Restoration of independence and the fourth Constitution (1992 -… )

Although Soviet-type, state order remained in effect until the summer of 1992, in its later stages, it faced many challenges. On 16th November 1988, for example, the Supreme Council of the Estonian Soviet Socialist Republic (ESSR), which was the territorial, legislative body of the constituent, Soviet republic of the Soviet Union, approved a constitutional amendment which declared the primacy of ESSR legislation over the laws of the Soviet Union. In March 1990, the Supreme Council went further, confirming the course which it had already taken and setting itself the goal of terminating Estonia’s annexation by the Soviet Union and restoring Estonia’s status as an independent republic. On 20th August 1991, taking advantage of the opportunity afforded by the failed coup d’état in the Soviet Union, the Supreme Council passed a resolution declaring the restoration of Estonian independence on the basis of historical continuity, a declaration which received immediate international recognition. De jure, the 1938 Constitution was restored but, de facto, the Soviet state order remained in force, even though Estonia was outside the jurisdiction of the Soviet Union. This legal conundrum was solved when the fourth Constitution was approved by referendum on 28th June 1992.

The 1992 Constitution incorporates many elements of the earlier Constitutions, and particularly those of 1920 and 1938. It declares the legal identity of the Estonian state, and its continuity with the state which was annexed by the Soviet Union in 1940. It also emphasises the restitutive basis of the restoration of Estonia’s independence, returning to the state order which was in force before 1940. Given that two, markedly different state orders were in force in Estonia between 1920 and 1940, the fourth Constitution represents an attempt to find a middle way, avoiding the weaknesses of the 1920 parliamentary democracy and the authoritarianism of 1934 and 1938.

According to the 1992 Constitution, Estonia is an independent, sovereign and democratic republic wherein the supreme power of the state is vested in its citizens. That power is exercised either by referendum or by election to the Riigikogu. The outcome of a referendum is binding on all state institutions. Some provisions of the Constitution can only be amended by referendum. Estonia remains a unitary state; the Constitution precludes both the establishment of an autonomous region within Estonia, with a legal order different from that in force elsewhere in Estonia, or the creation of a federal, Estonian state. Care has been taken to establish the separation of, and balance amongst the legislative, executive and judicial arms of government. Nevertheless, this does not accord precisely with the classical, Montesquieu model of separation as it is acknowledged that many of the powers exercised by the different arms are themselves inter-dependent.

Following enactment of the 1992 Constitution, Estonia has enjoyed considerable, political stability. Extraordinary elections have proven not to be necessary, and governments have been relatively stable. This suggests that a reasonable balance has been established between the legislative and the executive functions. Proposals for amending the Constitution have been aired from time to time, many of these concerning the procedures to be followed in presidential elections. A number of political groups favour the election of the President by direct, universal suffrage. Others fear that this may disturb the existing, balance of power amongst the state’s institutions, and may even pose the threat of a return to authoritarian governance.

Another topical issue in relation to possible, constitutional amendments, concerns the subordination of the Defence Forces. At present, the government does not exercise control over the Defence Forces which are subordinate to the President through the Commander of the Defence Forces. Fears have been expressed that the Defence Forces are insufficiently subordinated to civil control and that the government might be unable to exercise its executive power in the event of a crisis.

Questions have also been raised about the need for Estonia to amend its Constitution to take account of European Union membership. As yet, no definitive decision has been made on whether the existing, constitutional provision relating to the independence and sovereignty of Estonia is compatible with membership status of the European Union, which presumes the delegation of a certain amount of power to the European Union’s central institutions. Adoption of the European, single currency, the euro, also presumes a modification to the function of the Bank of Estonia as the bank of issue. Further, as membership of the European Union precludes the classification of citizens from other member states as aliens, another modification to the Constitution is called for.

From the current perspective, however, there is no, short-term prospect of Estonia amending its existing state order, namely that of a parliamentary, democratic republic and unitary state.

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