RAIT MARUSTE ⟩ There's no requirement in Constitution to amend it to restrict the voting rights of non-citizens

In an article published in Delfi, my learned colleague Jüri Raidla has continued the line of argument that it is inevitable to amend the Constitution in order to make adjustments to the electorate in local government elections. There is no such categorical requirement to be found in the Constitution, however. What exactly and how needs to be amended, he leaves open. But that's not what matters in this case – though perhaps it would be good to make his line of argument clearer.

The ongoing debate somewhat resembles the dispute in the history of constitutionalism between originalists and non-originalists in America. Originalists were those who believed that the Constitution can and should be interpreted only in the manner envisioned and desired by the ones who created it. That was more than 200 years ago. This school of thought no longer holds much sway today. For understandable reasons.

Nowadays, constitutions are seen as something to be read and assessed in today's context. A similar change in the way of thinking, towards considering changes in society's circumstances, is also reflected in the doctrine developed and publicly embraced by the European Court of Human Rights, which holds that the convention is a living instrument. This means that the provisions of the European Convention on Human Rights evolve over time, and the court takes this into account. The conditions in the Republic of Estonia have also evolved significantly since 1992.

The core constitutional question in our current debate is what is meant by Section 156 (2) of the Constitution, which says that «in elections of municipal councils, persons who reside permanently in the territory of the municipality and have attained sixteen years of age have the right to vote, under conditions prescribed by a law.»

The wording «prescribed by law» is a well-known and widely recognized principle in constitutionalism. It means that the conditions for the exercise of a right or a freedom set forth in the Constitution are delegated to be regulated in more detail at the level of a legislative act. The requirement is that the regulation must be sufficiently clear and must not distort the essence of the right or freedom.

The ongoing debate somewhat resembles the dispute in the history of constitutionalism between originalists and non-originalists in America.

Let us recall once again that no such subjective right (these are set forth in the second chapter of the Constitution) as the right to vote can be found in the text of the Estonian Constitution. The Supreme Court has (correctly) designated this right as a fundamental right guaranteed by the Constitution without the (constitutional) requirement of the specific enactment of a statute, because otherwise the constitutional order and democracy would not be able to function.

The wording, under the conditions «prescribed by law», is used in the European Convention on Human Rights and is also used in European Union law. The European Convention on Human Rights uses this wording, for example, in Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience, and religion), Article 10 (freedom of expression), and Article 11 (freedom of assembly and association). Therefore, nothing new or unprecedented. I wouldn't be surprised if the wording used in our Constitution originates from the convention, as «traces» of the convention can be tangibly found in the section of our Constitution concerning rights and freedoms.

The wording «under the conditions and pursuant to the procedure prescribed by law» is also widely used in Estonian legislation. Such wording (clauses) can be found, for example, in the Employment Contracts Act, the Citizenship Act, the Public Information Act, etc.

The conditions in this context define who is entitled to vote, what conditions they must meet, etc. The conditions for the right to vote in local government elections are determined by each state on themselves, because the situation of states, their history and aspirations are very different. European countries therefore have a wide discretion in defining the circle of persons entitled to vote, the conditions thereof and the duration of their validity.

The procedure for exercising a right or a freedom establishes the procedural framework, meaning how an individual meeting the conditions can practically exercise their right. This is also a subject of regulation by ordinary legislation.

Jüri Raidla's claim that only the Internal Security Service can assess a security threat is somewhat strange. Yes, security information is collected and evaluated by the Internal Security Service and counterintelligence. But that doesn't mean they are the ones who decide about national security. An argument like this smacks of some other regime. In a democratic organization of the state, these kind of things are decided by the government and parliament after all.