No. 3




Balance of Powers as a Constitutional Value

  • Märt Rask

    Märt Rask

    Chief Justice of the Supreme Court of the Republic of Estonia

With the adoption of the Government of the Republic Act in 1995, the Ministry of Justice was given the responsibility to administer the activities of courts of the first and second instance and to organise legal assistance.

This structure of court administration has been criticised by both the former and current chairmen of the Supreme Court, who advocate a clear-cut separation of powers and a classical model of court administration that evolves from this separation. By doing this, they attempted to show, through legal arguments, that such a model of court administration is not suitable for a democratic form of government and contradicts the Constitution of the Republic of Estonia and internationally recognised principles.

The weightiest, but unproven claims that were used in this argument were the violation of the principle of separation of powers and the threat to the independence of the court system. This seems to say that the implementation of the Constitution in developing national court administration is still underway.

Another characteristic aspect to this dispute was that the chairmen of the Supreme Court defended their position through the theory of law, while the counterclaims of the Ministers of Justice were based on practical experience in court administration.

It seems as if the conflict in the Constitution has been pre-programmed. If an analogous conflict of interest would arise, either between the defence forces or the Central Bank and their supervising ministries, it would be classified as an internal conflict within the executive branch. However, the conflict between the Supreme Court and the Ministry of Justice on a general theoretical level would always be classified as a conflict between the judiciary and executive powers. To overcome these differences of opinion, we need to adopt the principle of balance of powers.

The author believes that Estonia should not blindly copy the principles of court administration in other countries, without considering our historic and cultural background and opportunities, since it would not be a solution to our problems.

Independent legal proceedings are the cornerstone of the rule of law. All our constitutional parliaments and government have fully observed this principle in their activities. Governments have unconditionally observed case-law, irrespective of how unpopular or impractical they have seemed from the government viewpoint. In developing the judicial process, the Riigikogu has regarded the case-law of the Supreme Court as a criterion of truth. In the legislative and executive branch, a respectful attitude to independent judiciary has become an integral part of the Estonian culture of law.

Unfortunately, the Estonian culture of law has not ensured that the approach to the work done by courts is assessed in terms of their integrity and performance, as would be characteristic for an open society. There has been little critical debate on legal proceedings and relevant statements are often regarded as intrusion into the courts’ work. At the same time, the executive branch has no intention to assess or license judges. This duty is left to the judges.

The author finds that, through the current law, the judiciary does not have a legal output to the Riigikogu, and, through the MPs, to the highest carrier of state power – the public. The draft of the Courts Act lays down the principle by which the chairman of the Supreme Court reports on the situation in the judiciary to the Riigikogu once a year. It should be noted that the Supreme Court has not discussed the condition of judiciary as an issue of national importance, not even once. Has it been considered irrelevant or there is perhaps fear of interfering in the judicial process?

Funds allocated to the court system have for years been in proportion with other sectors. One must agree with the claim made by Uno Lõhmus, who said that judges need to be more involved than at present with the budgetary process. Every judge needs to understand and feel that he or she is responsible for the justified use of taxpayers’ money.

There are plenty of opportunities to develop the administration of courts. However, the current model of court administration that Estonia has chosen already includes the principle of separation of powers and balance of powers. If observed, these principles ensure that judges are genuinely independent in their rulings and that courts are able to function efficiently.

Full article in Estonian