1.2 History of the constitutional system

The independence of the Republic of Estonia was proclaimed on February 24, 1918, in Tallinn. The Provisional Government of the Republic of Estonia was formed. This was followed by the German occupation. In November 1918 the War of Independence against the Soviet Russia broke out. The peace treaty with Russia was concluded on February 2, 1920.

The first general elections in the Republic of Estonia took place on April 5-7, 1919, when the people elected the Constituent Assembly. The principal task of the Constituent Assembly was to draft and adopt the Constitution.
According to the Constitution of 1920, the supreme body of the Republic of Estonia was parliament, the Riigikogu. The Riigikogu was one-chambered and consisted of 100 members elected for a term of three years. Elections were to be organized on a population basis with the participation of elective citizens. The members of the Riigikogu were to be elected by universal, uniform, direct, and secret voting.
The Constitution reflected Rousseau's principle of national sovereignty. In accordance with the ideas of Montesquieu, power was split between the legislative, executive and judicial functions. Nevertheless, the relationship of these powers was misbalanced, the single-chamber Riigikogu, of 100 members, exercising total control over executive and judicial power, whereas it should only have exercised a legislative function. As the government did not enjoy independent, executive authority, it was subordinate to the Riigikogu.

This imbalance of power had serious consequences for Estonia, which began to manifest in the form of political instability, and there was frequent change of government. As the Justices of the Supreme Court were appointed by the Riigikogu, questions also arose as to the independence of judicial power. The Constitution did not provide for a Presidential role. A particular feature of the state order of Estonia was the extensive attribution of power to its citizens. The Constitution allowed for public initiative and for referenda, an uncommon constitutional arrangement in Europe at the time when it was enunciated. It might even be claimed that the state order of Estonia, as reflected in the 1920 Constitution, which combined parliamentary-dependent authority with the direct power of its populace, represented the most democratic order anywhere in the world. Unfortunately, however, its democratic provisions prevented government from properly functioning. Instead of taking initiatives, the government was almost permanently in a state of defence.

The Estonian form of democracy was proving to be unworkable, and Estonian citizens were becoming increasingly dismayed by the democratic process. At the same time, the authority of the Riigikogu was declining rapidly. As a reaction to these developments, popular support for "firm hand" theories and movements, which advocated authoritarian governance, was increasing. In 1932 referenda were held to consider two draft Constitutions which aimed to restrict the power of popular representation, increase the power of government, and establish the role of head of state. As it turned out, both draft Constitutions were rejected when put to referenda. Nevertheless, in a third referendum, in 1933, a further, draft Constitution put forward by the League of Veterans of the Estonian War of Independence was accepted and came into force on 24th January 1934.

This, second Constitution of the Republic of Estonia laid the foundations for the establishment of an authoritarian state order in Estonia. Membership of the Riigikogu was reduced to 50, and its powers became more formal than real. A new institution was introduced into government of the state, namely the Head of State. That Head of State, to be elected every five years, was given the right of suspensive veto over Riigikogu decisions. As the Head of State's function was to exercise supreme power over the governance of the state, and that as the representative of the people, the holder would also control executive power within government. The Head of State was granted the right to govern by decree, which would assume the force of law, although the Riigikogu maintained the right to amend or repeal decrees introduced in this way.
On 12th March 1934, the then Head of State, Konstatin Päts, carried out a bloodless coup d'etat, to prevent the League of Veterans of the Estonian War of Independence from establishing an authoritarian state. Though Päts did not repeal the existing Constitution he at times violated it through the exercise of excessively authoritarian rule. During most of the time when the Constitution was in force the Riigikogu was not convened, and Estonia became a single-party state. In due course, and recognising the risk to the democratic process which were inherent in the Constitution, the Head of State initiated preparation of a third Constitution of the Republic of Estonia.
The third Constitution of the Republic of Estonia entered into force on 1st January 1938. It remained in force, de facto, until 16th June 1940, when the Soviet Union occupied Estonia and, de jure, until 28th June 1992 when the fourth Constitution of the Republic of Estonia was adopted by referendum. In reality, however, the 1938 Constitution did not reduce the degree of authoritarianism. It even incorporated additional restrictions on the democratic process, thereby formalising some of the violations which had occurred since the 1934 Constitution was adopted. The Riigikogu became bicameral, consisting of a lower chamber, or State Council, and a newly created upper chamber, or State Board. Appointment to the latter had no democratic basis, and its members consisted of high officials, representatives of chambers and local government, and persons appointed by the Head of State at his or her discretion. The most important power of the State Board was its ability to reject resolutions passed by the State Council. It never had occasion to exercise that power, however, as restrictions on the formation of political parties resulted in the creation of a compliant State Council, and an obedient, puppet parliament. The direct power previously accorded to the state's citizens was renounced, public initiative was no longer allowed, and the holding of referenda was left at the discretion of the Head of State.

One significant difference between the second and third Constitutions, however, was the clear introduction of a corporative state in 1938. In addition to the existing, local and cultural governments, a third form of local government was factored in from the professional local bodies or Chambers. These Chambers were given the right to issue mandatory orders, and to collect taxes from their members.

On 16th June 1940, and taking advantage of West European countries' distraction by matters elsewhere during the Second World War, the Red Army of the Soviet Union invaded Estonia and occupied it. On 21st July 1940, the existing state order was replaced by Soviet order and, on 6th August 1940, Estonia was annexed by the Soviet Union. Later, from the summer of 1941 until the autumn of 1944, Estonia was under German occupation and, as a general commissariat, belonged to the greater Ostland commissariat. Unlike Slovakia, Croatia or Bohemia and Moravia, Estonia was neither a puppet state nor a protectorate. A second, Soviet occupation terminated the German occupation, and Soviet annexation was restored, an occupation and annexation which lasted until the autumn of 1991.
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.
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.

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.

The report uses extensively the materials from the this web page .