The Continuity through the institution of President

This text was first treated in my master thesis called “Developments of the Estonian Constitutional and Institutional law and It’s Perspective on the Road to European Union” at Stockholm University in 1997/98. Furthermore it was also published in Estonian periodical newspaper Päevaleht in the same year.

I researched the legal basis of the Government of Estonia in exile. I found an article written by an Estonian scholar of law in exile, Artur Taska, some more Words About the Takeover of the Office of the President of Estonia in 1940. The article gives interesting fact on certain events in July 1940 which the author has also studied and which might be of interest to a wider circle of readers.
To, start I would give a brief overview of the historical background as well as some facts. In the afternoon of June 16, 1940, the Soviet Union presented an ultimatum to Estonia in which it demanded formation of a new Soviet-friendly government and consent for the occupation of the country by the Red Army threatening, if the consent was refused, to start military action against Estonia within ten hours. From the early morning of the next day to a couple more days the Soviet troops occupied the whole territory of Estonia. Thus, the actual power passed over to the occupation troops of the Soviet Union, and the constitutional bodies of the Republic of Estonia could not exercise their constitutional power and all their subsequent resolutions dictated and forced by the occupation forces were thus legally void. On June 21, 1940 the President of the Republic issued a directive on the nomination to office of a new Government of the Republic – dictated and manned by the occupation forces. It was followed by the resolution no. 175 of July and resolution no. 205 of July 19 of the President of the Republic on the convention of a new membership of the Riigivolikogu. On July 6, the President of the Republic issued a decree under which the both houses of the Riigikogu, called „hostile to the people“, were dissolved. On July 14 and 15 the elections of the Riigivolikogu were staged which was to substitute for both houses under the effective Constitution while the Riiginõukogu was not convened at all (forgot to be convened). The government of Johannes Vares had amended the Election Act in order to conduct the elections and this was another violation of the Constitution as under it amendment as laws was in the competent of the Riigikogu.
Here I would like to list some remarkable legislation which I shall refer to later in the text:
Directive no. 185 of July 21 of the President of the Republic in which Konstantin Päts, „in connection with the transfer to a new order“ deemed necessary to waive his authority and transfer duties of the President of the Republic to the Prime Minister, Dr. Johannes Vares.
Directive no. 186 of July 21 of the President of the Trepublic in which the Prime Minister, Dr. Johannes Vares, announced that he had assumed the capacity of the President of the Republic.
On July 23 the „Riigivolikogu“ made a resolution by which it satisfied the „request“ of Konstantin Päts to relinquish his presidential authority and imposed the duties of the President of the Republic on the Prime Minister Dr. Johannes Vares.
Directive no. 187 of July 23 of the President of the Republic on that the Prime Minister, Dr.Johannes Vares, had assumed the capacity of the President of the Republic.

Strange tales in connection with the takeover of office of the President
Tale 1
Next to all of the illegal actions leading to Estonian’s occupation and later consolidation of the occupation which events are well known from history and were briefly discussed above, wider public is probably not so well informed about the details in connection with the takeover of office of the President and the final address of K. Päts to the people of Estonia. Namely, of the above directive no. 185, 186 and 187 of the President of the Republic only no. 187 has been published in the Riigiteataja (the state Gazette, hereinafter: RT). Where the other two directives lost and what were were their contents- this was not known for a long time.
The first of the lost directives to be officially unveiled was Directive no. 186 of the President of the Republic whose copy was published in 1960 in the book The 1940 Socialist Revolution in Estonia. Documents and Materials. Hurrying forward with events let me mention that the said directive was printed under article 742 of RT no. 75; however, as shown later, it actually did not see the light. As mentioned above, the directive is about the assuming of the capacity of the President b the Prime Minister, Dr. Joh. Vares. Here it is important to stress that the said book does not say the word about directive no. 185 and 187 of the President of the Republic. It would be appropriate to compare the texts of the two directives that had the same contents:
Directive 186 of the President of the Republic:
“I assumed the capacity of the President of the Republic at 23:00 on July 21.”
Directive 187 of the President of the Republic, RT no. 79 art. 764 provide;
“On the basis of the resolution of the Riigivolikogu of July 23, 1940 I assumed the capacity of the President of the Republic at 17:00 on July 23, 1940.”
“Having heard the Request of the President of the Republic, Konstantin Päts, to relinquish his authority, the Riigivolikogu decided to grant the request and impose the duties of the President of the Republic on the Prime Minister, Dr. Johannes Vares. The above resolution was adopted by the Riigivolokogu at 19:00 on July 23.”
It can be concluded from the above documents that the takeover of the office of the President (though illegal) could have occurred only after the latter resolution or at the earliest at 19:00 on July, 23, 1940. However according to directive no. 187 of the President of Republic this occurred at 17:00 or two hours before the corresponding resolution was made by the Riigivolikogu. This merely illustrates the fact that the whole takeovers of the power have been staged and the “comrades” just messed up some trifle things. It also illustrates vividly the fact that the Soviet power needed the people to be brainless mass and therefore the so called people’s duties were used just to put on a farce and a show of hands- the Party and the administrative authorities designated by it had the actual power and they ignored all the others. The Soviet style of the “stage production” is further confirmed by directive no 186 of the President of the Republic under which the office of President was taken over 44 hours before the corresponding resolution was made by Riigivolikogu. As a blunder of couple of hours was not deemed important, directive no. 187 was eligible to be printed in RT but it was deemed to be keep the document which reflected the actual situation, i.e. directive no 186, which according to the above mentioned book published in 1960 can be considered the document proving to be the takeover of the office of the President, secret by hiding it for twenty years in the Central Archive of the October Revolution and Socialist Rebuilding Work in the Estonian SSR. On the basis of previously reviewed it is clear that formally Konstantin Päts retained his office until 19:00 on July 23, 1940. Depending on which directive we use as the basis, the Republic of Estonia had two or 44 hours two Presidents at a time – and they say that Estonia has a tradition to have one president at a time.
On the basis of Artur Taska’s article we can trace another trick of the Communist in connection with the takeover of the office of the President as well as learn that fate of directive no 185 of the President of the Republic. Namely the Chief Council of the Republic of Estonia, Ernst Jaakson writes to Artur Taska from New York in his letter dated March 24, 1977
“ … Some years ago we received from a former worker of the Estonian National Publishing House a Riigi Teataja no. 75 of July 22, 1940. According to the explanation given to use, this issue of the Riigiteataja had been collected together before it was disseminated. The same issue with different contents was published. Thus our archive has two Riigi Teataja’s of July 2, 1940 with different contents…”
I also sent a letter to the Consulate of the Republic of Estonia in New York and asked explanation on the mentioned circumstance. The Consul, Maris Tippo, replied my letter immediately on November 12, 1997 and wrote that everything was true. She also sent the copies of the RT’s. In forbidden number RT no 75 of July 22 which was thus the one which was confiscated, we can fin tow directive of the President of the Republic: no 185 and 186- therefore both of the lost directives. According to forbidden RT. No 75 the wording of the ultimate directive no. 185 of Konstantin Päts as the President of the Republic of Estonia was as follows:
“741 Directive no. 185 of the President of the Republic
At 23:00 on July 21, 1940
The convention of the new membership of the Riigivolikogu which occurred in accordance with my resolution no. 175 of July 5, 1940 and no. 205 of July 19, 1940 marks a new era in the organization of the Estonian’s national issues.
As my duties of the President of Republic were determined in the hitherto existing Constitution of the Republics of Estonia, then, as it is being transited to a new constitution, I deem it necessary to relinquish my authority and transfer the duties of the President of the Republic to the Prime Minister, Dr. Joh. Vares.
At the same time I call all the citizens of the Republic of Estonia to show all trust and support to the acting president of the Republic in all the steps he deems necessary to take for the welfare of the Estonia State and people, and would like to thank Estonian people for trust that they had in me, during my term of office.
K, Päts President of the Republic.”
This was the last address of our President Konstantin Päts tour people of Estonia, which of the accord of the occupation powers, never reached the people. So here everyone can draw his or her own conclusions. Perhaps it is also something for the historians to be studied.
For th sake of clarity I would also like to print here directive no. 186 which was publishes in RT no 75 but saw the light, as explained before, only in 1960:
“742. Directive no. 186 of the President of the Republic July 21, 1940.
I assumed the capacity of the ‘President of the Republic at 23:00 on July 21.
Jon Vares
Prime Minister in capacity of the President of the Republic”
We should mention that the permitted and published issue of RT no. 75 printed under article 741 directive no. 179 of the President of the Republic by which K. Päts was forced, on Jult 20, to release from office the rector of the Tallinn Technical University, Professor Vladimir Pavel. J. Semper which gives rise to new questions. Under article 742 therein directive no. 180 of the President of the Republic with the same date by which K. Päts, Joh. Vares and the Minister of Foreign affairs substituting for the Minister of Economy release from office the Director of the Tax Board, Ants Kukk, as of July 19, 1940, i.e. retrospectively.
Tale 2
This is not the end of the problem encountered with the subject matter “Two Presidents at a Time”. In the exile there were two simultaneous presidents too. The Government of the Republic of Estonia In Exile has faithfully and truthfully maintained the legal continuity of the Estonian state for which they shall be deeply respected. Under Article 46 of the effective Estonian Constitution the duties of the President of Republic were performed by the Prime Minister if the President of Republic was incapable of performing them. Thus the Prime Minister of the Government of the Republic of Estonia in Exile has also been in capacity of the President of the Government. Some outstanding Estonians in Exile, who gathered on March 1-3, 1953 near Dotmold in Augustdorf, Germany, did not want to accept this constitutional procedure. A. Acting President of the Republic of Estonia and decided to elect Alfred Maurer the Acting President of the Republic. It should be mentioned that pursuant to the Constitution, the institution of an acting President terminated powers of hitherto president. This action was clearly contrary to and material breach to an effective Constitution and other laws- and as such is legally void, Thus beginning March 3, 1953, we once again have two presidents – self constituted Alfred Maurer and August Rei, the constitutional Prime Minister of the Republic Of Estonia in Exile in capacity of the President of the Republic, We should also clarify the institutions of an acting resident), as presented by A. Rei , was provisional by character and hitherto President in the office. Without going too deep into history jurisprudence we just state here that the so-called “dual-power” lasted in essence for approximatelty18 months or at least September 20, 1954 when Alfred Maurer died. The ministry of Military Affairs Johan Holberg, who ho was the acting Prime Minister, did not actually start performing his duties in substituting for the deceased Prime Minister. Injustice was undone and the Government appointed to office by August Rei in Also on January 2, 1953 carried on the continuity abs remained in office albeit several changes, until the powers were transferred by Henrich Mark, the last Prime Minister in the capacity f the President of the Government in Exile, to the Constitutional state organs in Estonia 1992.
Tale 3
The story however did not end there. Immediately before the official termination of the activities of the Government in Exile and festive transfer of the power to the legal authorities created in Estonia as of October, 1992, another event of “dual power” came to light. Namely the Minister of Economy of the latest government in Exile, Mihkel Mathiesen, had declared himself Prime Minister and acting President on September 15, 1992. He had also appointed new Government in Exile to office composed of the persons who were unknown to the general public, such as Kalev Ots, the acting Prime Minister and the Minister of Education; Kalev Imala – the Minister of Courts and Interior Affairs; Paul Muuli- the Minister of Economy and Agriculture; Hanado Kruuv- the Minister of Social Affairs and Roads; and Harri Henn – the Minister of Foreign Affairs. The grotesque of the situation was enhances that the so –called line of the most senior member- which was a pure lie as at least two members of the Government in Exile were older than M. Mathiesen. Allegedly, the proposal of takeover was also made, to Jüri Toompuu who then lived in Estonia but he declined offer. Heinrich Mark, the Prime Minister in the capacity of the President of the Government in Exile has told the author that on October 5, 1992 he had met with the representative of the so called Nõmme Government to about continuation of the sitting Government in Exile and he had no idea of the existence of the Exile learned about the existence of self appointed President Mathiesen and the Nõmme Government appointed by him. On the very same day Henrich Mark dismissed Mikhel Mathisedn from the membership from the government in Exile, reasoning that the latter broke the oath of the member of the Government. Thus illegal or not, we once again had two Presidents and two Government during 21 days. We should mention here that in the time that the new Constitution was already in force in Estonia (!), having been adopted by the people of Estonia and the referendum of June 28, 1992. This revoked the formed Constitution which had come to the effect in 1938 and on the basis of Article 1 of which the people had adopted the new Constitution and M. Mathiesen has conducted his affairs. Thus we should take the standpoint that the beginning of adoption of new Constitution and based on the legal continuity, the Government in Exile and the President I Exile could act solely on the basis of the new Constitution during the last one hundred and two days of their office.
Tale 4
On the basis of new Constitution, the 7th Riigikogu was elected on ‘September- the first constitutional parliament after World War 2. The Estonia did not yet have the President. On October 5, 1992 Mr. Lennart Meri was elected President of the Republic. He took his oath of office on the following day, i.e. on Tuesday, October 6 ,1992 and thus assumed office. There still was not Constitutional Government – in the evening of October 8, 1992 the President authorized Mart Laar to form that Government, The Government of Laar, assumed office by taking oath of office before the Riigikogu. The Government in Exile transferred its powers festively before the Riigikogu on October 7, as already mentioned. However the question to whom arises. It could not transfer the powers to the Vähi’s Government as it was unconstitutional and this would have violated the principle of legal continuity. The Government of Laar did not exist yet.
We should take the standpoint, then, that the declaration of the Government in Exile of July 16, 1992 on the relinquishment of office was in conflict with the new Constitution and, as such, it was legally void. Under article 92of the new Constitution, the Government may resign upon several cases, however, in the given case we can speak about the resignation of the Prime Minister or convention of the new membership of the Riigikogu. The latter, as referred, occurred on October 5. Thus, the Government in Exile could and should have resigned on October 5and not on July 16 or October 7. One way or another, the resigned Government should have continued to perform duties until the President of the Government released the Government of the Republic (in Exile) upon the assumption of office of the new Government, There are no data indicating that President Lennart Meri released the preceding Government (in Exile) upon the assumption of office the Laar’s Government under article 92 of the Constitution. This would have been the correct thing to do according to the principle of legal continuity.
There are at least there questions which are not answered yet: 1. In terms of legal continuity was there a vacuum of power in the line of the government? 2. If the president of the Republic did not released the Government (in Exile upon the assumption of office of the new Government, then what does this mean in public law? 3. If the President of Republic officially released the unconstitutional Vähi’s Government upon the assumption of office of the Laar’s Government, did he or did he not proceed from the principle of legal continuity?
On the day that followed his address to the Riigikogu, i.e. on October 8, the President in Exile, Heinrich Mark, paid a visit to President of the Republic Lennart Meri. In conversation between H. Mark and the author Mr. Mark said it was only in this meeting with the president when he signed the document by which he resigned his office of President. Does this mean that here too there were two Presidents during a couple of hours? The answer is Yes and No. Under article 82(4) of the Constitution the powers of the President of the Republic shall terminate upon the assumption of office of new President of the Republic. Thus, the power of Mr. Heinrich Mark in the capacity of the President of Republic terminated as Lennart Meri assumed office, and in his capacity of the President in Exile, H. Mark had nothing to transfer in the Kadrioru Castle on October 8. On the other hand, it is still possible to claim that we had two Presidents between October 6 and 8- this time not because someone had wanted to usurp the power or refused to transfer it. It just accidentally happened so because Estonia has (from time to time) a tradition of two presidents!