The current version of the Preamble of the Constitution of the Republic of Estonia shows clear signs of institutionalization of ethno-nationalist sentiments since its formulation in 1992, and the subsequent reform in 2007. The Preamble in its post-1992 version establishes a clear distinction between ethnic Estonians (Estonian nom.: eesti rahvus) and citizens of Estonia (Estonian nom.: Eesti rahvas), and the responsibility of the state towards both categories. As stated in the Preamble:

With unwavering faith and a steadfast will to strengthen and develop the state (1) which embodies the inextinguishable right of the people of Estonia [Eesti rahvas] to national self-determination and which was proclaimed on 24 February 1918, <…> (4) which must guarantee the preservation of the Estonian people [eesti rahvus], the Estonian language and the Estonian culture through the ages [3].

The two conclusions can be drawn from these formulations. First, the Preamble establishes two different relationships between the mentioned categories. Estonia’s citizenry (Eesti rahvas) is a source of self-determination of the republic according to the first item quoted above, while the other one elevates ethnic Estonians (eesti rahvus) as a special group whose preservation (along with respective attributes of this group) shall be guaranteed by the state. Second, this distinction has embedded a privilege and a subtle sign of superiority. It was well summarized by an Estonian scholar Priit Järve who emphasized that “the citizens (all ethnic groups together) establish a state and adopt a constitution to preserve one ethnic group – the Estonians – and its culture” [4].

This rather peculiar relationship between Estonian citizens, ethnic Estonians, and the state is a relative novelty in the constitutional tradition of the Republic of Estonia. None of the three pre-1992 versions of the Preamble of Estonian Constitution (from 1920, 1933, and 1938 respectively) had either a clause or reference that established a separation between the concepts of citizenry and ethnic group. In fact, all previous Preambles addressed “Estonian nation” (Eesti rahvas) only, largely in the context of self-determination, following civic nationalist discourse. This can arguably be attributed to the nature under which the first Estonian republic (1918-1940) was conceptualized. Adopted in February 1918, the Declaration of Independence (DoI) addressed “all the peoples of Estonia” (Manifest Eestimaa rahvastele) and guaranteed the right of cultural autonomy to Estonia’s ethnic minority groups (division 2 of DoI) [5]. Despite the fact that this high level of inclusiveness was dictated primarily by Realpolitik – a very pressing need to unite all inhabitants of Estonia before the upcoming struggle for independence [6] – it did extend into state policies once the state-building stage was over. A notable example is the Law on Cultural Self-Government for National Minorities (Eesti Vabariigi vähemusrahvaste kultuuriomavalitsuse seadus) of 1925. It established a truly unique approach to non-territorial autonomy, which granted ethnic minorities’ Cultural Councils authority over schooling and cultural matters across entire country [7].

Nevertheless, re-established independent Estonia broke up with the tradition of civic nationalism by introducing ethno-centricity in the Constitution. Its Preamble from 1992 introduced a distinction between ethnic Estonians (eesti rahvus) and Estonia’s citizenry (Eesti rahvas), with clearly formulated responsibility of the state to ensure the preservation and survival of the Estonian ethnic group and the Estonian culture throughout the times (eesti rahvuse ja kultuuri säilimise läbi aegade).

It is noteworthy, however, how this formulation emerged. The first session of the Constitutional Assembly (Põhiseaduse Assamblee) took place on 13 September 1991. Its main task was to draft the Constitution of the Republic of Estonia, following the legal tradition from the first Republic where special institutions were created solemnly for fulfilling said task[8]. By the end of September 1991, the Constitutional Assembly received six working drafts and proposals authored by representatives of various parliamentary groups: by I. Gräzin; by E. Talvik and J. Kaljuvee; by J. Raidla; by A. Leps; by J. Adams; and by K. Kulbok [9]. All the proposals except for the one by Gräzin were freshly compiled, while the former was dated 5 May 1989 and titled “Working Example of the Constitution of the Democratic Socialist Republic of Estonia” (Eesti demokraatliku sotsialistliku vabariigi põhiseaduse töömakett). Nevertheless, the Constitutional Assembly accepted its submission.

Knowing that most submissions were heavily based on the previous versions of the Constitution, the proposed Preambles rather unsurprisingly followed the same civic nationalist discourse. Gräzin’s Preamble addressed all citizens of Estonia regardless of their ethnicity (Eestimaa kõigist rahvustest kodanikud); Talvik & Kaljuvee, Raidla, Leps, Adams, and Kulbok utilized the concept of Eesti rahvas, strictly in the context of right for self-determination.[10] As with previous version of the Preamble, none of the proposals included a specific reference to the ethnic Estonian group, eesti rahvus, or its culture.

The dramatic turn in modus operandi was brought during the 24th session of the Constitutional Assembly on 6 February 1992. Liia Hänni introduced the amendment of the fourth, ethno-centrist paragraph that is currently known to us. The amendment was justified as the request of the people who reportedly submitted numerous appeals [11]. She argued that the version then under discussion did not establish the goal for the state, which “must certainly be ensuring the preservation of Estonian rahvus and culture” [12]. The amendment was unanimously adopted and thus divided the initially all-encompassing Eesti rahvas into two fragments. The commentary of the Expert Commission on the Constitution of Estonia (1996-1998), submitted to the Ministry of Justice, indicates that both legislators and experts were aware of the innate differences of the said terms. Justification for their use was stated as the need to establish jus sanguinis as opposed to jus soli when designing future citizenship policies [13]. Another possible explanation may be the need to respond to the drastic changes in ethnic composition brought by the Soviet occupation. The versions of the Preamble were enacted during the period of the first republic when ethnic Estonians constituted approximately 87 percent of the population (according to 1922 census). However according to the 1989 census, ethnic Estonians made up approximately 62 percent of the population [14], the lowest percentage in the country’s history ever recorded.

Nevertheless, it is increasingly hard to attribute the 2007 revision of the Preamble to changes in the country’s demographics and emotional scars left from the Soviet occupation. On 12 April 2007, the Parliament unanimously adopted a new amendment to the fourth clause of the Preamble. The previous version stated the need to preserve Estonian rahvus and culture, while the 2007 modification included Estonian rahvus, the Estonian language, and the Estonian culture. The revision was first introduced by the Reform Party (Reformierakond) at the 10th Riigikogu (2003-2007) and adopted by the subsequent 11th Riigikogu (2007-2011) [15].

There are few things that suggest that this amendment was driven by ideological, rather than practical considerations. First, the status of Estonian language was already protected by several non-declarative articles of the Constitution (Art. 6, 51 (1), and 52 (1)). Thus, the practical need to strengthen the status of the Estonian language and its preservation was basically absent. Second, ideological motivations were evident from the reasoning utilized during the session on 12 April 2007. Both a Reform Party MP Paul-Eerik Rummo and an MP Andrus Herkel from the IRL (Isamaa ja Res Publica Liit) justified the modification by the need to preserve the purity of the language in the times of digitization. However, Rummo also highlighted the need to transmit the symbolic value of Estonian to non-Estonian speakers: “There are many people in Estonia whose native language is not Estonian. In my numerous encounters with them, I have heard, among other things, such reasoning: why we must learn your language if you yourselves disrespect it by using international slang.” The same protectionist approach was taken by Mark Soosaar, an MP from the Social Democratic Party. He proposed widening the matter by including “Estonian cultural heritage” (eesti kultuuripärand) in the Constitution. Evelyn Sepp from Central Party (Keskerakond) confirmed that this amendment was “a political statement”. Karel Rüütli from People’s Union of Estonia (Rahvaliit) supported the proposal by referring to the need to protect Estonian language from “the liberal approach to life and influence of other languages” [16]. Although raised concerns are somewhat valid, it remains unclear why the outlined issues could not be handled by already existing regulatory articles of the Constitution.

The commented edition of the Constitution commissioned by the Ministry of Justice also does not leave much room for a doubt about the ethno-centrist ideological motives. As it was stated, the reference to language in the Preamble serves as a “recognition of Estonian language as the core of the nation”[17]. Curiously, the commentary uses the “ethnic” world rahvus – and not “civic” rahvas – to define the word “nation”.

Although preambles usually have a declarative nature, the Preamble of the Constitution of Estonia is often utilized to interpret regulatory provisions of the Constitution [18], court rulings [19], and / or a comparative analysis of the enacted policies [20]. Hence the strengthening of the already existing ethno-centrist clause will inevitably shift policy- and decision-making towards ethnic favoritism. Though the references towards preservation of the ethnic Estonian group and its culture were relatively harmless, the inclusion of language might prove to be an Apple of Discord in the future. Specifically, it can be utilized in tilting the dispute over school education in the Russian language towards Estonian-only system, as well as practically rules out any potential debate over introduction of the Russian language as the second official language of Estonia. In the latter case, although the acknowledgement of Russian as the second official is impossible due to ideological reasons (in theory, Art. 6 which specifies the official language can changed by referendum, as established by Art. 162 of the Constitution [21]), the post-2007 Preamble reinforces already a strong legal basis to deny any discussion on the matter long before the initiation of this hypothetical amendment.

References:

[1] Maruste, R., 1997. Põhiseadus ja selle järelvalve . 1st ed. Tallinn: Juura Õigusteabe, p.51.
[2] Rull, A., Tamme, T. & Võhandu, L., 2016. A Structural and Grammatical Analysis of the Estonian Constitution. Baltic Journal of European Studies 6(2), pp. 76-95.
[3] Ministry of Justice, 2012. The Constitution of the Republic of Estonia. Special edition for 20th anniversary of the Constitution of Estonia. Tallinn: Juura Õigusteabe, p. 3.
[4] Järve, P., 2000. Ethnic Democracy and Estonia: Application of Smooha’s Model. ECMI Working Paper No.7, p.7.
[5] Declaration of Independence of Estonia [Iseseisvusmanifest], 1918. Estonian full text is available at: https://www.riigiteataja.ee/failid/manifest.html.
[6] Smith, D. J., 2016. Estonia: A Model for Inter-War Europe? Ethnopolitics 15 (1), pp. 89-104.
[7] Ibid., p. 89-90.
[8] The Constitution of 1920 was drafted by the Constituent Assembly (Asutav Kogu); the Constitution of 1938 by the National Assembly (Rahvuskogu).
[9] Maruste, R., Schneider, H., Anton, T., Järvelaid, P. (eds), 1997. Taasvabanenud Eesti Põhiseaduse eellugu. 1st ed. Tallinn: Juura Õigusteabe, p. 31.
[10] Ibid., pp. 190-297.
[11] Ministry of Justice, 2014. Eesti Vabariigi Põhiseaduse juriidilise komisjoni lõpparuanne, https://www.just.ee/sites/www.just.ee/files/elfinder/article_files/pohiseaduse_preambula.pdf.
[12] Ministry of Justice, 1997. Põhiseadus ja Põhiseaduse Assamblee. Koguteos. 1st ed. Tallinn: Juura Õigusteabe, p. 761.
[13] Ministry of Justice, 2014., op. cit., note 11 above.
[14] Statistics Estonia, 2012. History of Population Censuses in Estonia. Population 1881-2000, http://www.stat.ee/62931.
[15] Riigikogu of Estonia, 2007. Stenogrammid: XI Riigikogu stenogramm I istungjärk Neljapäev, 12. aprill 2007, kell 10.00, http://stenogrammid.riigikogu.ee/et/200704121000.
[16] Ibid.
[17] Narits, R., Kalmo, H., Madise, L. Schneider, H., 2017. Sissejuhatus ja preambul. In: Ü. Madise, et al. (eds). Eesti Vabariigi Põhiseadus – kommenteeritud väljaanne. Tartu: Kirjastus Juura, p. 38.
[18] Merusk, K. & Narits, R., 1998. Eesti konstitutsiooniõigusest. 1st ed. Tallinn: Juura, p.33.
[19] For example see: Riigikohus [Supreme Court of Estonia], 1998. Riigikohus – Constitutional judgement 3-4-1-7-98, https://www.riigikohus.ee/en/constitutional-judgment-3-4-1-7-98.
[20] For example, see: Tomusk, I., 2017. Keelekasutuse aluspõhimõtted Eesti Vabariigi Põhiseaduses ja nende rakendamine [Basic Principles of Use of Language as Reflected in Estonian Constitution, and Their Application]. Journal of Estonian and Finno-Ugric Linguistics 8 (1), pp. 303-321.
[21] Ministry of Justice, 2012, op. cit., note 3 above, p. 34.