The Politics of Constitutional Change in Latvia

Janis Penikis

Indiana University South Bend

(Paper delivered at the Association for the Advancement of Baltic Studies 17th Conference, Georgetown University, Washington, D.C., June 15—17, 2000)

(My thanks to Ms. Anita Vitolina, Senior Consultant at the Legal Office of the Parliament of Latvia, for her valuable assistance with parliamentary documents.)

Since the renewal of independence in 1991, Latvia has retained the constitution (Satversme in Latvian) adopted in 1922 as the basic political and legal framework of its statehood. Unlike its Baltic and East European neighbors, Latvia has had no constitutional conventions, drafting committees or referendums to design new constitutional rules since the collapse of the Soviet Union. The 1922 Satversme, however, has not remained entirely static. Its provisions have been formally changed on four occasions. In addition, various practices of government officials have had the effect of altering the scope and functioning of the different constitutional offices and thus have amounted to informal but significant constitutional change. The intriguing political fact is that these changes have occurred with minimal controversy. In fact, outside a small circle of politicians, academics, and journalists, the wider Latvian public has taken virtually no notice of them at all.


The 1922 document

The original constitutional document was adopted on February 15, 1922, by a 152-member Constituent Assembly, which had been elected in a general election and had begun work on May 1, 1920. The actual drafting of the constitution was done by a 26-member committee. The Assembly as a whole acted as an interim parliament for the newly established Latvian state, and thus its time was divided between the tasks of an ordinary legislative body and those of a constitutional convention. The drafting committee presented a draft constitution in two parts: Part I prescribed the structure of the government and Part II set out, basically, the rights of the individual. The second part failed of adoption in the plenary sessions of the Assembly. Although a majority apparently supported the substance of Part II, it fell victim to the Assembly’s rules of procedure, when 62 members abstained on the final vote of the entire text to demonstrate their disagreement with some particular provision. Part I of the draft, adopted nearly unanimously—after lively disagreements on some particularities—became in essence the present constitution of Latvia.

The document outlines the structure and basic processes of governance in clear, non-technical, and terse language; the 1922 text is just over 3000 words long. Its eighty-eight articles are arranged under seven sections: General Regulations, the Parliament, the President of the State, the Cabinet, Legislation, Courts, and State Control. The content of the document demonstrates the consensus prevailing at the Constituent Assembly on creating a parliamentary democracy, with a powerful legislative body (the Saeima), an executive (prime minister and cabinet) dependent on the confidence of the parliament, and a largely ceremonial head of state, the president. The rather brief sections on the courts and state control pay deference to the principle of judicial independence. Popular sovereignty is safeguarded by the election of the parliament (which "shall be elected by universal, equal, direct, and secret vote, on the basis of proportional representation") and by provisions for referendums and legislative initiatives. In March 1933, minor changes in the constitutional text, clarifying the procedure for referendums, were adoped for Articles 74 and 79.

The 1922 constitution was suspended—though not abolished—by Prime Minister Karlis Ulmanis in May, 1934, when he assumed emergency powers and disbanded the parliament. A revision of the constitution was promised, but not delivered during the six years of the Ulmanis regime. In June 1940, the constitution was loudly "revived" by the Soviet occupation authorities, to be used as a legal cover for installing a pro-Soviet puppet government and joining Latvia to the Soviet Union. In the process, ironically, the Soviet managers committed their own violation, by failing to submit the puppet parliament’s decision to end Latvia’s independent status to a popular referendum, as required by Article 77 of the constitution.


The 1990 – 1993 twilight zone

The 1922 constitution disappeared from view until the late 1980s. As various forces pulled Latvia back to national independence, however, the constitutional document once again became an object of interest. By early 1990, the leaders of the Popular Front of Latvia, the Latvian National Independence Movement, and other pro-independence groups were agreed that the 1922 constitution should form the legal foundation for Latvia—but it was far from clear when and how that should be achieved and under what relationship, if any, to the then-existing Soviet Union. It should be recalled that in the crucial 1988 to 1991 period all but the most extreme spokesmen—both among the national independence leaders and the Moscow centralists—stressed legality, conciliation, orderly procedures, and peaceful resolution of the mounting crisis of the Soviet order. Hence the hesitations and confusions of the Baltic leaders, even of the apparently audacious Lithuanians.

In the Latvian case, the Supreme Council of the Latvian Soviet Socialist Republic issued a ringing declaration on May 4, 1990, "On the Renewal of the Independence of the Republic of Latvia," which proclaimed, among other things, the renewal of the 1922 constitution "in the entire territory of Latvia." (Article 3 of the declaration). But it then went on to say that the Supreme Council had decided (Article 6) "To view as possible, during the period of transition, the application of the norms and other legislative acts of the Latvian SSR Constitution that are operative in the territory of Latvia..." A further article (Art. 7) promised the establishment of a commission to revise the 1922 constitution in line with "contemporary Latvia’s political, economic, and social situation." That commission, in fact, was never established. The structure of the government and the basic processes of governance continued to be—more or less—those of a Soviet republic.

On August 21, 1991, following the abortive Kremlin putsch, the Latvian Supreme Council declared that the "period of transition" had ended and Latvia had resumed completely sovereign statehood. Again, however, no action was taken to restore fully the 1922 constitution. The Supreme Council adopted a series of ad hoc laws—some of them labeled "constitutional laws"—but it was not until June 5 and 6, 1993, that a new parliament (now called Saeima, under its 1922 designation) was elected. Its first meeting on July 6, 1993, is now officially regarded as the date of the full restoration in force of the 1922 Satversme.

Four Formal Changes

Since 1993, the constitution has been amended four times. (It should be noted that "amendment" in the Latvian practice means the insertion of new text in an existing article or the addition of new, consecutively numbered articles to the original document. This differs from the American practice of leaving the original text intact and adding amendments, specifically so labeled, to it. The Latvian practice can be confusing: if the text of the constitution is published, as it often is, without annotations to indicate the changes, the reader has no way of knowing how current the text is.) In chronological order, the changes were adopted as follows.

On January 27, 1994, the parliament voted to change the voting age from 21 to 18 (Article 8 of the Satversme). Signed by President Ulmanis February 12, 1994. Entered into force February 27, 1994.

June 5, 1996. Parliament voted to establish a constitutional court for Latvia (change in Article 85). Signed by President Ulmanis June 12, 1996. Entered in force June 26, 1996.

December 4, 1997. Parliament voted to extend the term in office of the parliament from 3 years to 4 years (Article 10), and the president’s term likewise from 3 to 4 years (Art. 35). A new provision was added to Article 37, concerning eligibility for the presidency: "A citizen who has double citizenship may not be elected President of the State." Some minor changes, mostly of a technical nature, were made in Articles 11, 13, 30, 39, 45, 81, and 84. Signed by President Ulmanis December 17, 1997. Entered into force December 31, 1997.

October 15, 1998. Parliament voted to add a new section, Section 8, titled "Basic Human Rights" to the constitution, consisting of Articles 89 through 116. Also, a sentence was added to Article 4, reading "The language of the state in the Republic of Latvia is Latvian." Changes of a technical nature were made in Articles 77 and 82. Signed (in the temporary absence of President Ulmanis) by the President of Saeima A. Cepanis October 23, 1998. Entered into force November 6, 1998.


As the listing above indicates, the 1922 Constitution has undergone substantial revision in six short years. Fourteen of its original 88 articles have been revised; twenty eight new ones have been added. To be sure, most of the revisions have been in the nature of technical adjustments and corrections in language. But the magnitude of change in substantive provisions is also striking. The term of the parliament and the president has been extended by a year. A new organ of the state, a constitutional court, has been created, with authority to declare the action of any other branch of government null and void. A series of human and political rights has been enshrined in the basic law of the land, something that got away from the constitution-makers in 1922. Perhaps the least remarkable of the substantive changes was the first one adopted, i.e., the extention of voting rights to eighteen-year-olds. That norm is very much in line with a global trend, although in some countries it has been adopted after rather lively controversy.

This brings up a major puzzle about the Latvian constitutional changes: There has been virtually no politics in the process of adopting the changes. That is, there has been very little public controversy over the changes, either before or after their adoption, the political parties have not taken partisan positions on them, and the general public seems to be altogether unaware of them. The latter, it should be noted, is not due to some conspiracy of silence on the part of the politicians or journalists. Texts of proposed changes, parliamentary committee reports, plenary debates, and the like, have been duly noted in print, TV and radio. The intended recipients of all that information simply do not seem to care to have it. It is true that, compared to the coverage given to juicy scandals, the constitutional issues have received only perfunctory journalistic attention, but still—the information has been out there.

A significant measure of the lack of controversy over the constitutional changes is the voting pattern in the parliament. According to Article 76 of the Constitution, the parliament "may change the Constitution in sittings at which at least two-thirds of its [100] members shall be present. The changes shall be passed in three readings, by a majority of not less than two-thirds of the members present." (There is also a provision in the Constitution, Art. 78, for popular initiative to change the Constitution, but it has never been used.) In other words, the procedural barrier to constitutional amendment is not very high: at least 67 of the 100 Saeima members must be present when a vote is taken, and the amendment must receive a minimum of 46 votes to pass.

The striking thing about the four constitutional changes since 1994 is the absence of any serious opposition to them in the parliament, or even of doubts that might show up as abstentions from voting. On the twelve occasions the parliament has voted on constitutional changes (three readings on each of the four bills), the average (mean) vote in favor has been 90.12 percent of those present. The lowest positive vote took place on April 11, 1996, at the second reading of the bill creating a constitutional court, when "only" 54 of the 72 members present (i.e., 75 percent) voted in favor, three members opposed, and 15 abstained. At the final reading, the bill received 75 of the 76 votes cast. Another close call—if one may call it that—occurred in 1997 (establishing four-year terms for the parliament and the president), when only 68 members showed up to vote at each of the three readings. The positive vote, however, was nearly unanimous at all readings (68, 66, and 67, respectively). In short, the constitutional changes have received an exceptionally high degree of endorsement by the parliament.


Evolving constitutional principles?

Constitutional principles evolve and are changed not only by means of formal amendments, but in other ways as well—by judicial interpretation and by actions of the legislative and executive bodies of the state that come to be regarded, over time, as customary and constitutionally legitimate. The best known example of a political system which changes its constitutional principles in those ways is, of course, the United Kingdom. Since the British have no single constitutional document, they have nothing to be formally amended.

Judicial interpretation of constitutional principles is in its earliest stage in Latvia. Ordinary courts of law in Latvia, as in most European states, generally avoid constitutional issues, unlike their counterparts in the United States. The Constitutional Court of Latvia is barely into its fourth year of operation, but its decisions and dicta in its first dozen or so cases suggest that it intends to take seriously its role as arbiter, and perhaps generator, of constitutional law. This is a story to be followed closely in the future.

Likewise to be followed closely are the practices of the parliament, the cabinet of ministers, and the president. Some of their actions may be temporary expedients or personal modus operandi, but others may become institutionalized customs and, therefore, constitutional principles. It is too early, in less than ten years of independence, to tell which is which. Let me only suggest a few examples worth watching.

Item 1. Upon becoming cabinet ministers, some (but not all) of the members of the Saeima have temporarily given up their parliamentary seats. This practice is neither sanctioned nor forbidden by the Constitution. It has been explained simply as an efficiency measure, i.e., a busy cabinet member has no time for the legislative grind of the parliament. But it carries, of course, a constitutional implication—that of separation of powers, or at least a separation of legislative and executive roles. (That notion, incidentally, is totally alien to the "classic" British parliamentary-cabinet government.)

Item 2. In 1994, the parliament adopted an Order (or Rules) of Procedures (Saeimas Kartibas rullis), which has been modified slightly some eight or nine times since then. Understandably, the parliamentary Order is much more detailed and longer than the Constitution—some five times longer, in fact. The bulk of the Order’s content is concerned with the internal housekeeping chores of the Saeima, i.e., the structures and procedures of the parliament itself.

But a crucial part, Chapter III of the Order is titled "The election, approval, appointment, release, or dismissal of officials [and] the expression of confidence or lack of confidence." This short Chapter (10 articles, out of a total 200 articles in the Order) defines the procedural rules and conditions for the election of the President of the State, the State Controller, the presiding officers of the parliament, the Prosecutor General, the judges, and some other major officials of the government. It also contains the rules for approving and dismissing members of the executive branch, the Cabinet of Ministers. In other words, Chapter III regulates the procedural relationship between the parliament and all the other major organs of government. As such, it is really an extension of the Constitution itself, an intepretation of some of the most important articles of the Constitution, masquerading as rules of procedure.

That such rules can have serious political consequences was vividly demonstrated in the 1999 election of the President. Because of the way Articles 25 and 26 of the parliamentary Order are formulated, the early, publicly announced, candidates for the presidency could be dropped from contention, and new, previously unannounced candidates were nominated in the middle of the voting process. At issue here is not the qualifications of the early or late candidates, but at issue certainly is the constitutional wisdom of electing the head of the state through a process of political accident.

Item 3. It is often said that the President’s office in Latvia is a "ceremonial" one. That comes close to describing how the office was viewed by the first three presidents (Janis Cakste, Gustavs Zemgals and Alberts Kviesis) until 1936 (when Karlis Ulmanis appointed himself president). But it would not be entirely accurate even for that time. It has become even less accurate since 1993. During the presidency of Guntis Ulmanis (1993-1999), the activities of the president have expanded considerably beyond those of his predecessors in the 1920s. The trend seems to be continuing in the first year of Vaira Vike Freiberga’s presidency.

The expansion of presidential activism has occurred in two main directions: in the conduct of Latvia’s foreign policy and in the process of legislation. In legislative matters, the Constitution gives the President the right to propose legislation (Article 65) as well as a suspensive veto (Art. 71), i.e., the right to send a bill back to the parliament for a reconsideration. The parliament, however, may refuse to reconsider, in which case the President is obligated to proclaim it as law. Guntis Ulmanis has used both the presidential initiative and the suspensive veto far more vigorously than his predecessors in the 1920s, and Vike Freiberga has so far continued in the same manner.

It is in foreign affairs, however, that the role of the President has become most pronounced. For example, during his six years in office, Guntis Ulmanis made 79 trips abroad, some billed as ceremonial "state visits," but many more as "working visits" and attendances at international conferences and symposia. President Vike Freiberga’s travels suggest that she will match or exceed the Ulmanis record. Other examples of presidential activism besides foreign travel could be given, of course, such as President Ulmanis’ role in negotiating the withdrawal of the Russian armed forces from Latvia in 1994.

The issue I am raising is not whether the increased presidential activism in legislation and foreign affairs has had good, bad, or indifferent results. The point is that a gradual shift in the distribution of constitutional powers seems to be underway. Article 53 of the Constitution specifies that "The President of the State shall not bear political responsibility for his actions. All orders of the President shall be countersigned by the Prime Minister or the appropriate minister, who shall thereby assume full responsibility for such orders..." This frequently misunderstood Article seems to be an invitation to presidential irresponsibility. As constitutional lawyers know, however, it is simply a polite way of saying that, since the President is not responsible to an electorate, his orders become legally binding only when countersigned by a minister, who can be held accountable by an electorate. But the reality of presidential activism in the last seven years suggests that a different pattern is emerging. What if a president publicly makes an international commitment, which does not have the blessing of the Foreign Ministry or the Cabinet? The president is not "politically responsible," and the commitment may not be legally binding on Latvia. But the damage may already have been done. The sole remedy may be the removal of the President from office, which can only by done by the Parliament with no less than 67 of the 100 members voting for removal (Art. 51). This is an unlikely scenario, of course, but it does illustrate the potential constitutional problems of an activist presidency.

By way of summary: The 1922 Constitution is basically intact, but the formal amendments and some informal governmental practices since 1993 have introduced some considerable novelties to it. More changes are likely in the future, as, for example, the new Constitutional Court undertakes further constitutional interpretations and refinements, and as Latvia adjusts to a new international legal environment, including a potential membership in the European Union. What has been lacking until now is the political dimension of constitutional change—that is, a broad public awareness and an informed discourse. The absence of public interest has made it easy to adopt changes; the question is—has it made it too easy to change the basic law of the land?