Constitutional Guarantees of Local Self-government

Local self-government (Est. kohalik omavalitsus) has historically been a familiar way of organising community life for Estonians. Professor Jüri Uluots, a founder of Estonian law, wrote in the 1930s: ”A well-known English lawyer once said that there is no mightier institution than the English parliament in terms of age, importance and influence. This statement could be paraphrased to suit Estonia. There is no legal principle that could compete with the idea of self-government in terms of age, continuity and education in Estonia. The Estonian self-government is the cornerstone of the present times.” Professor Wolfgang Drechsler of Tartu University has, in principle, asserted the same, although he did it 70 years later (in 2003): ”Historically, Estonia as a state emerged from local governments and Estonians have known communal self-government as a form of community life centuries longer than almost any other nation in Europe.” Perhaps since local self-government is such a common term used so often that its very essence is usually not pondered.

Unfortunately, the public’s understanding of local self-government is often limited to the thought that the local government means the mayor. People will also have heard about the local council at best. Generally, people associate their own opportunities and position at local governments with the right to vote at local elections. Such a superficial understanding of local self-government has disadvantageous practical results since ordinary people do not participate in organising community life and are even unaware of their possibilities to do that.

The position of local self-government in the society varies from country to country and understanding it requires knowledge of relevant legislation, especially the constitution. Local self-government is thoroughly and well regulated by the Constitution of the Republic of Estonia compared to constitutions of other countries; foreign experts have also remarked about it. Local self-government is mentioned in about 25 articles of the Constitution; yet, chapter 14 and articles 154 – 160 specifically regulate the institution.

Unfortunately, the problems concerning the essence and the definition of local self-government appear also in other legislation and relevant writings.

In the Constitution, the Estonian term kohalik omavalitsus is used with three completely different meanings.

1. Kohalik omavalitsus as an administrative-territorial unit (Eng. the local government). Article 157 establishes that local governments have independent budgets. Each rural municipality and city, like the state, has its budget.

2. Kohalik omavalitsus as a local government body. Since the adoption of the Local Government Organisation Act in 1993, there have been two local government bodies in Estonia – the representative body (the council) and the executive body (the municipal government). The latter has to be understood to mean a collegiate body since it is quite common that the building of the municipal government is referred to as the municipal government. According to Article 157, local governments can levy local taxes but only the council directly elected by the people can have that right. At the same time, the Article also establishes that local governments can collect taxes although this is a responsibility of the executive body.

The local executive body is not mentioned in the Constitution. There is a relevant essential, partially terminological problem connected with the issue. Quite often it is said or written as if separation of powers exists or should exist at the local self-government level similar to the central level. However, there exists but the representative power at the local level. According to the European Charter of Local Self-government, the principal international document regulating the area adopted by the Council of Europe in 1985, the representative body can have (NB! It is not required to have) executive bodies accountable to it. At the local level, the purpose has to be as efficient functioning of local self-government as possible, not guaranteeing separation of powers. However, we have to speak about vertical separation of powers in the context of local self-government, i.e. about separation of central and local powers which is a prerequisite of local autonomy.

3. Kohalik omavalitsus as a form of organising community life. The term is used in this context in Article 160 of the Constitution. It would have been better to word the provision somewhat more precisely.

The principles of local self-government, first and foremost, the principle of subsidiarity, have been incorporated into the Draft Treaty Establishing a Constitution for Europe. Subsidiarity means that the bodies of power closest to the citizens perform the duties of public authority.

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