Summary

After adoption of the Constitution of the Republic of Estonia Amendment Act and its interpretation by the Supreme Court which holds that some of the provisions of the Constitution have been amended and are only applicable where they are in conformity with European Union law, there is confusion in Estonia over the validity of constitutional provisions. Yet it is not compatible with the principles of democratic decision making if a court can decide the validity of the Constitution. The Constitution obliges the courts to defend the Constitution, not to decide which of its provisions are valid. For a Member State of the European Union, this means the task of ensuring a balance between the functioning of EU law and preservation of constitutional values. Together with the supremacy of EU law, we should not forget article 4 paragraph 2 of the Treaty on European Union which states that the Union shall respect the national identities of the Member States as are inherent in their fundamental political and constitutional structures. Erosion of the Constitution prejudices its ability to regulate the activities of public authorities on its territory.

In the opinion of the author, amendment of the Constitution does not mean a realignment of the important values of the Constitution or a change in the model of separation of powers. As a first step, the author proposes that a committee of legal experts be re-convened to assess the arguments for and against amendment of the Constitution. A significant portion of the work of the committee that was convened from 1996-1998 should be suitable for this exercise.