Ernits questions chancellor’s presidential candidacy

Madis Ernits argues that Estonia’s Chancellor of Justice should not seek the presidency without first leaving office, in an opinion article published by ERR and originally appearing on the constitutional law blog Riigiõiguse blog.

He says an incumbent Chancellor of Justice who runs for president would be seeking a favourable political decision from the institution over which the chancellor exercises supervision. The Riigikogu, Estonia’s parliament, has the first opportunity to elect the president.

Under the Chancellor of Justice Act, the chancellor may not hold another state office or participate in the activities of political parties while in office. A literal interpretation could suggest that the law does not expressly prohibit the chancellor from becoming a presidential candidate and that the officeholder could resign if elected. Ernits says this reasoning is insufficient because the Constitution must be interpreted substantively.

The offices of Chancellor of Justice and president are fundamentally different, he argues. Under the Constitution, the Chancellor of Justice is an independent official who supervises whether the legislation of the legislative and executive branches of government, as well as local government legislation, complies with the Constitution and the law.

The chancellor’s constitutional role is therefore that of a supervisor and controller. The officeholder does not participate in shaping political will but checks whether political decisions remain within constitutional limits. The chancellor’s task is not to make political decisions but to help ensure the supremacy of the Constitution. Ernits says the role most closely resembles that of a judge.

The president, by contrast, is the head of state and holds a political office. The president promulgates laws, may issue decrees and initiate constitutional amendments, nominates a candidate for prime minister, appoints and dismisses ministers, appoints or helps appoint a number of senior state officials, represents Estonia in international relations and serves as the supreme commander of national defence.

The president also submits proposals to the Riigikogu on declaring a state of war, mobilisation, demobilisation or a state of emergency. Although Estonia’s president does not direct the executive branch or determine the country’s political course to the same extent as parliament or the government, the president actively participates in shaping policy through the powers set out in the Constitution.

Ernits concludes that the Chancellor of Justice is an appointed independent official, while the president is an elected political officeholder. The Constitution also establishes the chancellor’s independence as both an institutional safeguard and a constitutional duty. The chancellor must not only be independent but also appear independent, he writes.