Neo-militant Democracies in Post-communist Member States of the European Union

Joanna Rak, Roman Bäcker, Joanna Rak, Roman Bäcker

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000539066
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Communisme, post-communisme et socialisme

This book examines contemporary militant democracies in post-communist states in the European Union.Examining, through case studies, their broader relevance to political, legal, and social structures, this book looks in revealing detail at the struggles between these democratic and anti-democratic actors that share similar historical experiences of contentious politics, communism, and political transformation. It importantly unravels the tension between them, determining which are already authoritarian, and which are teetering on the brink of an anti-democratic breakthrough. Analysing regimes' continuance trajectories to capture how and what shaped the neo-militant aspects of democracies (neomilitancy) over time, the book accounts for why particular post-communist European neo-militant democracies emerge while others decline or transform into quasi-militant democracies despite transformation, how they differ from each other, what brings about the differences and similarities between them, and how and why they change over time. With right-wing populist parties coming to power on the back of fears associated with economic, social, and cultural globalisation and the misuse of state authorities to strengthen protective measures against threats to democratic institutions, the book represents a timely and important contribution. This book will be of key interest to scholars and students of Post-Soviet/Communist/East European Studies, Democratic Backsliding, European and Comparative Politics, Nationalism and Ethnic Conflict, Democracy and Dictatorship, Public Comparative Constitutional Law, Human Rights Law and Political Theory.

Part I

Neo-militant democracies under Russian pressure

DOI: 10.4324/9781003245162-2

2 Estonia

From neo-militant towards quasi-militant democracy?

Przemysław Osiewicz

DOI: 10.4324/9781003245162-3

Introduction

For a long time, Estonia was an exemplary case of successful political system transformation (Laar 2008). A former Soviet republic, it became a symbol of democratic changes in the region. At the beginning of the transformation, its political, social, and economic situation differed from those found in Poland, Hungary or the Czech Republic, which had not been incorporated into the Soviet Union after World War II. Estonia, in contrast, had been a Soviet republic and was much more dependent on the Kremlin. In 1991, after the dissolution of the Soviet Union, the state was restored on the basis of the 1938 Constitution of Estonia. Many Estonians were euphoric about regaining independence, although this process required a series of rapid political, economic, and social changes. A new Constitution was adopted in 1992 (Constitution 1992). The current political system of Estonia is a parliamentary representative democratic republic.

According to some scholars like Tonis Saarts and Petr V. Oskolkov, one can distinguish two types of democracies in Estonia. Saarts called the first one “a nationalist defensive democracy.” This is connected with the activities and traditions of the Estonian Citizens’ Committee. The committee placed national security above democratic values. Its approach was confrontational and nationalistic. The second type is “civic democracy” and derives from the Popular Front of Estonia. Members of this movement represented a less radical stance, especially with regard to the assessment of the Soviet past and the role of the Russian-speaking minority in the new political realities of independent Estonia (Oskolkov 2020, 7). These two directions still continue to shape the Estonian political scene. As the meaning of the concept of nationalist defensive democracy is equated with neo-militant democracy, the latter term will be used in the remainder of this text (Sajó 2006).

The Estonian political system has long been characterised by stability, transparency, and predictability. However, the latest data shows that the situation began to change after the 2019 parliamentary elections, in which the right-wing and nationalist Conservative People’s Party of Estonia (EKRE) achieved significant gains (Petsinis 2019).

Although Freedom House still classifies the Estonian political regime as a consolidated democracy, Estonia’s score declined from 6.11 in 2018 to 6.07/7 in 2019 (Freedom House 2020b). A similar drop in rating was noticeable in the case of the Democracy Index. According to the 2019 ranking, Estonia is a flawed democracy (Democracy Index 2019). Twenty-two states were ranked as full democracies, fifty-four as flawed democracies, thirty-seven as hybrid regimes, and fifty-four as authoritarian regimes. Estonia’s score slightly declined and took 27th place, behind Japan, the United States, and Malta (Hankewitz 2020). Are these tell-tale signs of Estonia drifting from neo- to quasi-militant democracy?

This chapter aims to determine what was the pace of movement of Estonia on a continuum of ideal types of neo- and quasi-militant democracy. Joanna Rak defines quasi-militant democracy as a set of tools limiting human rights and political freedoms. Moreover, these tools are used by state bodies in order to weaken democracy (Rak 2020b, 113). Thus, it is the antinomy of a neo-militant democracy (Rak 2020a).

In order to determine whether Estonia is shifting towards quasi-military democracy, one has to analyse opposing forces working on four levels: the freedom of a political nation to make sovereign decisions; the range of alternatives for selecting decision scenarios by a political nation; the level of rationality of the political nation’s deliberation prior to rendering particular decisions; and the level of institutions securing the existence of the rule of law and civil society and safeguarding the sustainability of sovereignty.

Election law, the decision-making process, and the sovereignty of the political nation

According to the Constitution, “Estonia is an independent and sovereign democratic republic wherein supreme political authority is vested in the people” (Constitution 1992). As in other well-functioning democratic systems, this is exemplified by the right to elect representatives to the parliament and local authorities.

Principles of active election law are specified in the Riigikogu Election Act of 2002. The elections are free, general, uniform, direct, and secret (Article 1.2). They take place every four years in March (Article 2.1). Estonian citizens who have attained the age of eighteen have the right to vote (Article 4.1). All persons divested of their active legal capacity with regard to the right to vote cannot participate in elections (Article 4.2). This applies primarily to incapacitated people. A similar provision applies to all persons who have been convicted of criminal offences by a court and are imprisoned (Article 4.3).

The same rules are also specified in the European Parliament Election Act of 2002. It clearly states that Estonian citizens who have attained eighteen years by election day are eligible to vote (European Parliament Election Act 2002, Article 4.1). The same provision refers to other EU citizens if they reside in Estonia and have not been deprived of the right to vote in their countries of origin. Similarly to standard regulations in other democratic states, a person is not eligible to vote if she or he “is divested of the active legal capacity with regard to the right to vote; he or she has been convicted of a crime by a court and is serving a sentence in a penal institution” (European Parliament Election Act 2002, Article 4.3).

Slightly different regulations apply to local elections. They are specified in the Constitution and Local Government Council Election Act of 2002. According to Article 156, persons who are at least sixteen years old and reside permanently in the territory of the local authority are eligible to cast their votes and elect local representatives (Constitution 1992). Every Estonian citizen and citizen of the European Union who has the right to vote and has attained eighteen years of age may stand for office (Local Government Council Election Act 2002, Article 5.5).

Principles of passive election law are also specified in the Riigikogu Election Act of 2002. The parliament is unicameral and comprised of one hundred and one members (Riigikogu Election Act 2002, Article 1). All Estonians who have attained the age of twenty-one by the last day of registration are eligible to be candidates unless they are divested of their active legal capacity with regard to the right to vote or convicted of criminal offences (Article 4.5–4.6). Additionally, active members of the Defence Forces are not allowed to stand for parliament.

Though the election system is proportional, allocation of seats to parties at the upper tier is quite complicated. Until the reform of 2002, candidates could be elected for compensation mandates even if they failed to get any votes. Amendments introduced new regulations on the basis of which candidates have to get at least five percent of votes at the district level in order to be eligible to be awarded a seat from the compensation mandates. If a candidate fails to reach these five percent, the next person on the list is given the seat (Nunez 2020, 8). It is an efficient neo-militant democracy measure peculiar to European states.

In the case of election to the European Parliament, all provisions are contained in the European Parliament Election Act of 2002. Estonian citizens who are at least twenty-one years old can stand as candidates (European Parliament Election Act 2002, Article 4.1). A similar provision refers to those EU citizens who reside in Estonia. They also have to attain twenty-one years of age by election day (Article 4.5). There are, however, some groups of citizens which are excluded. These are persons divested of their active legal capacity with regard to the right to vote, persons convicted of crimes and serving their sentences in penal institutions as well as active members of the Defence Forces (Article 4.6).

The situation is different in the case of the presidential election. Candidates who would like to stand for presidential office have to be citizens of Estonia by birth and at least forty years of age (Constitution 1992, Article 79). Detailed rules and procedures for electing the president are set out in the President of the Republic Election Act of 1996. The act was amended in 2013 (President of the Republic Election Act 2013). The president of Estonia is elected by members of parliament; therefore, these elections are neither universal nor direct (Article 1), and there are questions as to whether or not changes should be implemented. The current system is often criticised for its complexity. In 2017, President Kersti Kaljulaid clearly stated that the president’s direct election was no issue in Estonia (Cavegn 2017). To justify this fact, it can be emphasised that the president of Estonia plays more of a purely ceremonial role within the political system.

In 2014, Prime Minister Taavi Rõivas promised to present proposals aimed at improving the electoral process so as to make it more competitive and transparent. The main challenge was related to the balance between party-backed and independent candidates. The new head of government declared new regulations which would also include significant changes to election advertising and the abolishment of compulsory deposits for those political parties who take part in elections for the first time. Yet, in 2020, a deposit equal to a monthly wage was still required for each candidate (Sustainable Governance Indicators 2020).

The 2015 parliamentary elections were classified as fair and free by external experts and commentators. They paid attention to the new regulations which had been adopted in 2014. The system became more transparent and allowed the competent entities to control the course of the elections and the system of public financing for parliamentary parties. The observers representing the Organization for Security and Co-operation in Europe (OSCE) described the Estonian system as “a generally solid legal framework,” although they also declared that some elements could still be improved in the future, e.g., equal access of smaller political parties to airtime in public media and the introduction of the possibility of subsidising parties that have not exceeded the election threshold (OSCE Estonia 2015).

The proportional representation system applies to both parliamentary and local council elections. The adopted system still guarantees that no single political party can gain an absolute majority of votes in Estonia. The constitutional and statutory solutions with regard to the election law guarantee respect for democratic values and transparency of the entire election process. Only the issue of increasing election opportunities and equal access to airtime in public media for small political parties requires changes. Nevertheless, the solutions applied in their present form guarantee respect for the interests and sovereignty of the political nation.

One of the most complex political issues is related to the Russian minority. The experiences of World War II and subsequent Russian domination of Estonia within the Soviet Union continue to negatively affect the level of mutual trust between Estonians and Russians. In the period between 1944 and 1989, the process of gradual Russification led to a decline in the share of Estonians in the total population from ninety to sixty percent (Tiido 2015, 52). Regaining independence stopped this process.

The most significant changes were introduced with the amendments to the Citizenship Act, which entered into force on 1 January 2016. On their basis, a child who has at least one parent with stateless status who is legally resident in Estonia obtains Estonian citizenship. Moreover, the introduced regulations were also applied to all children of stateless persons who, at the time of the changes, were under the age of fifteen (UNHCR Regional Representation for Northern Europe 2016, 77). Yet the number of Russians without Estonian citizenship or with a Russian citizenship is still high. According to official statistics, they accounted for six percent of the total population of Estonia in 2019 (European Commission 2019). They are only residents and as such they are eligible to elect neither members of the national parliament nor members of the European Parliaments. These Russians can only vote in the municipal elections.

Estonia’s main civil society support agency, the National Foundation of Civil Society, issued a special report on Russian-speaking NGOs in Estonia. It revealed that even though Russian-speaking NGOs are smaller than Estonian-speaking ones, there were no crucial differences between the two types in terms of operational capacities. The researchers found that NGOs using both languages in their daily activities often performed better than only Estonian- or Russian-speaking ones (Freedom House 2017).

According to the Freedom House report of 2020, stateless people are still excluded from national elections. Although they are permitted to vote in local and European elections, they cannot run as candidates or join political parties (Venice Commission 2020). Thus, it can be concluded that the Estonian electoral system does not limit the political nation with the exception of a part of the Russian-speaking population who either has not acquired Estonian citizenship or remains stateless. Yet it is not clear if this exclusion worsens or improves the quality of subjectivity of the political nation.

The Estonian party system and the functioning of the political nation

On this level one can analyse all procedures and legal requirements related to the registration of political parties. The main document regulating such issues is the Estonian Political Parties Act of 1994 with further amendments. According to Article 1 Paragraph 1:

a political party is a voluntary political association of Estonian citizens, ...