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The President of the Republic refused to promulgate the Act on Amendments to the Government of the Republic Act and to Other Acts Arising Therefrom
11.03.2004


President Arnold Rüütel today at Kadriorg signed a resolution not to promulgate the Act on Amendments to the Government of the Republic Act and to Other Acts Arising Therefrom passed by the Riigikogu on 25 February 2004.

President Rüütel in his resolution pointed out that several provisions of the passed act conflicted with the Constitution and did not conform to the principle of legal clarity.

According to the resolution of the President of the Republic, the subsections 3, 4 and 8 of the passed act, which should supplement the Government of the Republic Act by § 491, and amend § 50 and § 83, conflicted with § 3 section 1, § 10 and § 94 section 2 of the Constitution.

§ 491, section 1 of the Government of the Republic Act lays down that the Minister of Regional Affairs shall direct the structural units of the Ministry of Internal Affairs that are responsible for planning and coordination of local government, regional administration and regional development. Furthermore, § 491, section 2 of the same act lays down that the Minister of Regional Affairs in areas specified in § 491, section 1 shall be vested with several rights of a minister as set out in the Government of the Republic Act (exc. § 49 section 1). This kind of regulation provides for an ambiguous legal status of the Minister of Regional Affairs, which is at discord with one of the elements of legal certainty deriving from the principle of the rule of law enshrined in § 10 of the Constitution - legal clarity, and enables contradictory interpretations.

§ 491, section 3 of the Government of the Republic Act lays down that in case of disagreement between the Minister of Internal Affairs and the Minister of Regional Affairs, concerning direction of structural units reporting to the Minister of Regional Affairs, the matter shall be decided by the Government of the Republic. This provision violates the principle deriving from § 94, section 2 of the Constitution, according to which a minister shall direct the corresponding ministry and manage issues within the area of government of the ministry independently and bearing the sole responsibility for it. The provision laid down in the amended act limits the powers of decision of a minister to direct his ministry and to manage independently and bearing for it the sole responsibility issues within the area of government of the ministry, since it enables the Government of the Republic to interfere in the competences of a minister who directs a ministry.

According to the new version of § 50 section 2 of the Government of the Republic Act, a minister who does not direct a ministry shall, in issues within his or her area of activity, countersign a regulation of a minister pursuant to procedure specified by the Government of the Republic. Such a wording does not answer the question, whether the act of countersigning a regulation of a minister is legally binding or not. While interpreting the named provision, having simultaneously regard to § 94 section 2 of the Constitution, it is possible to state that for the minister the countersignature is not legally binding, i.e. the refusal to countersign can neither prevent the minister from issuing a regulation, nor the regulation from taking effect. With regard to the aforementioned, the new version of § 50, section 2 of the Government of the Republic Act does not comply with legal clarity deriving from the principle of the rule of law and, thus, runs counter to § 10 of the Constitution.

According to the amended wording of § 83, section 1 of the Government of the Republic Act, a county governor shall be appointed to office by the Government of the Republic on the proposal of the Minister of Regional Affairs for a term of up to five years. Thus, the act, as different from the regulations in effect, does not determine exactly for how long shall a county governor carry out his duties. In accordance with the common practice of the European legal system, public servants are employed in public service as provided by law either temporarily, for a specified term, or an unspecified term. Furthermore, with respect to officials of the same category, a uniform regulation of the term of service has to be guaranteed. The amended provision vests the Government of the Republic and the Minister of Regional Affairs concerning their proposal with legally unrestricted powers of discretion to decide for how long the specific county governor shall be appointed. This does not comply with the principles of legality and legal certainty as respectively laid down in § 3 and § 10 of the Constitution.

Pursuant to the regulations set out in § 83 section 5 subsection (1) of the Government of the Republic Act, a county governor can, on the proposal of the Minister of Regional Affairs, be prematurely released from office by a reasoned decision of the Government of the Republic. This kind of legally unrestricted discretionary power conflicts with the principles of the rule of law (§ 10 of the Constitution) and legality (§ 3 section 1 of the Constitution). Ensuring legal certainty requires that the basis of premature release of a county governor were determined by law, for the legitimacy of executive power is to a decisive extent guaranteed by the legal basis of the latter.

The wording "Applicants shall qualify for the office of a county governor in a public competition" laid down in § 83 section 2 of the Government of the Republic Act does not comply with the principle of legal clarity either, for the legal meaning of the term "qualify" has been left undefined.


Public Relations Unit of the Office of the President
Kadriorg, March 11, 2004


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