We advised members of the Estonian Parliament (Riigikogu) on the constitutionality of selected amendment proposals to the draft Civil Crisis and National Defence Act (Bill 668 SE). Our analysis focused on how key state powers should operate during a crisis and whether the proposed solutions are compatible with the Constitution.
Constitutional guardrails as the foundation of effective crisis governance
Crisis legislation often expands state powers. Constitutional safeguards help ensure that these powers are exercised lawfully, proportionately and by the appropriate authority. In this way, the constitutional framework supports effective crisis response while preserving legal certainty, accountability and fundamental rights.
Separation of powers and clear accountability
Key issues included the proposed rules for replacing the president and the prime minister during a crisis and the extent to which the parliament may perform functions that normally relate to the executive branch. In particular, we assessed whether the parliament could appoint the heads of executive agencies. We concluded that such an arrangement would conflict with the constitutional principles of separation and balance of powers and could blur political accountability for executive performance.
Crisis governance depends on clear lines of accountability. The constitutional model expects the executive branch to organise and answer for its agencies, especially in security and crisis response. However, the parliament may participate in appointment procedures – for example, by giving its approval or holding public hearings.
The role of constitutional institutions in a crisis
We also examined the role of some constitutional institutions in crisis situations. Bodies such as the National Defence Council and the National Audit Office may be assigned crisis-related responsibilities, provided these remain consistent with their constitutional nature. During a crisis, it is essential that institutional responsibilities are clearly defined and decision-making remains transparent.
Finally, we assessed the conditions under which work obligations and other measures affecting fundamental rights may be introduced.
Our analysis emphasised that any restriction of fundamental rights must pursue a legitimate constitutional objective and be necessary and proportionate. The more intrusive the restriction, the higher the level of decision-making authority required. Where measures are as intrusive as those used under constitutionally regulated emergency regimes, the decision should remain with the government.
