Development and the realisation of the idea of constitutional review in Estonia
The idea of judicial constitutional review in Estonia has a long history of maturing and realisation. As an important issue of political life, it has enjoyed lively discussions and debates in the course of elaboration of independent Estonia’s constitutions.
Already back when the first, 1920 Constitution was drafted, a version of constitutional review that was quite radical was discussed. According to this version, publication of laws and review of constitutionality of laws would have been the duty of a National (Supreme) Court; whereas in cases of differences between the legislator and the court, a law would have been put to referendum. This implementation model was finally abandoned due to two basic fears: the possibility that the National Court would interfere with the work of the Riigikogu too much and the legislative process become too slow; and that the referenda would slow the process of finding solutions. This, however, did not mean that judicial constitutional review was excluded altogether, as administrative courts existed even before the Constitution was drafted and, pursuant to the Constitution, the courts of general jurisdiction when hearing disputes had to decide on the constitutionality of applicable laws.
In relation to the passing of Law on the Amendments to the Constitution in October 1933, the second constitution of Estonia has been mentioned in law literature. These amendments to the basic legislation did not bring along essential changes in the court system, yet the overall tendency towards deepening authoritarianism in state and society was also to be felt in the activities of courts. The issues of legality and the guarantee thereof became topical again in the two-chambered National Assembly, which was set up with the task of drafting the third Constitution. After the economic life had livened, the crisis was overcome and internal situation stabilised. The second chamber of the National Assembly added a new article to the draft constitution concerning setting up a constitutional court. The first chamber did not feel the need to form a separate constitutional court and felt that the existing mechanism of guaranteeing legality would be supported by the planned institution of Legal Chancellor. After long disputes an agreement was reached: the principle of judicial constitutional protection of the first Constitution would be retained and the idea to expressis verbis provide for the formation of a constitutional court would be abandoned, which did not exclude the possibility of setting up such a court as a specialised court under the law.
In the ambiguous situation created in the Soviet Union by perestroika, a peculiar period started in Estonia, grounded on so called pre-constitutional acts, during which several laws concerning judicial constitutional review and constitutional drafts were prepared. These served as a starting point for the Constitutional Assembly in drafting the fourth Constitution, which was adopted by a referendum on 28 June 1992.
Foreign experts have traced additional peculiarities in Estonian judicial constitutional review, which make the model unique in European context. In Continental European countries, constitutional courts have been formed, which are separate from the system of general courts, whereas in Estonia both functions are fulfilled by the Supreme Court. It has also been found that the present institutional structure has its advantages in a small country like Estonia. This is supported by the practice of the Supreme Court, where during the period of 1933 to 1 January 2002, a total of 55 constitutional cases were heard. At the same time proposals have been made to set up a separate constitutional court. This could become necessary when the constitutional review competencies are extended and if direct constitutional complaints are allowed.