Same-sex partnerships in Estonia – state of play

On 9 October 2014, the Estonian Parliament narrowly adopted the kooseluseadus (Registered Partnership Act), which enables two persons to register their partnership, regardless of their genders. This means that for the first time in Estonia, people who are gay, lesbian or bisexual can enjoy many of the family related benefits and rights that married couples have (marriage is currently only available for different-sex couples).

However, due to concerns that an absolute majority of the parliament (i.e. 51 votes for out of 101 members) was not reachable at that time, those provisions which required an absolute majority along with implementation related changes to other laws were not included in the adopted law. According to the Estonian Constitution, certain areas of regulation need to have an absolute majority, in this case matters related to court proceedings and registers, as well as citizenship issues were the ones which required 51 votes for. The partnership law indeed passed last year with a simple majority of 40 votes for and 38 against, but the matter of passing the implementing acts was delayed until after the parliamentary elections in March this year.

When the implementing acts were initiated by 38 members of the parliament mid-October, they only narrowly stayed in the legislative process after the first reading on 25 November 2015 with 41 MPs voting for and 42 against dropping the implementing acts from the Parliament’s agenda.

Based on the vote in the first reading, here are the positions of different parliamentary factions on the law:

Supporters:

• Reform Party (30 seats in the Parliament, right-liberal, EU level affiliation ALDE): supports the adoption of implementing laws, but has left the vote open in the Parliament, 25 MPs voted for the acts to stay in the process, 3 did not vote, 2 were not present. Has not taken the lead role as it is also mindful of the position of the coalition partner IRL.
• Social Democratic Party (15 seats, centre-left, EU level affiliation S&D Group): has been the foremost supporter of registered partnerships and considers it an important issue. In coalition government with Reform Party and IRL. All of its MPs voted for the implementing acts to stay in the legislative pipeline.

Against:

• IRL (14 seats, centre-right, EU level affiliation EPP): is mostly against, as it blames its loss of 9 seats in the last elections on not standing against the act strongly enough in the previous composition of the parliament. Allowed its MPs to vote freely, and one MP voted with the supporters of the act (11 voted against, 2 did not vote). In coalition government with Reform Party and Social Democrats, currently polling as least popular of all the parties in parliament, with single-digit support.
• EKRE (7 seats, far right): considers opposition to gay partnerships one of the reasons for its electoral success, aims to use it to gain further support. All members voted against the implementing acts.

In between, but leaning against:

• Centre Party (27 seats, centrist, EU level affiliation ALDE): mired in internal power struggles and corruption court cases, as well as long-term marginalisation by other mainstream parties, they have not had a consistent position on the law and also allowed a free vote. Its electorate Estonian Russians are more socially conservative than average Estonians. 16 MPs voted against the law, 6 did not vote and 5 were not present.
• Estonian Free Party (8 seats, conservative?, new party): still looking for a place in the political spectrum, the party proposed its own watered-down proposal that would only apply to same-sex partnerships. 7 members opposed the implementing acts, 1 voted for them to stay in consideration.

In order to obstruct the process of adopting the implementing legislation before the Registered Partnership Act is due to become in force on 1 January 2016, EKRE and Free Party proposed more than 300 amendments to the law. Most of the amendments are meaningless or repetitive and serve the purpose of delaying the discussion of the law. The Legal Affairs Committee of the Parliament was not able to go through all of them so the implementing legislation is not adopted this year and an unpredictable legal limbo has developed.

What has lead to this?

The adoption of the partnership act as well as its implementing acts have not followed the usual route of legislative process. The governing coalition government has not put its full weights behind the law and its implementation; it has been introduced most irregularly by MPs themselves. The issue was omitted from the coalition agreement and the law is one of the points of contention among the coalition partners. The Reform Party has taken a passive approach, preferring to work behind the scenes and not make the passing of the implementing legislation their priority, in fear of losing the support of more conservative elderly voters.

The results of the parliamentary elections meant the addition of two new parties to the parliament is a factor, because electoral volatility could be one of the reasons of less progressive stances on the issue (see Pelz). The conservative vote was essentially split into three, with IRL, Free Party and EKRE all fighting in a crowded conservative space. This makes it more difficult to agree on a compromise. EKRE sees their vocal opposition to the law a chance to gather support for themselves so they have nothing to gain from any kind of compromise.

A longer analysis of the whole process could also be interesting, because the communication decisions made at the introduction of the law (trying to downplay the same-sex part of the act), not having clear and persuasive messages, not sufficiently involving the LGBTI community or other NGOs have all contributed to the situation as it is. The powerful and well-funded counter-campaign by conservative-religious activists and lack of resources and strategy of supporting activists, have also had a considerable impact to how the issues have been framed.

What happens now?

There are several options after the Registered Partnership Act comes into effect in Estonia on 1 January 2016 (i.e. in less than three weeks). As there are no implementing acts, there is going to be considerable confusion initially, but Estonian officials are surely creative enough to be able to find ways how to implement parts of the law without having the implementing legislation (i.e. the notaries will be able to register the partnerships), at least if there is enough will to do it. If there are hiccups in some aspects, these will probably solved in courts or by some ad hoc solution, but there is a strong likelihood that some things remain in a serious legal limbo. In terms of legislation, there are the following options:

1. Only those implementing acts will be adopted early next year which require a simple majority. This is at the moment the most likely outcome, which leaves some of the more important issues (like intra-partnership adoption) to be fought for in courts unless an alternative solution is found. The changes that need to be made will remain for future consideration.
2. The implementing acts will not be adopted at all. This means a lot more uncertainty than option 1 (and also more options for court cases).
3. The implementing acts will be adopted in full. In this case most issues will be solved and the topic will not be returned to until and if there is interest in making marriage gender-neutral, which would not  probably be in the near future.

Could the whole partnership act be annulled?

The Registered Partnership Act cannot be lawfully annulled by the Parliament. Although there are a number of MPs working to annul the act, they do not have enough votes to do it. Even if they did, this would be a breach of the European Convention of Human Rights. It is one thing if the state is not making a positive step of granting same-sex couples equal rights, but a whole another thing if the state deprives those couples of the rights that they already have from 1 January 2016. ECHR case law is quite clear on this and because its jurisprudence is part of Estonian constitutional law, the annulment of the Registered Partnership Act would be clearly unconstitutional. Thus the President would not confirm such an annulment and if there is a referral to the Supreme Court, it would simply confirm the ECHR case law so that the law cannot be annulled.

The only constitutional option to get rid of registered partnerships now is to open up marriage, which in Estonia is a secular institution and constitutionally not limited to a man and a woman (as it is in many other Central and Eastern European states) or offer another, equally good or better solution (which is why a watered down version cannot work as a compromise). In that case, registered partnerships could be slowly phased out (i.e. people could choose to convert them to marriage and no new partnerships would be registered). There is some support for that option, but it is not clear how serious it is. It would surely be pragmatically the best way out of the whole situation.

Further reading:

Overview of the Civil Partnership Act at Estonian Human Rights Centre website.

Full text of the Civil Partnership Act in English.

Pelz, Michael. “Europeanization, Party Systems, and LGBT Rights: The Cases of Estonia, Latvia, Montenegro, and Serbia.”

How state aid killed Estonian Air

The abrupt but expected end of Estonian Air on 8 November 2015 was due to serious breaches of state aid rules. By ‘rescuing’ the airline, the Estonian government instead committed several sins, which were easy to foresee for anyone who have even the slightest understanding of that area of EU competition law.

The aid was to rescue an airline that was not profitable for 10 years, it was given multiple times after several unsuccessful attempts at different business strategies. Sustaining a business which would fail under market conditions is a sin in a market economy. A healthy marketplace is one where innovative and efficient companies grow at the expense of obsolete uncompetitive ones. By giving aid, Estonian government helped a company that should have gone out of business years ago to remain operating. This means that the more efficient companies had no possibility to compete on a fair basis (hence the reason why Tallinn Airport has seen very little competition from other airlines). By giving this unfair advantage to Estonian Air, Estonian government impeded the normal functioning of the Tallinn flight passenger market, a distortion that is not in the interests of consumers.

This means that not only that Estonian taxpayers had to spend a huge sum as an illegal subsidy to a company with no viable business model (money that could have been better spent), but that also everyone flying to and from Tallinn Airport have had to pay significantly higher ticket prices (or not be able to enjoy lower prices). Lack of competition also meant lower interest in entering the market.

State aid is something that is given only in last resort, if nothing else works, but the company can still be viable. It was quite obvious that there is no way that Estonian Air could be viable (no such realistic business plan existed). However, by giving the company state aid, it created conditions where the company did not need to have realistic business plans. Instead, it sends the company a message that however crazy and unrealistic plans there are, the state will in the end cover the losses. This induces reckless and extreme risktaking behaviour (cf Taskila plans). This is why the ‘one time, last time’ principle is so important as it really means that the state aid is there for this one time.

State aid to a non-viable company is also unfair towards other Member States. What if all Member States behaved like Estonia? A subsidy run to the bottom in which all Member States start pouring public money into airlines that would never stand a chance in an open market would be a huge waste of resources. It also undermines the great achivement that is the single European aviation market, which has only existed for less than two decades and has brought so many benefits.

The establishment of a new company with the exact same routes, by the same owner, using again public money seems to me to be another attempt to flaunt these rules. If this company fails in a year or two, will there be another 40 million euros spent on another airline and then another? Why? This does not seem to be following the essence of these rules, and specifically the ‘one time, last time’ rule.

In my opinion, the European Commission has been too lenient in the Estonian Air case, by delaying the obvious decision for so long.

One more important thing.

EU state aid law does not have public enforcement mechanisms (i.e. the European Commission) only, there are also private mechanisms available. This means that there might be claims for damages against the Estonian state by other airlines that have suffered because of this illegal aid. This means that airlines that have had to compete unfairly against the one that has received illegal state aid (i.e. Air Baltic, Finnair, Lufthansa, Ryanair) could claim under national law damages from the Estonian government. Estonian Competition Act is brief on this, but states in § 78 that “[p]roprietary or other damage caused by acts prohibited by this Act shall be subject to compensation by way of civil procedure.” If I were any of these competing airlines I would seriously consider bringing a civil claim in an Estonian court for damages against the Estonian state for giving illegal state aid to Estonian Air. Because the breaches were fairly obvious and very grave, it could well be worth the effort.

Minu nägemus soolise võrdõiguslikkuse ja võrdse kohtlemise voliniku institutsioonist

This post is in Estonian and includes my vision for the development of the Estonian equality body Gender Equality and Equal Treatment Commissioner, a position for which I was running for, but in the end was not successful.

Avaldan oma visiooni sellest, milliseks oleksin soovinud kujundada võrdõigusvoliniku institutsiooni juhul kui oleksin osutunud valituks. Ehk leiab tulevane võrdõigusvolinik sellest kasulikke ideid, mida ellu viia.

Minu nägemus soolise võrdõiguslikkuse ja võrdse kohtlemise voliniku institutsioonist minu ametiaja jooksul

Esitan visiooni sellest, milliseks kujundan võrdõigusvoliniku institutsiooni.

Soolise võrdõiguslikkuse ja võrdse kohtlemise volinik on Eesti riigihalduses ebatavaline asutus. Tegemist on Euroopa Liidu õigusest tulenevalt loodud sõltumatu institutsiooniga, mis tekitab pingeid aga ka erilisi võimalusi. Voliniku sõltumatus loob unikaalseid väljakutseid nii töö korraldamisel kui sisuliste küsimuste lahendamisel.

Voliniku institutsioon on olnud algusest peale alarahastatud, mis näitab, et vähe on olnud poliitilist tahet anda eesmärkide saavutamiseks vajalik minimaalne ressurss. See on olnud seotud ka soolise võrdõiguslikkuse ja võrdse kohtlemise teema pealiskaudse omaksvõtuga poliitilise eliidi poolt ning senise vähese prioriteetsusega. Seda arvamust saab muuta tulemusliku töö ja vajalikkuse selgitamisega, aga voliniku eelarvevahendite tagamine vähemalt sellel tasemel nagu see institutsiooni loomisel 2008. aastal Riigikogule esitatud seletuskirjas ette oli nähtud (ca 280 000 eurot aastas), on esmatähtis.

Võrdõigusvolinik on minu nägemuses kõigi inimeste võrdsete inimõiguste tšempion ja “tark mees taskus”, kes aitab riigil ja ühiskonnal võrdõiguslikkuse teemasid avada ja mõtestada ning liikuda võrdõiguslikuma ühiskonna suunas.

Milliseks voliniku institutsiooni kujundan?

Võrdõigusvoliniku eesmärk on saavutada muutus inimeste hoiakutes ja käitumises. Seda saab teha vaid juhul kui ka voliniku institutsioon on ühiskonnas mainekas ja seda nähakse vajalikuna. Ametisse asudes panen paika konkreetse tegevuskava, konsulteerides enne laia ringi inimeste ja organisatsioonidega. Suur osa konkreetsest tegevusest sõltub ka olukorra arengust Eestis, sest volinik peab olema võimeline reageerima võimalustele, mida erinevad sündmused ja arengud pakuvad, et neid oskuslikult võrdõiguslikkuse edendamiseks ära kasutada.

Olen olnud edukas, kui viie aasta pärast saab võrdõigusvoliniku institutsiooni iseloomustada järgnevalt.

1. Voliniku roll ühiskonnas: mitte näpuga vibutav järelevalveametnik vaid igaühe abiline teekonnal võrdõiguslikuma ühiskonna suunas.

Voliniku kuvand on olla pigem soolise võrdõiguslikkuse ja võrdse kohtlemise valdkondade strateegiline eestvedaja kui järelevalveametnik. See tähendab, et volinik peab olema võimeline teemat ‘müüma’ teistele olulistele riigi-, era- ja kolmanda sektori liitlastele, kellega ühiselt tulemusi saavutada. Hea näide on minu juhitud “erinevus rikastab” projektide raames loodud mitmekesisuse kokkulepe, mis ühendab pea 60 ettevõtet ja organisatsiooni, mis on seadnud mitmekesisuse ja kaasatuse esiplaanile.

Volinik peab tingimata jätkama kaebuste osas ekspertarvamuste andmist, proovides samas leida võimalusi arvamuse andmise menetlemise kiirendamiseks, tehes koostööd valdkonnast huvitatud advokaatide ja juristidega. Juba antud arvamuste põhjal saab voliniku institutsioon välja töötada lihtsad juhendmaterjalid erinevatele sihtrühmadele erinevates olukordades tegutsemiseks (näiteks tööandjatele juhis kuidas vältida diskrimineerimist värbamisel).

Strateegiliste kaasuste osas ei tohi volinik võtta liiga suuri riske, vaid hagelema ainult neid kaasusi, mida on võimalik võita ja mille kaudu ka ühiskonnale teemat paremini avada. Arvan, et volinik võiks hageleda kahe-kolme hoolikalt valitud strateegilise kaasusega aastas. Inimõiguste keskuses oleme teinud advokaatidega väga tihedat koostööd strateegilistes kaasustes, mis puudutavad varjupaigataotlejaid ja tean, et varasemat on ka voliniku bürool mitme advokaadibürooga hea koostöö. Vaid töövaidluskomisjonides saadud vastustest ei piisa, vaid tuleb edukalt hageleda kõigis kohtuastmetes.

Loon voliniku institutsiooni juurde nõuandva koja, kuhu palun erinevate ühiskonnagruppide esindajaid, et saavutada parem ülevaade rohujuure tasandil toimuvast ning tagada tegevuse laiapõhjalisus. Nõukoja liikmed seostavad kogukonda ja voliniku institutsiooni, aga saavad täita ka voliniku tegevust toetavad kõneisiku rolli.

2. Voliniku institutsioon: jätkusuutlik, ettevõtlik ja uuendusmeelne.

Voliniku tegevuseks ei ole seni eraldatud piisavat ressurssi, sest ühiskonnal ja riigil on olnud raske aru saada selle vajalikkusest. Investeeringut voliniku institutsiooni tuleb vaadata seemnerahana, mille abil tõmmata muutuse läbiviimisse kaasa teisi ja mille abil volinik saab osaleda ja mõjutada muude ressursside kasutamist. Seega peab volinik ka adekvaatse rahastuse korral leidma võimalusi väheste vahenditega suurt mõju saavutada. Seda on võimalik teha sünergiat leides teiste nii avaliku kui erasektori organisatsioonidega, sealhulgas ka sotsiaalsete ettevõtetega.

Tehnoloogia on üks valdkond, millele voliniku tegevuses suurt tähelepanu kavatsen pöörata. Volinikuna pööran tähelepanu info- ja kommunikatsioonitehnoloogiatele, et neid senisest enam võrdõiguslikkuse edendamiseks saaks kasutada. Sealhulgas otsin võimalusi koostööks Eesti IKT sektoriga, et töötada välja lahendusi senisest tõhusamaks diskrimineerimise vastu võitlemiseks ja mitmekesisuse edendamiseks. Hea näide on minu ideest alguse saanud Garage48 Enable hackathon, mis keskendus puuetega inimestega koos ligipääsetavust võimaldavate tarkvaralahenduste loomisele.

Erinevus rikastab kampaania käigus oleme välja töötanud mitmeid uuenduslikke kampaaniaid ja lahendusi, millest saadud kogemused toon ka võrdõigusvoliniku töösse (nt Berlin-Yogyakarta virtuaalnäitus (vt www.erinevusrikastab.ee/berlin-yogyakarta, diskrimineerimiskompass www.erinevusrikastab.ee/kompass). Inimõiguste keskuses lõime auhinnatud Pagulase teekonna www.pagulane.ee. Voliniku kohalolek ja tegevus sotsiaalmeedias ja internetis laiemalt suureneb minu ametiajal märkimisväärselt, rohkem tuleb kasutada audio-visuaalset kommunikatsiooni, näiteks videokokkuvõtteid muidu keerulistest õigusalastest tekstidest.

3. Volinik teeb tihedat ja tulemuslikku koostööd.

Voliniku amet tuleb oluliselt enam sisuliselt ja formaalselt sotsiaalministeeriumist lahti siduda, jätkates samal ajal sellega tihedat koostööd. Kõige rohkem arengupotentsiaali näen koostöös haridus- ja teadusministeeriumi ja kultuuriministeeriumiga, vastavalt hariduse ja lõimumise valdkondades. Senisest suuremat tähelepanu tuleks pöörata ka kohalikele omavalitsustele, kus pilootprojektina erinevaid algatusi läbi viia ja kellega koostöös üle Eesti nõustamist pakkuda.

Voliniku strateegilisteks partneriteks on minu arvates: õiguskantsler (kellega saab tegevust koordineerida ning strateegiliselt tegutseda); sotsiaalministeerium ja kultuuriministeerium (kuna tegelevad võrdse kohtlemise ja soolise võrdõiguslikke valdkonnas õigusloomega); rahandusministeerium (kuna tegeleb riigiametnike koolituse ja riigieelarvega koostamisega); justiitsministeerium (kuna tegeleb inimõiguste üldise järelvalvega); haridus- ja teadusministeerium (kuna tegeleb haridusvaldkonnaga); inimõiguste kaitse, vähemuste ja naiste esindusorganisatsioonid (sh võrdse kohtlemise võrgustik); tööandjate ja töövõtjate esindajad (nii tööalase diskrimineerimise kui ka mitmekesisuse edendamise mõttes).

Olen ise juuraharidusega ja tihedalt seotud Eesti juristkonnaga läbi oma liikmelisuse Eesti Juristide Liidu volikogus ja Euroopa õiguse ühenduse assotsiatsiooni FIDE Eesti juhatuses ning viimased kuus aastat õigusteadlaste päevade korralduskomisjonis, mistõttu suudan teemat senisest enam ka juristkonna jaoks relevantseks teha, et aidata ja motiveerida advokaate ja juriste võimalikke diskrimineerimiskaasusi ka ise rohkem kohtutesse viima ja neis küsimustes sõna võtma.

Suur võimalus on teha rohkem koostööd erialaorganisatsioonidega ja sotsiaalpartneritega, et motiveerida ja aidata neil oma valdkonnas tõstatuvate võrdõiguslikkuse küsimustega tegeleda. Volinik peab korraldama ka regulaarsemalt kohtumisi laiema avalikkusega ning suurendama oma nähtavust ja kättesaadavust erinevates Eesti piirkondades.

Teen ettepaneku kokku kutsuda ministeeriumidevaheline regulaarne töörühm võrdõiguslikkuse edendamiseks, et paremini tegevust koordineerida, teadmisi jagada ja ühiseid lahendusi otsida. Eraldi oluline teemavaldkond on EL struktuurifondide rakendamise nõustamine, mille osas volinik on heaks partneriks rakendusasutustele.

4. Mitte ainult soovolinik.

Eelkõige peab volinik omama terviklikku ja süsteemset nägemust võrdse kohtlemise ning mitmekesisuse ja kaasatuse teemadest. Sageli võib juhtuda, et erinevad alused kattuvad või toimub diskrimineerimine mitme aluse koosmõjul. Minu enda lähenemine on vaadata iga inimest kui indiviidi koos võimalike takistustega, mis tema konkreetsest tunnustest võivad tekkida.

Sooline võrdõiguslikkus saab minu ametiaja jooksul jätkuvalt suure tähelepanu osaliseks. Selleks, et teemat senisest tulemuslikumalt edendada, näen statistiliste andmete kõrval olulisena juhtumianalüüside ja kvalitatiivsete uuringute abil selgitada ühiskonnale neid väljakutseid, mida naised täna Eestis kogevad ning kuidas sooline ebavõrdsus mõjutab negatiivselt kogu ühiskonna toimimist. Samuti pean oluliseks meeste konstruktiivset kaasamist sooteemade aruteludesse, et välistada asjatut vastandumist ja liikuda edasi. Volinik ei peaks tingimata sooteemadel võtma kõneisiku rolli, aga ta saab leida ja koordineerida sõnumeid ja olla eestvedaja konkreetsetele algatustele.

Samas on oluline, et voliniku institutsioon aitaks võidelda diskrimineerimise vastu võrdselt kõikidel alustel. Suurt potentsiaali näen rahvuspõhise diskrimineerimise vastu võitlemise osas. Seni pöörduvad voliniku poole selles küsimuses vaid vähesed. Voliniku võimekust ja pädevust nii venekeelse vähemuse kui uusimmigrantide ja Romade teemadega tegelemiseks tuleb oluliselt tõsta. Võrdõigusvolinik kui tõhus diskrimineerimisalaste vaidluste lahendamise ja teadlikkuse tõstmise vahend aitaks objektiivselt uurida nii rahvuspõhise diskrimineerimise olukorda kui pakkuda tõhusat mehhanismi võimalike tekkivate või olemasolevate pingete lahendamiseks. Eesti on mitmerahvuseline riik ja võrdõigusvolinik saab teha ka omalt poolt rohkem, et kõik Eesti elanikud siin ennast võrdselt kodus tunnevad.

Puuetega inimeste olukorraga tegelemine saab olema üks olulisemaid väljakutseid. Puuetega inimeste õiguste kaitse konventsiooni rakendamise järelevalvesse tuleb kaasata eelkõige puuetega inimesi endid ning neid võimestada oma õiguste kaitsel. Volinik saab omalt poolt ka kaasa aidata edukale töövõimereformi rakendamisele pakkudes tööandjatele teadmisi ja tööriistu puuetega inimeste edukaks rakendamiseks. Samuti on oluline töö puuetega inimeste seas nende õigustest, et ära hoida puuetega inimestest töötajate võimalik diskrimineerimine nii värbamise, edutamise kui töötasu osas.

Lisaks tegeleb volinik muidugi ka kõikide teiste alustega, otsides sobivaid liitlasi ja moodustades või osaledes erinevates koalitsioonides. Üha enam on päevakorras lesbide, geide, biseksuaalsete, trans- ja intersooliste inimeste õiguste küsimused, mille osas volinik saab mängida olulist stereotüüpide ümberlükkaja ja võrdsete inimõiguste eest võitlemise toetaja rolli. Vanuse- ja usupõhine diskrimineerimine on fenomenid, millele Eesti seni pole piisavat tähelepanu pöörata, aga mida volinik samuti ignoreerida ei tohi. Tihe diskussioon Eestis tegutsevate usuorganisatsioonidega on vajalik, et koos probleeme lahendada, respekteerides nende autonoomiat usuasjades.

5. Volinik ja meedia: head partnerid

Meedial on võrdõiguslikkuse valdkonnas äärmiselt oluline roll. Ühest küljest on ühiskondliku muutuse läbiviimiseks vajalik professionaalne, järjepidev ja objektiivne meediatöö, mille abil teemat ühiskonnale teavitada. Teisest küljest on üha olulisem meediat aidata, et suurendada vähemuste ja naiste kogemuste kajastatust ja nähtavust igapäevameedias ning vähendada meediakajastusi, mis vastutustundetult mängivad rassismi, anti-semitismi, anti-mustlasuse, kseno-, homo- või transfoobia õhutamisega. Voliniku roll on siin aidata ajakirjanikel oma töö kvaliteeti tõsta, astudes nendega konstruktiivsesse dialoogi ja pakkudes välja alternatiive.

Voliniku töö meediasuhtlusel peab olema senisest proaktiivsem ja inimlähedasem. Volinik peab olema võimeline kommunikeerima mitte niiväga diskrimineerimisega seotud halbu uudiseid vaid eelkõige järjepidevalt selgitama mitmekesisuse ja kaasatuse sotsiaalset ja majanduslikku kasu ühiskonnale, kaasates sellesse liitlasi, nagu poliitikud, ametnikud, arvamusliidrid, ettevõtjad ja erialaprofessionaalid. Volinik peab meedia jaoks olema hea ja kättesaadav kõneisik, kes oskab võrdõiguslikkusega seonduvaid teemasid kommenteerida inimlähedaselt ja kes on valmis ühiskondlikes aruteludes kaasa lööma.

Voliniku institutsioon peab olema oluliselt professionaalsem oma meediatöös ning otsesuhtluses Eesti elanikega. Volinik peab identifitseerima strateegilised muutjad (arvamusliidrid, poliitikud, ajakirjanikud, vabakonna liidrid jt), kellega koos või läbi kelle eesmärke saavutada. Tuleb vältida kuvandit, et volinik on üksi, vaid alati tegutseb kellegagi koos ja omab laia ühiskondlikku tuge oma tegevusele.

Olen viis aastat aktiivselt inimõiguste ja võrdse kohtlemise eest seisnud ning motiveerinud selles teisigi. Leian, et olen valmis väljakutseks, et viia võrdõigusvoliniku institutsioon uuele tasandile.

Tallinn, 30. aprill 2015

Kari Käsper

Estonian democracy in 2015: reflections on parliamentary elections

Estonia has progressed remarkably since 1991 in introducing democratic changes and adopting international standards. In recent years, however, progress has been slow and there is growing danger of erosion of democratic practices. This is worrying, especially in times of economic uncertainty and growing international tensions.

The basis of any representative liberal democracy are free and fair elections. The latest parliamentary elections took place on 1 March 2015 and on 29 May the OSCE/ODIHR election monitoring mission issued their final report. The report received no media coverage and raised no discussions in Estonia, although the conclusions paint a not so positive picture of representative democracy in Estonia. The missionwas limited only to three areas: internet voting, campaign finance and participation of national minorities.

Internet voting

Estonia has built an international reputation for its Internet voting system, which amounted to about 30% of the votes cast. However, a detailed examination by OSCE/ODIHR experts shows a lack of transparency, formalisation of procedures and other significant problems that continue to be ignored by Estonia when it comes to Internet voting. Surely, Internet voting system, if used, should be better regulated and more secure than regular elections, not vice versa.

One of the problem is the lack of transparency of the work of the newly created electronic voting committee, to which there are no formal qualification criteria of membership. In essence, an aspiring dictator could influence the appointments made there and there are very little ways how to ensure that the EVC is independent and balanced.

There is also very little formalisation of the organisation of Internet voting: there are no deadlines or formal procedures related to software development, testing and updates. Shockingly, there is also no backup plans in case a catastrophic event occurs at the server location, which could disrupt voting and cause a significant loss of votes (basically the votes given after the daily backup to a CD; there is no mirroring to another location for example).

There is no end-to-end certification of the system by an independent body, the full audit reports that cover only parts of the system are not made public.  There is still also no end-to-end verifiability of the vote without losing the secrecy of the vote, which means that there is no way to check whether the votes were allocated to the candidate that the person intended to vote for.

The problems with Internet voting are such that still, Estonia remains the only country to use it in an election where the stakes are so high (i.e. main parliamentary elections). Even in a more developed democracy, such system would be problematic on a technical level as the risks are too high, but it seems ill-advised to use it in the form it is today in a country which has only a short record of democracy. Perhaps the reason why Estonia has been able to get away with this, is not because Estonia is so advanced technologically, but because it is not so advanced in terms of democratic practices and respect for the right to vote.

Political party and campaign finance

In terms of party and campaign finances, some progress has been made. However, the report has some good recommendations in it:

• the limitation of how much can a single person donate in a year,
• better regulation of how and when public funds during the campaign period,
• reporting requirements by third parties (applicable for example to anti-gay lobby groups which promoted specific candidates),
• allow the national election committee, rather than police, to judge on what constitutes outdoor political advertising.

Significantly, the report maintains that the ban on outdoor advertising is not working and thus restricts freedom of expression. The report observes that the justification of the ban by the Supreme Court did not hold up:

The report also included some comments regarding the Political Party Finance Supervision Committee (disclosure: I am an alternate member of the Committee appointed by the Chancellor of Justice). The Committee could be influenced as the members do not have tenure and none of the members work full time there. The Committee is also hobbled by lack of resources and investigative powers.

Participation by national minorities

The political participation by the large ethnic Russian minority (ca 25% of the population) continues to be a great challenge for Estonia. The election observers noted that, except for two parties, less than 10% of the candidates were from a minority background. They also expressed concern that election-related official information was only available in the Estonian language, and not in Russian or English. This was also true of the electronic voting interface, which could account for the low level of Internet votes in the predominantly Russian-speaking areas.

The ca 85 000 stateless people living in Estonia continue to lack basic political rights, such as the freedom of association, because they are not allowed to belong to a political party (although they could donate money to them). The OSCE/ODIHR team recommends to step up efforts of naturalisation of stateless people in order to give them basic suffrage rights. However, Estonia’s citizenship policies are among the most restrictive in Europe, and there seems to be no political will to change this, so this issue will stay for a long time.

Conclusion

The state of Estonian elections, based on the three themes that were covered by the OSCE/ODIHR report leaves a lot of room for improvements. It should be noted that the report did not cover other topics, such as the restriction of the right to vote for prisoners and other ongoing issues. In some areas, such as party finance and certain aspects of Internet voting, gradual improvements are possible, if there is willingness on the side of the Estonian authorities to consider these. However, in the area of national minorities and also major aspects of Internet voting, there are larger things in play. In terms of national minorities only a fundamental rethink of the citizenship policies would eliminate the issues and enhance the political participation of minorities. In the area of Internet voting, which is more of a PR project of the Estonian state, a mindset change in the attitudes towards technology and constructive criticism of e-Stonia needs to take place.

The right to vote is a basic and fundamental human right. One can question whether the continued limitation of suffrage to exclude a part of the Russian minority population from political participation and usage of a somewhat flawed and risky Internet voting system primarily for international image-building purposes is compatible with the preservation and strengthening of that human right.

Read:

Final Report of the OSCE/ODIHR Election Expert Team on Parliamentary Elections in Estonia on 1 March 2015

Migration, globalisation and diversity

Until a few days ago, I thought that globalisation has increased the migrations of people, because there are more planes in the air, more cars on the road, more refugees trying to escape war and persecution, etc. But that has turned out to be a very deceptive picture. Last year, Mathias Czaika and Hein de Haas from the University of Oxford analysed migration from a globalisation perspective in their article “The Globalization of Migration: Has the World Become More Migratory?” It appears that some of the common conceptions there are about migration today are wrong, or at least very misleading.

Czaika and de Haas come to the somewhat unexpected conclusion that international migration has not accelerated. This is not so much due to the restriction of immigration by the destination countries, but much more due to the impact of technological change. While one might think that improvements in transportation and communication technology has made it so much easier to move around, these also make it easier to stay at home. You can commute long-distance (i.e. work in Finland and live in Estonia) and you can work from home. You do not need to physically relocate yourself in a country to do at least certain level of business there, and you can use different internet-based services such as Skype.

But how does one then explain the congestion in the skies and the rapid rise of the overall volume of people moving? The authors say, that the growth has come mainly from non-migratory forms of mobility, i.e. people commuting long-distance, going on tourist trips, business trips and short-term assignments. So the increase in mobility has not resulted in an overall relative increase of migration.

It is also not true that migration has made all countries more diverse. It has made the countries to which people migrate more diverse (with the benefits and challenges that come with it), but source countries have become more homogeneous as a result. This is also applicable to Estonia, from which 22 495 people more have emigrated from than have immigrated to in the years 2004 – 2014. At the same time, ethnic diversity has decreased: the share of ethnic Estonians in the population has grown from ca 68% in 2001 to ca 70% in 2011 (data from Statistics Estonia). This means that minorities emigrate in a larger share than others, presumably due to discrimination and lower economic opportunities resulting from their social status.

Migration trends also show the concentration of talented people in certain cities and regions, which results in more inequality and obstacles for development for those left behind. Richard Florida has stated that successful areas focus on the quality of place to attract high-skilled creative people that produce high-value economic growth.

Read:

Czaika, M. and de Haas, H. (2014), The Globalization of Migration: Has the World Become More Migratory?. International Migration Review, 48: 283–323.

Florida, R. (2014). The Creative Class and Economic Development. Economic Development Quarterly, 28(3), 196-205.

Online freedom and offline borders

The role of Facebook, twitter and social networking applications in the so-called “Arab Spring” and other forms of resistance to authoritarian regimes has been much lauded in the West. The spread of social media seems to also have a role in the ongoing migration disaster at Europe’s borders, but also probably requires a fundamental rethink to the physical boundaries between countries.

Restrictive migration policies are already morally problematic, especially when talking about refugees. Seyla Benhabib wrote that:

Migrations pit two moral and legal principles, foundational to the modern state system, against each other. On one hand, the human right of individuals to move across borders whether for economic, personal or professional reasons or to seek asylum and refuge is guaranteed by Articles 13 and 14 of the 1948 Universal Declaration of Human Rights. On the other hand, Article 21 of the declaration recognizes a basic right to self-government, stipulating that “the will of the people shall be the basis of the authority of government.”  /…/

The international system straddles these dual principles but it has not been able to reconcile them. The irony of global developments is that while state sovereignty in economic, military, and technological domains is eroded and national borders have become more porous, they are still policed to keep out aliens and intruders.  The migrant’s body has become the symbolic site upon which such contradictions are enacted.

/…/

If conditions in a person’s native country so endanger his life and well-being and he becomes willing to risk illegality in order to survive, his right to survival, from a moral point of view, carries as much weight as does the new country’s claim to control borders against migrants.  Immanuel Kant, therefore, called the moral claim to seek refuge or respite in the lands of another, a “universal right of hospitality,” provided that the intentions of the foreigner upon arriving on foreign lands were peaceful.  Such a right, he argued, belonged to each human being placed on this planet who had to share the earth with others.

Even though morally the right to hospitality is an individual right, the socioeconomic and cultural causes of migrations are for the most part collective.  Migrations occur because of economic, environmental, cultural and historical “push” and “pull” factors. “We are here,” say migrants, “because in effect you were there.”  “We did not cross the border; the border crossed us.”

European countries, especially my own coutry Estonia, seem still to be much in favour of moving to very secure physical borders while at the same time promoting extreme freedom online. People around the world at the same time are more and more living a blended online and offline life, both modes complementing and impacting the other, sometimes indistinguishably so. The 1,3 million strong Estonia is a particular example of this clash: it is the most conservative EU country in terms of migration and citizenship, and at the same time it promotes “e-residency”, a project to attract foreigners to use its e-services.

The assumption seems to be that we can separate offline and online lives from each other. But that is not possible. People who migrate or intend/have to do so (a few of whom have to resort to dangerous and inhumane journeys across the Mediterranean or other external borders) also live partly online. They see the self-curated life stories of their Facebook friends and instagram contacts in Europe, which acts as a further motivation to try to take on the trip to  escape persecution or seek a better life. They use social media to organise transport and contact smugglers, in absence of secure and safe legal pathways (but of course, are not really “lured in” by them as reported by many in the media). One of the translators to Estonia’s troops in Afghanistan was able to create an unprecedented discussion in Estonian media about getting refuge, because he was able to use social media to contact journalists and others in Estonia.

This conundrum is not solvable by creating barriers to the online side. The ridiculous proposal to close the social media pages of smugglers, which was among the initial lackluster EU plans to address the issue, would be practically impossible to implement (as most of the EU’s initial plans). What can be done is to rethink asylum and migration policies so that it takes into account the fact that we live in borderless online world in a way that softens, not hardens, borders offline, a part of which is dealing with poverty and inequality. This might eventually lead to a world without borders both offline and online.

Estonia’s refugee debate

In Estonia, the European migrant/refugee crisis has resonated particularly strongly. This is somewhat surprising at the first glance, but actually quite expected, because it calls upon issues that are extremely important, but with which Estonia at the same time struggles.

1. The acceptance of liberal democratic (or Western) values of tolerance. Historically, European liberal social values have been accepted by the Estonian political elite only superficially. Human rights and tolerance in particular have not become entrenched due to the lack of will by the political powers to deal with the topic (partly due to their own world view). Perhaps it is true that Estonia also was admitted to the EU too soon, and only because it promised to do certain things and legislated others, but has no real intention to take European values seriously. The refugee issue forces us to overtly choose between universal moral and legal values prescribed by international human rights and nativism/nationalism.
2. The large Russian minority in Estonia. The usual counter argument from the conservative politicians (and many others) is that there already are 30% of non-Estonians living in Estonia and we should not increase that percentage. This is offensive to the Estonian Russians basically stating that they are second class and that it would be better for them to leave. It also tells us that the integration policies so far have been a failure, since the poisonous discourse of Estonian Russians as not being a part of “us Estonians” still hangs on. The decision to accept migrants would help to deconstruct this damaging discourse.
3. Facing up against racism and islamophobia. I included racism and islamophobia here, because there seems to be much more willingness to accept Ukrainian refugees than Arab or African ones, which in my opinion is not only related to the geographic and relative proximity of Ukraine, but also to the skin color and religion of the different refugees. There is a strong undercurrent of racism and islamophobia in Estonia, which is fuelled by lack of direct contact with people from muslim background or people with a black skin colour combined with negative media portrayals and stereotypes. The debate makes it easier to fight these negative stereotypes, especially thanks to Estonian journalists who have sought out refugees who have come to Europe both in Italy, Greece and Sweden and who help telling their very human stories.
4. The sovereignty and borders issue. Refugees and other migrants symbolise the impossibility of having closed borders in today’s globalised, interdependent world. Borders have become and should be porous, says Seyla Benhabib, and I agree. Fortress Europe is an endeavour that was doomed from the start. Keeping people from moving from one country to another is not morally or ethically compatible with how we live our lives today and the refugee crisis forces us to recognise this. It also means that sovereignty must be and is gradually transformed from a national one to cosmopolitan one, if we want to preserve and grow peace and prosperity. In Estonia, the strong rhetoric of keeping our borders secure and the criminalisation of irregular border crossings are completely wrong things to say or do.
5. The raison d’etre of Estonian statehood. Partly because of neoliberal thinking, we have created in Estonia a state with the wrong values. In Estonia even more so than in other Western countries, the state must be foremost a well-oiled machine that efficiently delivers services (and protects us from Russian invasion). Although the Estonian Constitution prescribes a strong liberal Western state, the actual state that we have is more of a value-neutral, almost nihilistic one (except the nationalist streak which only seems to be strong in the national defence and interior realms). Overall the Estonian political elite have not taken moral stands on value issues, delegating authority and responsibility for these values to Europe. Now, with the refugee crisis, the Estonian government is faced with a moral decision (much like with the civil partnership law last year), in which it has to clearly make a choice. It forces our pragmatic party politicians to make a moral leadership decision.

So, the European refugee crisis is also at the same time an Estonian identity crisis. The voluntary acceptance of a number of refugees by resettlement from refugee camps outside of Europe and participation in the burden sharing for asylum seekers (although I do not think it is helpful or humane to characterise asylum seekers as a ‘burden’) will contribute to the slow untangling of all of those issues and hopefully make Estonia a better society for all of us. In 2018 Estonia will take on the rotating presidency of the Council of the EU (and also celebrate 100 years of the Estonian state), which means that we will be center stage in Europe and the world, and we have to be able to deal with and lead on all kinds of issues, but migration is surely going to be one of them. It will be an important test of whether we are mature enough to lead on these moral issues.

The danger posed by the far right in the Estonian Parliament

Last Sunday’s parliamentary elections resulted in a far right party Eesti Konservatiivne Rahvaerakond (EKRE) winning 7 seats in the 101 member Estonian parliament. Soon after the win, several scandals have rocked the party, as their record and previous statements are being analysed by the media, bringing out extreme views ranging from questioning the numbers of Jews killed in the Holocaust to discussions about positive sides of German Nazi politics. It appears that at least one of their campaign promises is mirrors one from that era. Aro Velmet has analysed why the media, analysts and other parties did not want to know or care about this before.

It would be easy to explain the success of EKRE as a counter-reaction to entrenched liberal democractic values or opposition of the same-sex partnership law by a vocal, frustrated minority that has failed to keep up with the times and adopt European values, but that does not tell the whole story (or explain why there are so many relatively successful young people involved). I use Cas Mudde’s framework to show that EKRE is much more mainstream (and thus dangerous) than the simplistic explanations show.

The ideological underpinnings of EKRE are fairly standard far right stuff: a mixture of nativism, authoritarianism and populism. Nativism plays an important role for EKRE, their leaders have emphasised time and again that they believe that people who belong to one ethnic group should live in their own land with their nation and not somewhere else. Nativism is a rather mainstream way of thinking in Estonia because of historical traumas, and many parties exploit it in one way or the other (but not as forcefully as EKRE). Authoritarinism is present in their election manifesto in which they strive to fight with “anti-state activities” and populism is embodied in their anti-establishment rhetoric, arguing that the “homogenuous will of the people” should override “undemocratic” institutional constraints or constitutional protections for minorities (most clearly evidenced by the demand to hold a referendum on same-sex partnership regulation). Each of these ideologies hold wide support in Estonia, which means that ideologically EKRE lands on a fertile ground and has considerable potential to grow.

In terms of nativist attitudes of the public, it is not a secret that tolerance towards people with a migrant background is low in Estonia. Even though Estonia gets the least number of asylum applicants in the EU (ca 100), public opinion surveys show that people perceive immigration as a threat to the Estonian nation. Strict citizenship and naturalisation policies have resulted in low integration rates for the ethnic Russians that make up ca 25% of the population. Fuelling ethnic based antagonism is still the main modus operandi of all parties to win votes at elections, depriving people of real free choices. Taking account of all the above, it is clear that nativist attitudes are present in Estonian mainstream.

Authoritarian attitudes are also present, people prefer a strong ruler and would like to regulate the behaviour of others even if it does not concern them. For example, the ban on drinking alcohol in public was quickly reinstated after protests in the media. Also there is wide support for harsh punishments for criminals.

Anti-establishment attitudes are also gaining ground, both because of fatigue with the long-term rule of the Reform party, the disconnect between successful elites and less successful masses. There are low levels of trust of the parliament and government. EKRE probably would have recieved more votes, if the anti-establishment centre-right Free Party had not also taken a lot of the protest vote.

Thus it would be wrong to claim that EKRE represents ideology or attitudes that are shared only by a minority. They gain support by presenting the same basic ideology that is espoused by mainstream parties, but in a purer, more ideological form. They exploit the same basic attitudes, but in more extreme ways.

The scary conclusion is that EKRE still has vast potential in terms of ideology and attitudes; what is holding them back is their lack of professionalism in messaging and internal organisation. Now that they receive funding from the state, they can work on these organisational matters. It is a stark warning for all centrist and mainstream parties that in order to defend liberal democracy, they have to let go of the previous antagonisms and be much more engaged with the public and willing to clearly articulate more value-based messages on issues that are not usually considered important by them.

The mainstream parties should not allow the far right to monopolise divisive issues, because this is what makes them thrive. EKRE was the only party that took up the civil partnership law and made opposition to it into their issue. Not having any other party to challenge them on this issue was the reason they were able to gain support quickly.

The evolution of Western public service: from personal servants of the sovereign to representative bureaucracy and multi-level governance

Note: This was originally written as a final assignment for a course on Public Service.

This essay aims to discuss the evolution of the Western public service, reflecting on the historical development of it, and then looking at the specific challenges that public services faces today. The essay focuses in that part on representative bureaucracy and its links with multi-level governance and neutrality. It is not an in-depth study, but rather gives some sketches and preliminary observations on these themes. Particular attention will be given to Estonia and the European Union, which are used especially in the latter part of the essay to illustrate specific examples and current issues.

The question of what we need the public service for has had different answers in different times. If one agrees that the definition of the public service is “mediating institutions that mobilise human resources in the service of the affairs of the state in a given territory” (Bekke et al. 1996, cited in Van den Berg 2011), then it is tightly connected with what the state is and what it does. In this way it depends on what is the status of the state in a given time and place as well as the personal position and values of any individual and her experiences vis-a-vis the state.

When discussing the evolution of the role of public service, it is thus necessary to look at the wider context of what the state is and what are the institutions that mediate human resources in state affairs. This essay aims to discuss the development of Western public service in particular due to its dominance in the academic discourse which of course does not mean that other public service traditions are less important or valuable to study. It also aims to draw upon parallels of evolution of public service in a multitude of Western countries, which does not mean that all countries are or were similar in the way the public organisation was organised. Notably, the US and European approaches to public service were and continue to be different in many details, but there is also significant diversity among European states as well.

Raadschelders and Rutgers (1996) identify five phases of public service. They place the origin of the civil service to 13th century when the state appears although they also admit that government existed also before that. Initially, civil servants were the people who took care of matters for the sovereign and since there was no concept of public vs private sphere, the focus of civil service was to serve the sovereign and only the sovereign.

The next significant development, or phase two, according to Raadschelders and Rutgers (1996) came in the state servants, which occurred with the formation of states and speading of the notion that the task of the monarchy is to provide public welfare. The centralisation and unification of the state meant that there were new professional and ethical expectations of what the ideal civil servant should be: experienced, neutral, honest etc. The relative gain in importance of higher functionaries came due to more expenditure and tasks of the state and a larger number of civil servants.

Phase three sees the formalisation and institutionalisation of the civil service which appears in the 18th century. This started the process of separation of the private and the public spheres which created the conditions for the development of the modern civil service. This also meant that that the public service started to wield more power alongside, or even in competition with, the sovereign. This process culminates in the period between 1780 to 1880, when the modern civil service was born (Raadschelders and Rutgers 1996). In this period, civil servants became the employees of the state, more particularly executive branch of government, which was accountable not to the sovereign, but a separate sovereign power. The concepts of separation of powers and Rechtstaat defined and delimited that power. The civil service also became  increasingly hierarchical and organised, and specific recruitment criteria were established, starting the shift of focus to public service as a human resource issue (setting the stage for representative bureaucracy to emerge later).

The next stage of development was to regulate the civil service and protect it from political interference. In this stage the separate employment conditions and social guarantees for public servants were established. It was the birth of the monolithic and hierarchical public service in which emancipated civil servants not only served, but had rights. This also means the growth of the public sector as a whole, because there was a strong demand for state involvement in provision of social and health services.

The last stage means a complete professionalisation of the civil service. This meant strict entrance exams and elite education, a merit based system which brought about a new elite of high civil servants, a class of protected individuals. As this elite education was not accessible to all, this brought about claims of lack of representativeness of the highly professional service. This meant a pressure to balance the merit-based system with representativeness, which is only recently becoming a more discussed topic in many countries.

Of course, in recent times one of the main impact has been the (in a large part unsuccessful) adoption of business sector organisations practices for the state organisation, collectively referred to as New Public Management (Drechsler 2009). Although the hey-day of NPM was relatively short-lived, it brought a renewed focus on efficiency and reduction of the size of state and public service that has resumed in many places. For example, all concepts of state reform in Estonia still foresee the reduction of number of public servants as the population is also declining. The relative size of government and number of inhabitants do not need to necessarily bear relation to each other, it rather depends on what is the role of the state and public service in a given country.

There are many challenges and possibilities for the public service for the coming years, which will shape what it will become. There are numerous issues that can and should be written about. Future is unpredictable and context changes rapidly due to technological and other events; recent paradigmatic changes have occured due to 11 September attacks and the financial crisis. The impact of these events on the state could not have been foreseen, but it is profound. The emergence of a surveillance and security state, which was revealed by the whistleblower Edward Snowden and the constant challenges of slimming down the public service have been reactions to the Black Swan events for which people and states were not prepared for.

It is thus questionable whether any specific direction can be predicted or undertaken. We now live in an interconnected and interdependent world of multi-level governance which cannot be controlled or directed due to its sheer complexity. In a multi-level governance setting, the state as a whole and each public official individually is facing a difficult choice of a multitude of relationships and allegiances. I will look at three issues in this setting: representative bureaucracy, value-neutrality and supra-nationality.

In terms of representative bureaucracy one of the main changes that the public service is undergoing is the gradual introduction of diversity and inclusion. This means that each public sector organisation should ideally mirror the ethnic and other types of diversity of those that it governs. In Estonia, the example of inclusion of people with disabilities and of Russian national orgin has been under discussion. The Estonian government has, as a consequence of criticism of its disability benefits reform, promised to employ ca 1000 people with disabilities in the public sector by 2020. This, however, has not been due to ideas of representative bureaucracy, but in order to show an example for the private sector that these people are employable as such.

In terms of challenges for the next years, the challenge of building a more representative bureaucracy is going to be one of the main one. In many countries there are already plans to set specific targets, such as the diversity policy of the Flemish government (De Beeck and Hondeghem 2010), which mentions representative bureaucracy as one of the arguments for diversity and inclusion in the public sector. Although diversity and inclusion has been mainly a private sector initiative, it has been adopted by the public sector using the same organisatsional management arguments by public sector organisations. In my opinion the recent focus on representative democracy stems from both its origins from the private sector (which is using a business case for diversity approach) and also from the propagation of equality and diversity in the EU level (for which it has been given competence). This means that one of the change is that we are going to see more debates around representativeness of public sector in addition to more traditional topics of representation of minorities and women in the political structures and sphere.  In Estonia the topic is still relatively new, although recently state institutions, such as the Estonian Unemployment Insurance Fund and Estonian Social Protection Fund signed up to the Estonian Diversity Charter, which had previously had only businesses as members. Although invited, none of the government ministries joined at this time.

It has also been shown that representative bureaucracy also brings about organisational performance gains (Meier and Capers 2012), which is counterintuitive, as people associated strictly merit based organisations with more professionalism, although there is not a lot of research in this area yet. It has also been shown that representative organisations have better chances at achieving meaningful co-production and overall better attitudes towards the state institutions.

At the same time, representative bureaucracy is difficult to achieve, because it also depends on the awareness and attitudes, i.e. the social context, but also on the willingness of civil servants to make the changes. Representativeness cannot be solely mechanical or outside of the political context (Meier and Capers 2012), it rather requires a sensitivity and custom approach that is fitting to the specific circumstances and time.

It is difficult to evaluate what the impact of passive, but especially active, representative bureaucracy will be. It has already been shown that there are informal networks consisting of politicians, public officials in the state, local, European levels, academics, lawyers, NGO activists and businesspeople that actively promote a specific interest or value and push for better policies. This has happened for example in the area of legislating same-sex unions in which transnational networks have played an important role (Paternotte and Kollman 2013) as has so-called Velvet Triangle networks for gender equality.

This brings about the question of neutrality of the public servant when it is actively pursuing to protect and advance interests and rights of a specific group. Does active representative bureaucracy means that a value-neutral public service becomes an impossibility? The neutrality of public service has meant traditionally the separation of public servants from the political philosophies and ideologies of the political rulers, as to ensure that it is not necessary to exchange all public servants after a change of political direction (as happens with senior officials in the US).  This is different from public officials having their personal values influencing policy outcomes, which can happens in any case (Witesman and Walters 2013). In this sense representative bureaucracy has existed for a long time, it is only now it has been a subject of more academic research.

So one can argue that value-neutrality in public administration is a practical impossibility and rather than try to protect against it, it should be embraced and brought out into the open. There are specific values that the state stands for that are politically very contested and of course depend on the specific context of the state. In a wider sense, the values of the state are prescribed in constitutions or, in the EU’s case, in the founding treaties. However, the practical application and interpretation of these values by public servants is a more complicated matter. For example, the Estonian constitution has conflicting human rights based values of liberal democracy, but at the same time stressing the importance of ensuring the continuation of the Estonian ethnic nation by internal reproduction (Velmet 2014). In this context how a public servant sees an issue has important implications for policy outcomes.

Public service is not influenced only by national actors, but also trans- and supranational ones. In the European Union, which is the most advanced example of multi-level governance, national public servants participate in policymaking in the European level. Although the national officials work for the national governments (and should it theory mainly represent the interests of their government), this is not necessarily always so. For example, national public servants can be seconded to work in the European level institutions, which can have an impact on how they perceive their work even after the end of secondment. On the other hand, transnational relationships formed between officials can also work for or against the promotion and spreading of certain policy goals, values and laws.

The impact of Europeanisation for public service is much larger topic than just representativeness, but this also brings out the question of who exactly is the subject of a (national) public servant? If the decisions of public servants also have an impact in the lives of people in other member states, then who should this person represent? This might not necessarily mean, then that public service should also include foreign nationals. Member States can deny foreign nationals access to certain core public service positions, which have a special trust relationship with the state.

Representative bureaucracy in a multi-level governance setting is something that will have a  impact on public service in the next years. For example, the (informal) networks of state security public servants/business interests/politicians go against other networks of those politicans, public servants/activists and others that promote privacy and fundamental rights. Active representative bureaucracy means a more level playing field between these competing interests, since it brings in more diversity of voices and allows for better coordination and organisation.

Since the political decisionmaking in the EU has specific deficiencies in terms of democratic governance, representative bureaucracy could offer one of the remedies for overcoming the impasse in policymaking in the European level. This is already happening in the form of Open Method of Coordination, scoreboards and other soft law tools that are usually put together by officials with a specific aim to influence Member States to change their policies in a way that is bypassing democratic decisionmaking by the European Parliament and the Council.

This essay attempted to look at the evolution of Western public service and discuss the changes that are going to impact public service in the future, focusing specifically on representative democracy, neutrality and multi-level governance. It identified some of the pitfalls and opportunities offered by these developments in the current changing context and attempted to bring forward some preliminary observations in this field. One can only hope that these developments do not compromise the enormous social and economic value offered by public service, but are rather used to make it more responsive, just and equitable.

Tallinn, 5 January 2015

References:

De Beeck, S. O. P. and A. Hondeghem. 2010. Evaluation of the Flemish Government’s Diversity Policy. Paper for the EGPA Conference 2010 Toulouse, France.

Drechsler, W. 2009. The rise and demise of the New Public Management: Lessons and opportunities for South East Europe. Uprava-Administration 7.3

Meier, K.J. and K.J. Capers. 2012. Representative bureaucracy: four questions. In: Peters, G. and J. Pierre. Handbook of Public Administration (2nd ed.), London: SAGE, pp. 420-430.

Paternotte, D. and K. Kollman. 2013. Regulating intimate relationships in the European polity: same-sex unions and policy convergence. Soc Pol.

Raadschelders, J. and M. Rutgers. 1996. The evolution of civil service systems. In: H. Bekke, J. Perry and T. Toonen (eds). Civil Service Systems in Comparative Perspective. Bloomington: Indiana University Press, pp. 67–99.

Van den Berg, C. F. 2011. Transforming for Europe: the reshaping of national bureaucracies in a system of Multi-level governance. Leiden University Press.

Velmet, A. 2014. Kooseluseadus ja liberaalse rahvusriigi paradoks. Available at: http://arvamus.postimees.ee/2804848/aro-velmet-kooseluseadus-ja-liberaalse-rahvusriigi-paradoks

Witesman, E. and L. Walters. 2013 Public service values: A new approach to the study of motivation in the public sphere. Public Administration. pp. 375 – 405.

Fuzzy borders

There has been recently some discussion in Estonia on the culture of complaint, especially in the rather influential conservative-libertarian circles. This concept, which was initially proposed by the late art critic Robert Hughes in his bestseller book in the US in 1993, was expressed in Estonia in modern terms by Elver Loho in his post on nihilist.fm. Obviously I disagree with both Robert Hughes and Elver on these issues, but that is for another post at another time. However, this has started me thinking on group-based approaches to categorising people.

It used to be easy to define and label individuals based on specific stereotypes and assign them to ingroups and outgroups, i.e. Estonian and Russian, woman or man, gay or straight, which could then become basis for discrimination or even worse as history has witnessed. However, there are additional facets to this because people’s identities and group boundaries are changing too because of social progress and also technological progress that has made unparalleled mobility and connectivity possible for many people around the globe.

Ingroups and outgroups are becoming at the same time fragmented and globalised due to the impact of social media. Fragmented in the sense that people find new ingroups based on extremely specific criteria (fans of an obscure singer) that allows them to cultivate their individual interests while sharing them with people from around the world. Globalised in the sense that there are new global ingroups and outgroups (Beliebers, Apple fans, chemtrail conspiracy theorists, etc etc) that come and go. These seemingly superficial categories have much more impact than one thinks, comparisons with religious cults are not totally out of place.

On the other hand, the perceived borders between groups based on which people used to be labelled and grouped together are becoming fuzzy. Distinct human races have been proven not to exist, ethnicity is more and more self-defined and unlimited (how would you objectively define an Estonian?). People migrate and get multiple relationships with different ethnic and national communities.

Country borders are becoming porous, because states cannot any more decide who can live in their country. In Estonia’s case, 500+ million EU citizens have a rights and obligations in relation to Estonian state, as well as the huge number of permanent residents who are non-citizens, not to mention refugees under international law. Although non-citizens have no access to traditional representative democracy through elections (which is a problem), they can wield power in other ways (for example through the judiciary and the executive branch). Citizenship has little meaning left for defining ingroup/outgroup. E-resident Edward Lucas is probably considered by many Estonians belonging to an ingroup more than many of the 300 000 Russians living here on a permanent basis.

One cannot really base one’s attitudes towards people based on perceived gender and sexuality, either. Gender and sexuality is not binary, because in addition to cis gender persons there are people who identify as various forms of trans* and in addition to strictly heterosexual people there are a range of (closeted and non-closeted) lesbian, gay, bisexual, queer, etc people. Also, disability as a social construct can now under anti-discrimination law mean any long-term physical or mental impairment that prevents from participating in work-life equally with others (i.e. including certain overweight people).

This variety of differences, which is also intersecting in each individual and unique human being, some of which has always existed and some of which has been made possible by technology (i.e. mobility and connectivity) is the thing that seems to making people uneasy and uncertain, because they cannot rely on their prejudice and stereotyping. I do not have an easy stereotype for a cis gender, lesbian, Chinese businesswoman, who lives in India and has a British spouse. What if she is also a Belieber and uses Linux? Stereotypes that used to be good for easier living are increasingly unreliable and also unacceptable (which is why sensitivities and so-called political correctness has become an issue).

In order to cope, one cannot but to have tolerance for all the various individual differences and find common ground on shared humanity, which leads us closer to Benhabib’s cosmopolitan federalism.

Read: Benhabib, Seyla. “Borders, Boundaries, and Citizenship.” PS: Political Science and Politics 38.4 (2005): 673-677.