Summary

The provisions of the Constitution can be divided in two: the fundamental rights and the rest of the Constitutional provisions. Most of the latter regulate State organisation. It can be said today that a consensus has almost been reached in the matter that most of the fundamental rights shall be treated as principles. Some provisions regulating State organisation are undoubtedly rules. The rest of these provisions could be divided into structural principles (e.g., democracy, state based on the rule of law) and objectives (e.g., protection of the Estonian language, nation state).

The theoretical problem of State organisation law principles, which was smouldering under ashes, burst into a practical flame in the 2012 ESM decision recitals. Namely, the grounds for the judgment presumes the position concerning whether § 1 of the Constitution – “Estonia is an independent and sovereign democratic republic wherein supreme political authority is vested in the people. The independence and sovereignty of Estonia are timeless and inalienable.” – establishes a rule or a principle. The Supreme Court en banc decided in favour of the principal approach. The ESM judgment has been criticised heavily for the path chosen. The article examines three critical arguments by Hent Kalmo: first, the thesis of concreteness and unambiguousness of the provisions of the Constitution, secondly, the condemnation of inclusiveness, and third, the claim of theft of authority. The author of this article finds that the majority of the Supreme Court were correct in the summer of 2012, although the principles of § 1 of the Constitution were deemed pristine and rough at the Constituent Assembly. At the same time, the author finds that the best possible future scenario would be to adapt the sovereignty clause of the Constitution to the changed situation.