Tallinn University legal scholar Madis Ernits argues the Constitution's purpose, not its literal text, matters most — and says the conflict of interest is unavoidable.

Under the Estonian Constitution, the Chancellor of Justice is tasked with exercising supervision over legislative state power, exercised by the Riigikogu. On the other hand, it is precisely this Riigikogu which is granted in the first instance the opportunity to elect the president. If the incumbent Chancellor of Justice runs for president, she would be seeking a favorable political decision from the very institution over which she exercises oversight.

Under Section 12(1), points 1 and 2 of the Chancellor of Justice Act, the Chancellor of Justice may not, while holding office, serve in another state role or take part in the activities of political parties. Interpreted in a grammatical sense, one could argue that this does not explicitly represent a ban on running for president, and if the Chancellor of Justice is elected president, they can simply resign from the position afterwards. However, this line of reasoning is not satisfactory, as the Constitution must be approached substantively.

Positions of Chancellor of Justice and head of state differ fundamentally

According to Section 139(1) of the Constitution, the Chancellor of Justice is an independent official who, in the course of their activities, supervises the conformity of legislation passed by the legislative and executive branches of both state power and local government, with the Constitution and legislation.

The same is reiterated in Section 1(1) of the Chancellor of Justice Act. Consequently, the Chancellor of Justice's constitutional function is to act as a supervisor and an overseer. The Chancellor of Justice does not take part in shaping political will, but instead monitors whether the political will which has coalesced stays within the confines of the Constitution. The role of the Chancellor of Justice is not to make political decisions in and of themselves, but to aid in ensuring the primacy of the Constitution. The role most closely resembles that of a judge. And as with the judges, the Chancellor of Justice is appointed to office.

According to Section 77 of the Constitution, the President is the head of state of Estonia, which is a political office. Under Section 78, the president, among other things, promulgates laws; may issue decrees and initiate amendments to the Constitution; nominates prime ministerial candidates; appoints and dismisses ministers; appoints various senior state officials and/or participates in their appointment by making proposals; represents the Republic of Estonia in international relations; is the supreme commander of Estonia's national defense, and submits proposals to the Riigikogu on declaring a state of war, mobilization, demobilization and any state of emergency.

While the Estonian president does not head up executive power or determine the country's political course to the same extent as the Riigikogu or government, they actively contribute to shaping policy through the powers set up by the Constitution. The president gets elected.

So these two offices are fundamentally different: The Chancellor of Justice is an independent official appointed to office, whereas the president is an elected political position.

Conflict of interest with Chancellor of Justice running for president

Section 139(1) of the Constitution does not just define the institution of the Chancellor of Justice and its main functions, but also establishes the independence of the Chancellor of Justice. That independence — as with the independence of judges — is at one and the same time both an institutional check and balance and a constitutional obligation on the office-holder.

The Chancellor of Justice must not only be independent, but must also give the appearance of being independent. The office carries with it an obligation to avoid all and any activities which may undermine that independence: The greatest threat to independence is conflict of interest.

According to the Constitution, it is vitally important in this context that the Chancellor of Justice is tasked with exercising supervision over the legislative state power, which, according to the Constitution, is exercised by the Riigikogu. In other words, under the Constitution, the Chancellor of Justice is also the supervisor of the Riigikogu, or that individual who monitors its activities.

On the other hand, it is exactly the Riigikogu that gets the initial opportunity to elect the president, and if it fails to do so, all members of the Riigikogu in any case take part in the presidential electoral body, known as the electoral college. Persons belonging to the legislative state power therefore take part in the election of the president come what may.

If an incumbent Chancellor of Justice initiates a run for presidential office, that person would be seeking a decision from the institution she or he watches over; a decision in which they have a direct personal interest, yet which that institution is under no obligation to make. In other words, in a case like this the Chancellor of Justice would be seeking a favorable political decision from the very institution over which they exercise supervision.

Conduct of this kind would then undermine the distance between the subject of oversight and the supervisor which characterizes the institution of the Chancellor of Justice. This would even already be the case if an incumbent Chancellor of Justice hints informally, in an unofficial conversation, at a desire to run for any political office.

Whereas the role of the Chancellor of Justice is to oversee the Riigikogu, the goal of any person seeking to become a presidential candidate is surely to win the support of the Riigikogu. These two roles are structurally incompatible.

The constitutional oversight relationship between the Chancellor of Justice and the Riigikogu would then transform from a one-sided supervisory relationship into a relationship of mutual dependence, something clearly not envisaged by Section 139(1) of the Constitution. As soon as an incumbent Chancellor of Justice indicates that they wish to run for political office, they consequently find themselves in a conflict of interest and a conflict of roles. The ensuing conflict of interest and conflict of roles is by no means short-lived or insignificant either, but is rather clear and fundamental.

The Supreme Court has found that conflicts of interest must be avoided with all state offices. In the case of the office of Chancellor of Justice, such a conflict of interest would seriously call into question their ability to perform the constitutionally prescribed task of an independent supervisor. In other words, by entering into a conflict of interest, the Chancellor of Justice would no longer be meeting the central obligation imposed on them by the Constitution — to be independent. In this way, it may not be permissible under the Constitution for any incumbent Chancellor of Justice to start the process of running for president.

Silence can damage the institution too

The independence of the Chancellor of Justice is not undermined solely by the public announcement of an intention to run for president or by expressing such a desire in informal conversations, but also — once a reasonable period for consideration has passed — by failing to respond when their name has been publicly associated with the office of president by any political force. In other words, excessive silence may also damage the independence of the institution.

When the potential presidential candidacy of the Chancellor of Justice gets publicly disseminated, yet they fail, for an extended period of time, to confirm or deny whether they are prepared to run, the situation arises where the Chancellor of Justice's subsequent conduct may objectively appear to be influenced by a possible desire to maintain good relations with those political forces whose support is needed to get elected president. A situation as ambiguous as that may serve to damage the institutional independence of the Chancellor of Justice, even when no actual agreement or decision to run has yet been made.

How long a reasonable period for consideration is cannot be determined unambiguously. However, if in the case of major life-changing events a consideration period of approximately one week might generally be considered reasonable, then in the case of the office of president, a two-week consideration period, say, could be seen as reasonable. Over a month of silence, however, would likely already cast a shadow over the independence of the Chancellor of Justice.

Potential consequences

What will happen if the Chancellor of Justice nevertheless goes ahead and announces their desire to run for president but without resigning from office?

There is no single answer to this which the majority of lawyers would immediately agree on. Theoretically, however, a situation arising from a conflict of interest, where the Chancellor of Justice no longer meets the constitutional requirement of independence, constitutes a problem that may also lead to legal consequences.

Under Section 25(1) of the Constitutional Review Court Procedure Act, the president may submit a request to the Supreme Court to declare the Chancellor of Justice permanently incapable of performing their duties. In most cases, the Chancellor of Justice is considered permanently incapable of performing their duties if their health has deteriorated to such a point.

But if one proceeds from the basis that the personal independence of the Chancellor of Justice is an indispensable prerequisite for holding the office, the view cannot be ruled out that a permanent role conflict which has objectively made independent supervision impossible may, too, constitute permanent incapacity to perform duties within the understanding of Section 25(1) of the Constitutional Review Court Procedure Act. Such an interpretation has not yet been considered in Estonian court practice.

To sum up

In 2002, Juhan Parts left the office of Auditor General in order to run for the Riigikogu at the 2003 parliamentary elections, then in April 2003 he became prime minister.

The Auditor General is, as is known, a high-ranking independent official in a similar way to the Chancellor of Justice. While a constitutional practice cannot be derived from this case, it nevertheless demonstrates that the head of an independent constitutional oversight body considered it appropriate to leave office ahead of moving into active politics. This supports the understanding that preserving the independence of an institution would require keeping separate political ambitions and the function of independent supervision.

A situation in which the Chancellor of Justice wishes to run for a political office is similar — according to the Constitution, it would be right for the Chancellor of Justice to first resign from office and only then announce their desire to run for political office. At the same time, the reasonable period for consideration should not be exceeded either.

The Estonian-language version of this piece was originally published via the State Gazette (Riigiteataja) blog.

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