President, Riigikogu and the Supreme Court: The Returned Law
The Riigikogu passes the Public Order Amendment Act by 52 votes. The President refuses to proclaim it, citing § 107 of the Constitution and arguing that the ban on a certain form of public assembly disproportionately restricts freedom of assembly. The President returns the Act to the Riigikogu with reasoned objections. Two weeks later the Riigikogu debates it again and adopts it unchanged by 54 votes. The President still believes it is unconstitutional. The Minister of Justice says the President must now proclaim it because the Riigikogu has spoken twice. A journalist asks whether the President can instead send the Act to the Supreme Court, and what happens if the Court agrees with the President. The Chancellor of Justice has also received a petition from an NGO.
1. After the Riigikogu re-adopts the Act unchanged, what options does the President have under the Constitution?
Read the worked answer
Under § 107, after a returned Act is re-adopted unchanged, the President has two lawful choices: proclaim it or appeal to the Supreme Court to declare it unconstitutional. The President cannot refuse a second time on the same political objections, and the Minister's statement that proclamation is the only option is incorrect. Dissolution is not a response to a returned law; it is tied to no-confidence and government resignation situations. The President's objections should now be framed as constitutional arguments for the Court.
2. If the President appeals, what can the Supreme Court do and what is the effect?
Read the worked answer
The Supreme Court's Constitutional Review Chamber can review the Act and, if it finds a conflict with the Constitution, declare the Act or the offending provision unconstitutional and annul it. The President then does not proclaim the annulled part. If the Court finds no conflict, the President must proclaim the Act. The Court's judgment is final and binding; it is not an advisory opinion. The Court can also limit the temporal effect of annulment in some cases, but the default is that the unconstitutional provision cannot apply.
3. Could the Chancellor of Justice play a role even if the President proclaims the Act?
Read the worked answer
Yes. The Chancellor of Justice has a constitutional review function and can bring a matter to the Supreme Court if legislation conflicts with the Constitution. The NGO's petition gives the Chancellor a basis to investigate. Proclamation by the President does not erase the Chancellor's power, although the timing and procedural routes differ. The Chancellor can also mediate or issue recommendations. So the issue can continue even if the President proclaims the Act.