No. 7




Use of Material Pertaining to Legislative Process in the Judicial Review Process

11 June 2003


RiTo No. 7, 2003

  • Virgo Saarmets

    Ministry of Justice, Department of Legislation, Service of Public Law, adviser

28A legislative bill is never without accompanying documents that annotate its content and aims, helping legislators understand the necessity of passing the law and propriety of the measures within.

The documents can also see use in the first days that the law enters into force, giving insight into the legislator’s intent in implementing the law. But in the legal literature there are opinions both in favor as well as against the use of such materials in the interpretation of laws on the books. The fact that such materials are not the result of the parliamentary process – they are not voted on, but only the text of the law – is certainly cause for some trepidation. In the practice of other states (US, UK, Germany, Finland) there has been a gradual retreat over time from a more negative view of the use of such materials – such material is seen as more useful now, at least for dissenting opinions.

The Supreme Court of Estonia has on 19 occasions turned to material used to introduce a bill for getting insight into the meaning and intent of a provision. On three occasions, a justice’s dissenting opinion refers to such material. These instances date from 2000-2003.

From a survey of Supreme Court justices, we can state that generally, senior judges do not consider such material very reliable and prefer to latch their interpretation to the actual text and general principles of justice. The opinion continues to resound, however, that the scant use of such material in interpretation stems more from the low quality of the material than any ideological resistance to such sources.

Judges have the most faith in cover letters accompanying bills; the synchronized updating of bill and letter has been considered the most effective way to improve the court’s opportunities to divine the intent of the legislator. Aside from the letters, positions expressed in Riigikogu session garner somewhat more trust, and judges proposed making the lead commission’s introduction more thorough (making it a report). In summary, we could say that while use of introductory material after a bill becomes law has been considered passable in theory, it has been and likely will continue to be a secondary method of judicial interpretation.

Full article in Estonian