But it does show that something fundamental has to change in the electoral process and the architecture of EU in order for the EP elections to truly matter.

P.S. An idea how to increase voter turnout (not necessarily the quality of the debate though) is to allocate seats based on voter turnout. In this way each country should get a minimum number of guaranteed seats in the EP, but they can increase this number if a certain threshold of voter turnout percentage is surpassed. This requires, of course, more uniform election procedures in all MS. You could not have compulsory voting like in Belgium. And probably also no e-voting.

Some thoughts on local election results in Estonia

Yesterday local government elections took place all over Estonia. Most of the local governments are miniscule, and there are a lot of them; Tallinn as a capital is, however, huge and has one third of Estonia’s population. That is why most commentators and analysts focus on Tallinn mostly. Tallinn has ca 50% of ethnic Estonians and about the same number of non-ethnic Estonians (including stateless persons and foreign citizens who are also allowed to vote). Tallinn has been embroiled in corruption scandals, the Mayor Edgar Savisaar has been accused of using public funds to advance his election campaign, etc. Savisaar’s Centre Party has the majority of seats in the city council.

In my opinion one needs three things to be elected: visibility, credibility and no perception of desperation or lack of cool factor. This obviously relates to the target group you want to attract (since credibility and coolness are different things to different people).

The election strategies were quite divergent:

1. The Centre Party relied on their base of ethnic Russians, so they touted their achievements (free public transport, social benefits) and used Tallinn’s coffers to promote them. In a typical day during the run-up to the elections there would be three or four openings of different buildings or roads. The most egregious of them was the opening of the Ülemiste crossing for which a giant plastic doll was constructed at a considerable expense. This meant that it defined the elections, both in a good and bad light, and thus ensured constant media attention. This allowed them to have constant visibility, their previous reign had shown their credibility as to their governing ability and their electorate perceived them mostly as a rebel underdog trying to fight for their rights and interests. Thus very good results was ensured, despite, maybe even because of their constant vilification in the national media.

2. Conservative IRL had the most energetic strategy which was built on attacking corruption in Tallinn and aimed to represent the ethnic Estonians in Tallinn. The campaign was highly visible thanks to a hot-tempered candidate Eerik-Niiles Kross with a past in intelligence agencies and national defence who seemingly did not care much about traffic rules, paying taxes on time or having been accused of piracy by Russia. The attacks on Savisaar, however, seemed to have no other substance than some sort of calculation of the cost of corruption, which was never clear. They attacked the way Savisaar governs, indirectly Russians. Thus IRL stoked national tensions and ensured no significant Russian votes for anyone, but Savisaar. Their aggressive guerilla campaign provided visibility and brought them up as the main foe of the Centre Party. He was cool and credible mostly because the media refused to scrutinise him in any significant way.

3. The Reform Party, which is the main government party, had lost a lot of steam. Their strategy was to run a positive, soft campaign on the theme of “Proud of Estonia”. They probably considered Tallinn to be a lost cause, which is why their message targeted mostly places outside of Tallinn, where they were in power. They were also embroiled in a party financing scandal recently and thus thought a good idea to lay low for a while. This of course meant that their popularity plummeted not only in Tallinn, but in Estonia as well. The soft, positive campaign was contrasted with a desperate attempts to get some sort of traction in Tallinn, which included a fake-FEMEN stunt and the idea to plant more than hundred thousand trees to Lasnamäe. There were no credible new ideas and they were simply overshadowed by Centre Party vs IRL fight. The cool factor, which Reformierakond had always had, was lost due to desperation and governing fatigue (they have been in power in the country since 2005). It remains to be seen whether they will be able to turn around their slow stagnation with fresh ideas.

4. Social Democrats were with great potential, but, as usual, blew their chances. Their strategy was even less visible than Reform Party’s and consisted of the idea of winning Tallinn first and national parliament second. Now, if they had received some sort of traction in Tallinn, that would have been great, but now it seems that they have lost the wind from their sails due to the meager results in Tallinn. Social Democrats had enjoyed a high level of support in between of election, their strategy being doing nothing to piss anyone off. That does not work during elections. So instead of fresh ideas, they offer nothing. The Social Democrats have also always had a credibility problem and their reputation is not particularly cool either.

5. Electoral unions: I do not believe in them as a principle (though I do like many of the individual persons). I do not think long-term impact and democratic governance is possible by ad hoc groups of people who are united only in their anti-establishment and anti-political party views. It reminds me of the Simpsons episode when Mensa club started to govern Springfield and how that turned into a chaos quite quickly. Like it or not, representative democracy is based on political parties and rather than trying to destroy them or bully them, citizen activists should try to help them to overcome their issues and become stronger, more democratic and more responsive. There is ample room in all parties for change and bright people, wasting resources on ad hoc electoral unions is not a sustainable way forward.

It seems that Estonian politics have become rather entrenched and stable. No big changes happen unless the ethnic divide between Estonians and Russians is overcome. Then and only then we can say that our representative system is also sufficiently democratic. Parties have to work harder and become much more inclusive, representative, smarter and professional in what they do, otherwise the elections are going to be a farce-like experience with no winners, and only losers.

How democratic is Estonia?

One way to look at how democratic a country is, is to look at who is represented in the government and parliament and whether this reflects the diversity of the population in the country. Having a diverse group of people in government helps to legitimise the government in the eyes of the minorities and brings better results overall.

The results of the recent census allows to look a little into how well the diversity of Estonian population translates into the mix of people who govern Estonia. I have decided to use just a few charts to show the situation regarding certain areas (all data from Statistics Estonia 2011 Population and Housing Census). Let’s start with citizenship.

Citizenship

As can be seen from the chart, there are more than 190 000 people living more or less permanently in Estonia (ca 16% of population) who do not have Estonian citizenship. These people are not able to vote in Estonian parliamentary elections (although most of them can vote in the local government ones). Non-EU citizens are also not allowed to belong to any political party.

I have deliberately separated the EU citizens living in Estonia from other non-citizens, because their rights are quite well protected by EU law as well as Estonian law. The ca 185 000 non-citizens (more than the total population of Tartu and Narva combined) have mostly, however, Russian (non-EU) citizenship or are stateless.

Obviously, there are no non-citizens in the government or parliament so it is pointless to make these charts.

This means that there is a sizeable part of society that lack any output in national political context. None of the political parties are interested in representing them, because they cannot vote. They do have a strong link to Estonia, as many have been born here and lived here for many years (more than five years, which is generally the legal requirement in the EU to show integration into host Member State). They pay taxes and contribute to the society.

Gender

The gender pay gap is the highest of the EU in Estonia. Things are not much better when comparing political representation. When roughly half of the population is female, only 22% of Members of Parliament are female and only 8% of government ministers (one person). It does not seem that women are well represented in our democratic political system.

Ethnic origin

This category is difficult due to problems with source data, but also the fact that people may identify with multiple ethnic origins. According to the census data, there are people from 192 different ethnic nationalities living in Estonia, with largest groups being Estonians and Russians. Now, it is not easy to find out the ethnic nationalities of members of Riigikogu, but I guesstimate that there are fewer than 25% of ethnic Russians in the Parliament. In government, it is rather easy to see that all of the ministers are Estonians. I might be mistaken, but since re-independence, there has been only one government minister who is not Estonian (Eldar Efendijev who was minister of population 2002-2003).

Other

There are a number of minority groups, which might have issues with political representation (there are no openly gay members of parliament or government, for example). There are only a few people with disabilities in parliament and none in government (at least that we know of).

These are issues that should be addressed in our democracy. Of course it is not possible to mirror in parliament and government exactly the diversity in society, that would be a completely ridiculous exercise, but more should be done to discuss and address why certain groups in society are more and certain groups less represented. In terms of success of the society, the less there are opportunities wasted, the more voices heard, the stronger and better the democracy is. By cutting certain people off from political representation, the whole society loses.

What’s wrong with Rahvakogu?

A new web-based portal has been created in Estonia, called Rahvakogu (People’s assembly in English). It is described as “an online platform for crowd-sourcing ideas and proposals to amend Estonia’s electoral laws, political party law, and other issues related to the future of democracy in Estonia.” The web-based portal is the first step in a process dedicated to amending Estonia’s laws regarding elections, political parties, their funding and inclusion of civil society. In January the ideas are gathered, in February they will be analysed by experts and in March they will be debated at town-hall like events after which they will be presented to the Riigikogu (Estonian Parliament). It is backed by Estonian Cooperation Assembly (an institution hosted by the President mainly dealing with publishing the Estonian human development report and several NGOs). The process got started after a financing scandal concerning the ruling party Reformierakond and subsequent denials by the people involved.

As a disclaimer, it should be mentioned that the things that came up in the scandal were bad and shocking and should receive a response. It is not clear whether the stepping down of the Minister of Justice was an adequate remedy, but it seems that parties will not engage in similar shady deals any longer. One should also not feel anything but great respect towards everyone who have been pressuring those who lied and who want to change the system to be better. In a democracy that is what has to be done, the governing system is never going to be perfect, nor will there ever be perfect politicians. Political party financing scandals are common in all democratic countries, big and small.

It is great to have more people contributing to a democratic governing system. As time goes by, new forms of governance are also appearing, including multilevel and network governance systems, taking into account the multitude of actors involved in governance. That is especially true in the context of the European Union, but also in the level of the state, the local governments, multinational companies, etc. It is great to have more inclusive, more participatory democracy in which politicians are not the only ones with competence or influence.

However, Rahvakogu as a response to the crisis is misguided at best and dangerous at worst.

First, Estonian democracy is at a stage in which it is important to focus not on the “will of the people”, but on the protection of minorities and human rights. Estonia has built up in 20 years a fairly good system of government in which the will of the people seems to translate into policies and rules. There is no election fraud, there is a free and unfettered media, the governing system is one of the most transparent ones I have encountered. You are able to have your say and argue your case. Things are not so good when it comes to understanding that majority is not everything. The classic case is the abolition of the death penalty, but there are also cases like equal rights for same-sex couples, etc, which are not supported by the majority of the population, yet they are something that needs to be done. A modern democracy not only translates the will of the people into policies and laws, but also does this in a way that takes into account human rights, including the rights of the minorities. Otherwise it is a “tyranny of the majority” or ochlocracy or mob rule.

The Constitution is there for a reason. It sets up fundamental rights and the basic governance system, including the institutional set-up as well as law-making processes. It limits the power of those who make rules and protects those who might be impacted.

Rahvakogu takes place outside of the constitutional framework. Because of the context in which it was created, it has huge popular support, which means that it has or at least appears that it has legitimacy. This legitimacy is based on the people and institutions involved, but also the support of the media and the context of perceived failings of the exisiting democratic system. This means that when those Rahvakogu proposals appear in front of the parliament, they carry a lot of importance and support so that it will not be easy for any parliamentarian to say no to them. This means that Rahvakogu becomes kind of ad hoc de facto alternative to the parliament, which is definitely not compatible with the Constitution.

Perhaps I am exaggerating the situation and things are not that bad (they are not that bad yet). However, looking at what has happened in Hungary, one should be very careful. The statements attributed to the people involved in the process have also been worrying. The Charter12 that was a kind of manifesto also contributing to the creation of Rahvakogu includes a passage that states:

A new social contract is needed. Neither the President, the Riigikogu or the Government have shown their desire to change the situation. If the system is incapable of reforming itself, then in order to execute its will and exert pressure, civil society must convene an alternative institution, dominated by representatives of civil society.

So my main argument against Rahvakogu is that it hurts rather than helps Estonian democracy. It tries to fix small things about financing political parties, putting into danger much bigger things like our legitimate democratic institutions. It promotes an understanding of democracy as unfettered rule of the people rather than responsibility that comes with it.

There are a number of other concerns:

1. The process only includes a certain segments of the society. The website is not available in Russian or English, thus leaving out those people who are Estonian citizens or who just live here for a longer time. It shows that when it comes to important social issues, Estonia is still monoethnic and monolingual country (obviously people with no internet do not deserve to have a say as well).
2. The process is opaque. It is beyond bizarre that a process that calls for more democracy lacks basic transparency (i.e. who are the people involved and how, financial issues etc).
3. The hastily organised system is neither well-funded nor thought through. The analysis and impact analysis of proposals will be done supposedly by volunteers for free in a month.
4. E-democracy is great, but it should still be democracy. Technology should be made to serve people, rather than be a thing in itself. Many people involved seem to still have this faith that technology will be the solution to all of our problems. The problem is in us, so the solution is in us as well.
5. There is very little to no criticism of the process in the public discourse, probably out of fear of being unpopular. The people involved are also seem to be taking an arrogant, superior position (specifically the head of the Estonian Cooperation Assembly).
6. It is a diversion from more pressing issues that are crucial for the further development of Estonia (aging population, migration, future of EU). So many people (now also myself) have spent so much time and effort on this, other pressing matters receive little or no attention.

It might be that the above is just an unfounded fear and I should start wearing a tin-foiled hat, perhaps my professional background as a lawyer makes me think in a specific way, but I am really worried about what is going on. I am not sure if it would be worse if the whole thing fails or if it is successful.

Update 13 January 2013

Some more thoughts:

1. There is also the connection of the President to the process, which runs against the idea of separation of powers. The process is mainly managed by Olari Koppel from the Estonian Cooperation Assembly, an institution, which is attached to the Office of the President. Mr Koppel was very recently a senior member of the President’s staff. Also mentioned on the list of collaborators on the project is the Legal Adviser to the President Ülle Madise. A well respected scholar as well as civil servant, I do not think she would get involved in anything that is legally questionable. However, if there is a proposal that comes through from Rahvakogu, it is confirmed by Riigikogu and then it comes to the President’s desk for signature (the President can refuse to sign those drafts into law which he thinks are unconstitutional). Does the President stop the law and what happens if he does or does not do it? (Paragraph edited for clarity on 13 January 2013, at 14:47)

This is a serious issue, as many of the proposals (even those that are presented by “reasonable” people) are possibly contrary to international human rights standards and basic democratic concepts (limitations on political speech, getting rid of equal votes by giving parents and extra vote, etc). The process needs to be such that things such as these do not go through.

2. I will expand a little on some of my short points of concern (my main critique is still the potentially harmful impact to democratic institutions and the democratic process, as elaborated above):

2.1. Laws should never be made according to strict time-pressure. The current schedule is way too tight for even the best minds to go through them in a meaningful way. Considering that there is a lack of competent social scientists in this country (mostly due to lack of adequate funding for social science research), it remains to be seen if the smart-sourcing part really is that smart. Smart legislation requires years long process of getting input from stakeholders and the general society, analysing its impact and then having a debate about it. Doing all that in three months for the hundreds of proposals seems like a mission impossible for me. Especially when there is no financing available. And if there was financing for the analysis, then would it not be correct to organise a public procurement for this, so that the best offer can win (this alone might take three months).

2.2 The fact that there is a list of names on the Rahvakogu website does not make the process transparent. We would not accept if the government only published names of officials and not what they do and what they are responsible for. The fact that we know that there might be 20 000 euros allocated for the process does not make it transparent if we do not know how it is going to be spent.

2.3. The problem is not that there are not enough ideas to make things better in terms of elections and political parties and their financing. The ideas are there and have been there for a long time. Therefore crowdsourcing is quite unnecessary, what is necessary is to enact those amendments. They can be legitimately enacted only following the democratic process and not by bullying the political parties through Rahvakogu to accept them, thus threatening the democratic foundations of this country. This time it might be the ‘good’ guys doing it for a ‘good’ cause, but the same thing might be repeated by people with other motivations in the future.

2.4. The distinction between Rahvakogu and other portals such as the failed Täna Otsustan Mina (Today I Decide) or Petitsioon.ee is quite clear. The former was set up by the government, thus being clearly a part of the democractic process with all the democratic safeguards intact. The latter is a private undertaking for different proposals, one that is neither endorsed by the President nor run by a public organisation, and there can be many such portals, if people wanted to start them up. Most importantly, however, it is the context in which Rahvakogu came to be which might be dangerous. At any other time, it would not have the same impact or perceived legitimacy as it has today.

ACTA, innovation and human rights

The Estonian Prime Minister Andrus Ansip today in the Estonian Parliament ridiculed people who are against the controversial Anti-Counterfeiting Trade Agreement (ACTA). He accused them of paranoia and suggested they wear tinfoil hats and that they have eaten some bad seeds. This seems rather unusual for a top European politician, while Polish and Czech governments are reconsidering their support of ACTA.

For me this is not about paranoia or mob-mentality trying to ruin a perfectly reasonable international agreement. There is a legitimate concern that ACTA, while strengthening the global protections against counterfeiting, will also result in less protections for some of the most fundamental human rights. There have been also people like Linnar Viik saying that rather than helping young new startups, it might stifle them in a difficult-to-navigate labyrinth of intellectual property rights. Instead of fostering innovation and creativity, ACTA might instead will be used to try to fight innovation and preserve business models, which are long overdue to be dismantled. Of course, it is difficult to say what will be the actual impact of ACTA, because much of it depends on the interpretation and implementation of the agreement.

Intellectual property rights are a legal construct, created by people for people for specific goals (to provide creators and inventors incentives to create and invent). Thye give certain exclusive rights (monopolies) to use and licence etc. However, any intellectual property reform will be fought by the monopolies that have been created as they will lose their business even if different system might make more sense for the society as a whole. I refuse to believe that if we were to start afresh with the IPR framework, we would end up with anything remotely similar to the terrible mess we are in today. As a lawyer I feel sorry for my profession as instead of trying to enable and support actual innovation and creation (which in today’s world is usually built upon exisiting technologies or art) we as lawyers mostly work to try to prevent and stop the spread of technology. Fortunately there are some like Karmen Turk or other people at Estonian law firms who see that the IPR system needs reform. (A sidenote: Tallinn Law School will begin from Autumn 2012 with a new Master programme in Law and Technology where these issues can be studied and researched in depth.)

Human rights are in a way very similar to intellectual property rights. Both got started internationally after WWII and reached real global acceptance in the 90s after the collapse of the Soviet Union. After that time both human rights and intellectual property rights have spread internationally all over the globe. However, IPR are usually supported and promoted by multinational corporations whereas human rights do not have such wealthy and organised proponents. At the same time, human rights are at least in most countries considered far more fundamental than IPR.

Intellectual property rights can be also considered human rights, as right to property is also recognised as a human right. However, the case-law of European Court of Human Rights so far has emphasised other rights such as freedom of expression or freedom of speech as more fundamental to the functioning of a democratic society than property rights. With ACTA this balance is under threat.

If there is a choice to have ACTA or not have it then it is for sure better to not have it. What we would rather need more is a global freedom of movement of information agreement, protecting internet from unreasonable interference from states. The European Commission a few years ago proposed to add free movement of knowledge to the EU’s current four fundamental economic freedoms (goods, persons, services, capital). I think that would do much more for both European competitiveness as well as helping creativity and innovation. Sadly, not much has been heard about this idea after 2008.

A new constitution for Estonia

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.

Causes are not excuses

In light of recent extraordinary criminal activity (mass killing in Norway, looting and riots in London, also the gunman at the Estonian Ministry of Defence) there have been calls not to look at the causes of these crimes. These actions have been deemed by some as mad or crazy acts which supposedly took place irrationally, from some sort of natural evil that surfaces from time to time. Those acts might have been desparate and committed by people who are not sane and they are, of course, criminal, but that should not prevent us from looking into why these actions were taken. What was it that has driven some members of the society into these horrific actions against their own societies? As a side note, it is interesting to observe that although the preoccupation of governments have been focused on how to react to an outside terror threat, these actions have been taken by the citizens against their own state.

I do not advocate shifting the blame from the individual who committed the crime to the society on the whole. It is clear that those individuals who were proven to commit a specific act deserve to be punished according to the law. However, in order to prevent such acts in the future, it is important to look at and analyse the causes of these events. The society should also look into things that are wrong and try to remedy these. This way, the horrific events could be turned into possibilities to make a better society. This does not mean that we somehow reward the criminals, because the motivation should not be fear of someone doing something similar again, but to eliminate the root causes of these actions.

Some people (especially those who like to see things in black and white terms) think that there are people who are evil and that is that. Those ‘evil’ people need to be tracked down and put to prison or even killed. That is not the way I look at things. I think people and life in general is much more complex. Goodness and evil are subjective, relative terms that could, at best, relate to specific actions in a specific ethical or moral framework, but not really to the whole of a person.

Faced with complex set of issues that shock or frighten, people tend to seek for strong leaders with simple, harsh measures. However, I think it is best to analyse the situation and also look at the root causes of these criminal events. Trying to ignore problems will not make them go away.

Truths and lies

Two different media stories have almost monopolised Estonian public discussion lately: the opinions of Jaak Aaviksoo regarding the need of the state to hide some truths or even lie for self-preservation purposes and the more recent brouhaha surronding possible doping use by Estonian cross country skiier and two-time olympic medalist Andrus Veerpalu. In addition to that I became aware of how easily malicious rumours can spread, when Tallinn Law School (where I work) became target of misinformation campaign this week. All those seemingly different things have one thing in common: they relate to truth, and acceptability of lying.

Speaking the truth is closely related to trust and transparency. Governance needs trust and transparency to be democratic and legitimate. Professional sports need the same values in order to preserve the notion of fair play and to attract interest of supporters. It would be difficult for me to place trust in an educational institution or people involved in higher education that resort to lies and dirty tricks to achieve their goals.

In the long run honesty is still the best policy, although in the short term some people might think that desperate or extraordinary circumstances merit spreading of lies. These people are wrong, because the short term lies create long term distrust and we need to have a society where there is less distrust and more trustworthiness.

Stable and prosperous democracy can in my opinion be built only based on mutual trust and trust of important state or private institutions. It is a shame that some people in our society still are willing to sacrifice these things for personal short term gains.