duty of Loyalty to the State or the ‘Polish Section’ in the 1937 estonian constitution

There is a common comparison between the constitutions of the authoritarian regimes of Poland (1935) and Estonia (1937). The ideological model of the 1937 Estonian Constitution, especially in the section on loyalty to the state, was the 1935 Polish Constitution; for this reason, this section was also called the ‘Polish Section’. Compared to the first, 1920 Estonian Constitution, the 1937 Constitution was much more restrictive of basic rights, in particular through its general orientation and attitude. It was precisely in this that the so-called “loyalty to the state” section (§ 8) played a special role, affecting the whole chapter by its very nature, because it could, in its wording – and according to the example of Poland – constitute a general border clause on fundamental rights and freedoms. This article analyses specifically the ‘loyalty to the state’ section but first a short overview about historical background will be given. Secondly, the drafting of the section 8 of the Estonian Constitutions in the committees’ will be described and analysed, and thirdly, the discussions in the National Assembly will be summarized.


Introduction and historical background
In Estonia's legal and historical discourse, the similarities and differences of the Constitution which was adopted in Poland on 23 April 1935 and the Constitution proclaimed in Estonia on 17 August 1937 by K. Päts (entry into force on 1 january 1938), the State Elder who remained in power following an authoritarian coup d'état, have already been highlighted or addressed during the first period of independent statehood. 1 today, the fact that through the then State Elder Konstantin Päts, Estonia's 1937 Constitution was influenced by the 1935 constitution of authoritarian Poland, has been dealt with in particular by Rein Marandi. 2 However, Marandi wrote about the political system and the President's institution. 3 I have examined recently the relationship between fundamental rights and obligations, including the aspect of the duty of loyalty to the state. 4 Although the Polish tradition of fundamental rights extends considerably further in history, both Estonia and Poland (at least most of the territory) formed part of the Russian Empire before independence in 1918. A certain parallel, particularly towards authoritarianism, can also be seen in the further national development of Poland and Estonia.
In Estonia, the beginning of the basic rights tradition can be seen at the earliest in the 1889 judicial reform. 5 As part of the Russian Empire, Estonia also became subject to the manifesto of 17 october 1905 6 -on the basis of which unprecedented freedom of expression prevailed in the Russian Empire 7and, on 23 April 1906, to the part of fundamental rights incorporated into the so-called Fundamental Laws of the Russian Empire, that is to say, the Constitution. 8 the adoption of both the 1905 Manifesto and the 1906 Constitution were welcomed by the Estonian general public -it was now possible to present a claim to the court when the tsarist official closed a newspaper or forbade an intended assembly, relying on the violation of basic rights. jaan tõnisson, the editor of the newspaper "Postimees" and an active politician in the independent Republic of Estonia, who was twice elected as the State Elder, pointed out: "the Constitution has brought along political rights at the request of the people and the land. the concern and duty of the citizens of the state must now be to defend and uphold the new regime of state and political rights. only then will the new regime of state and political freedom stand up, when a strong civic-mindedness is ready to fight for it, to carry it with all its will and power". 9 Despite the fact that freedom of expression and assembly were meant to be declaratory in the Constitution, people started to use them actively and demand their rights in Estonia.
the Fundamental Laws of 1906 were precisely the constitutional act that established basic rights in both Estonia and Poland. In Poland, the basic rights and privileges granted to the Polish nobility against the royal power in the 14 th century are regarded as the beginning of the establishing the basic rights. Also the Constitution of 3 May 1791 is considered to be the first democratically drafted and  1921. 13 this article analyses the section on loyalty to the state, which is particularly specific to Estonia's next Constitution of 1937, whose Polish influence was already referred to in the deliberations of the Estonian National Assembly (Rahvuskogu) and has therefore started to be referred to as the "Polish Section" in Estonian historical and legal historical literature. 14  the increase of basic obligations are more broadly characteristic of Estonia's 1937 Constitution, which is already reflected in the changed title of the chapter on basic rights. 16 Compared to the 1920 Constitution, the 1937 Constitution was much more restrictive of basic rights, in particular through its general orientation and attitude. It was precisely in this that the so-called "loyalty to the state" section ( § 8) played a special role, affecting the whole chapter by its very nature, because it could, in its wording -and according to the example of Poland -constitute a general border clause on fundamental freedoms.

Reaching the Wording of the Loyalty to the State Section in the committees
In Estonia, the State Elder's (Päts) interest in the Polish Constitution was no secret, and Poland's influence on the draft constitution and its various solutions was repeatedly talked about in the National Assembly. the first person who wrote about it (but not publicly) was Eduard Laaman, the Editor-in-Chief of the Vaba Maa [Free Country] newspaper, later a member of the National Assembly convened for drafting the Constitution and a lawyer close to Konstantin Päts, very soon after the entry into force of the Polish Constitution, on 1 May 1935 in his diary: "K. Päts before travelling to Poland: Wants to study the Polish constitution on holiday, establish a political council in the autumn and embark on state reform". 17 Laaman was invited by Päts to participate in the drafting of the Constitution on 30 November 1935, and already on 16 january it was taking a more concrete form. 18 In order to draw up the draft Constitution, in january 1936, Päts set up an informal committee composed of three lawyers: johannes Klesment, Counsellor of the Ministry of justice; Eduard Laaman, Editor-in-Chief of the Vaba Maa newspaper; and Hugo Kukke, Editor-in-Chief of the Uus Eesti [New Estonia] newspaper. the committee was guided by the requirement of Päts that priority should be given to the development of a new constitution and that it should be based on a new constitution in Poland.  [Laaman's Diary 1922-1940, " Akadeemia" 2003, vol 12, p. 2777. 18 Ibidem, "Akadeemia" 2004 the loyalty to the state clause which was the basis of the draft Constitution of Estonia was laid down in Article 6 of the Polish Constitution as follows: "It is the duty of the citizens to be loyal to the State and faithfully to discharge obligations imposed upon them by it". 20 After the informal drafts and discussions of the committee, in December 1936, K. Päts, State Elder, appointed the members of the Committee on the Development of the official Draft Constitution, also known as the Klesment Committee, after its President, johannes Klesment. 21 According to Klesment, "It was the Committee's task (...) to develop the draft Constitution in cooperation with the State Elder. there are currently no direct instructions given by the State Elder". 22 By mid-February 1937, the draft was essentially completed and after it was presented to the Government, the draft was submitted on 23 February to the Estonian National Assembly.
At the meeting of the Committee on 30 December 1936, the wording was briefly debated, and Mr Kukke's proposal was to formulate "in the imperative mood": "[citizens] are loyal to the state and will fulfil [the duties]". j. Klesment pointed out that "this is, then, like Hitler's command: "Die deutsche Frau raucht nicht" [A German lady does not smoke]. 23 At the meeting of the Committee on 9 january 1937, Klesment proposed to put it more softly: " § 9. It is the ultimate duty of Estonian citizens to be loyal to the state and to fulfil all the obligations imposed on them by the state. Estonian citizens exercise their freedoms and rights in accordance with the common good of the state and the people". 24 Klesment was of the opinion that this was a general declarative paragraph. However, no major discussion can be seen in the minutes. During the revision on the following day, the section about loyalty to the state had become § 8; the wording remained essentially the same. 25 Mr Laaman commented on this in his diary on 26 january, as follows: "I propose that the clause on the common good of § 8 should be omitted altogether from the [chapter of the] basic rights of a citizen, or that it be defined more concretely, because otherwise it will render the Constitution authoritarian. Kukke and Klesment were excited. Kukke says that without the imposition of duties, there will be disorder, Klesment says that if this § [section] is to be deleted, then the whole Constitution must be redone. Also Palvadre thinks there is no staying with the liberalist constitution. Klesment notes that they have not thought of an authoritarian order, but agrees with me that this recalls the Nazi Gemeinnutz vor Eigen nutz (common good before one's own gain)." 26 Mr Laaman also expressed his views before the Committee, which led to a rewording of the draft -still because of "Mr Laaman's objections" by Klesment: "It is the ultimate duty of Estonian citizens to be loyal to their state and to fulfil all obligations imposed on them by law in the interest of the state and society, and to contribute to the benefit of the state and of the people". 27 this wording also suggests some of Poland's influence in a softened way, namely that the exercise of rights must be compatible with the common good of the state. However, there is nothing to prevent the use of means to protect the 'common good of the state and of the people' which, in essence, makes the exercise of basic rights impossible under the pretext of anti-statism.
As a result of the proceedings of the Klesment Committee the section was formulated as of 8 February 1937 as follows: " § 9: It is the ultimate duty of Estonian citizens to be loyal to the state and to conduct their entire activities in accordance with the common good of the state and the people". 28

Reaching the final wording of the Loyalty to the State Section in the committees and the National Assembly
the Estonian National Assembly was a bicameral assembly which was convened after a referendum about drafting the new constitution was held. the First Chamber had 80 members and was elected -opposition parties were not allowed to participate. the Second Chamber contained 40 representatives of corporate chambers. the Estonian National Assembly assembled between 18 February 1937 and 17 August 1937.
on 23 February 1937, K. Päts submitted to the National Assembly a draft already developed, which in Estonian literature is referred to as the State Elder's draft. § 8 of this draft provided that "It is the duty of Estonian citizens to be loyal to the state, to defend the state and to contribute to the development of the state. Every citizen must bear the obligations imposed on him or her by law. Any act detrimental to the state and its development shall be prevented by the state by means of legal remedies". 29 journalist Eduard Salurand found, commenting on this Section, that it "stresses (...) only the obligation of citizens against the state and is therefore one-sided and should be complemented by the sentence stating the obligations of the state". 30 He does not consider necessary the existence of the final phrases of Section 8 of the draft on the fulfilment of obligations imposed by law and on the prevention of harmful activities. However, Salurand considers that even the assertion that "the so-called 'general interest clause' is a novelty of the draft Constitution" is incorrect. the principle of the inviolability of private property also includes an obligation against society, as well as in the social protection section. 31 According to E. Laaman, in the opinion of the National Assembly, that section was similar to "section 10 of the new Polish Constitution, which gives normative shape to the declaration in section 5(3) of the same Constitution that the limits of citizens' freedoms are determined by the general interest, thus making the governmental power authoritarian". 32 Compared to the previous and more declaratory version proposed by Laaman, this wording is aimed directly at restricting the exercise of basic rights or preventing harmful conduct. Since the prevention of harmful acts is in the same section with the duty to bear the obligations and duty of loyalty to the state, non-fulfilment of those obligations can be easily interpreted as an act which is detrimental to the state. By contrast, the Minister of the Interior and the former Chairman of the Estonian-Polish Society, Kaarel Eenpalu, in the I Chamber of the General Committee of the National Assembly, considered that: "this is the only section in this chapter that concerns citizens' duties in a declarative manner, all others concern obligations in a more specific way. (...) I do not think that many disputes should arise about the fact that the section about the declaration of obligations must remain in the Constitution. (...) the attitude towards the Polish Constitution has been somewhat negative, I would point out, precisely towards the Polish Constitution, and people have wanted to keep away from it. this project therefore does not follow the Polish Constitution. the Polish Constitution, both in its design and in its regulatory part, is one of the most exemplary and beautiful in terms of literacy and content. Apparently, this beautiful part has been developed by a thorough professor, and as a result there is such a valuable creation". 33 the fact that several sections followed the lead of Poland was contemporarily widely known; in the National Assembly, its member oskar Lõvi stressed the inappropriateness of the Polish Constitution for Estonian circumstances 34 , and some, such as Ago Anderkopp, the General Rapporteur for the draft Constitution in the Second Chamber of the National Assembly, agreed in principle with him on the inappropriateness of the example of the Polish Constitution. 35 As regards § 8, the similarity with Poland was highlighted in the National Assembly by Eduard Riisna (Riisman), Chairman of the Workers Union (tööühingute Liit), on 9 june 1937: "this section is also included in the constitution of some countries, especially in the Polish Constitution. But my guess is we can still keep it out of our Constitution. Not that I am essentially arguing against it, not at all, but that it is a lowering of our own value if, in the Constitution, we have to underline it [loyalty to the state]. the following paragraphs say the same as the first paragraph and the transition to the other paragraphs is clear that without any impediment, we can delete the first paragraph and liquidate this Polish section". 36 Professor of International Law and Representative of the University of tartu to the National Assembly, Ants Piip, noted when speaking at the National Assembly that "if we mention the obligations of citizens under Section 8 of the Constitution, this is still a general declaration without any content" 37 . Eduard Laaman also criticised Section 8 again in the National Assembly, suggesting the existence of a "general interest clause" could still be "reconsidered". 38 He meant the third sentence of the State Elder's draft: "Any act detrimental to the state and its development is hindered by the state power by means of legal remedies." He noted that "the general interest, the common good of the state and the people (...) is one of the high moral norms", but not legal, since the legal content of the norm includes both obligation and "demand". According to Laaman, the problematic question is who determines the general interest, who is justified to demand for the implementation of the general interest, and what the general interest is. It should be done by the government or a majority in parliament. But -"this clause stands in authoritarian constitutions, and there it has a definite point. the authoritarian principle itself is expressed there. An authoritarian government is at every moment empowered to explain what the general interest is". 39 In Laaman's opinion, in the case of a democratic regime, this is not possible.
the so-called Loyalty to the State section was not entirely excluded from the 1937 Constitution, but in conclusion, it was worded as follows: " § 8. the supreme duty of every citizen is to be loyal to the Estonian State and to its constitutional order. Legal obligations and duties devolve upon the citizen in consequence of his membership in the Commonwealth. this membership also gives rise to the citizen's legal rights and freedoms". 40 All in all, the wording of the Loyalty to the State Section became more precise, also the vague clause "for the common good of the state and the people" was omitted. While the Klesment Committee's draft also highlighted citizens' rights as opposed to their obligations, the additions to the State Elder's draft resulted in an obligation to protect and contribute to the development of the state, as well as the fulfilment of legal obligations. And also the possibility for the state to use legal remedies in the event of damage to the state and its development. As such, it would have given the courts and the executive power a free hand to interpret the damage to the state and its development broadly. It is this part of the provision that changed most during the discussions and once again the rights and obligations arising from the national society were added for the sake of balance. Although it is also possible to interpret loyalty to the state and to the constitutional order as restricting basic rights, the wording of Section 8, which was finally included in the Constitution, gave far fewer possibilities for abuse than the earlier versions, which used the concept of the common good of the state and of the people. However, there remains an emphasis on the obligations, which have clearly been given an advantage over rights. However, how Section 8 as a whole was applied in practice, has not yet been examined.
conclusion the ideological example for the 1937 Constitution of Estonia was, at the request of the State Elder Konstantin Päts, the 1935 Polish Constitution. this also had to be the case specifically for the Loyalty to the State Section. In the Committees formed by Päts, as well as in the National Assembly, the inclusion or deletion and the wording of this Section were thoroughly debated. Both the Committees and the National Assembly were largely seeking to avoid the arbitrariness of the state, and the authoritarian governance which could be exercised on the basis of this Section. According to the express wish of the State Elder to follow the model of the Polish Constitution and the authoritarian governing style of Päts himself, these discussions can, in turn, be regarded in a certain way as an indicator of free discussion and decision making. Although the discussions over the draft of the Constitution do not show any direct pressure by Päts, during them the general guidelines and wishes given by Päts, e.g. when amending the chapter on basic rights, were followed. At the same time, it can be seen that the Committees and the National Assembly had broad powers to (re-)formulate the Loyalty to the State Section and that the initial version changed significantly during the discussions.
When comparing the final wording of the Loyalty to the State Section, i.e. Section 8, with Section 6 of the Polish Constitution, both parts have remained: loyalty to the state and the obligations. However, the tonality and context of the Estonian Section are more liberal. While in the Polish Constitution one must take into account the "common good" clause and the fact that no action must be contrary to the objectives laid down by the state, the relevant provision of Estonia emphasizes not only the state but also the constitutional order and rights. In addition, the obligations imposed by the state in the Estonian Constitution are not to be performed "diligently", but they result from "belonging to the national society" in the same way as rights. However, the duty of their diligent fulfilment -as in the Polish Constitution -was left out.
on the basis of the Polish example, the Committees for drafting the constitution and the National Assembly had broad powers to (re-)formulate the section and the initial version changed significantly during the discussions. The main aim of changes was to avoid as much as possible the arbitrariness of the state and authoritarian governance. The members of the National Assembly were mostly loyal to Päts, as the opposition had boycotted the elections and only four opponents were elected. Although there does not appear to be any direct pressure by Päts from the discussions, in general, the guidelines and wishes of Päts were followed. In the final wording of the Loyalty to the State Section (" § 8. The supreme duty of every citizen is to be loyal to the Estonian State and to its constitutional order. Legal obligations and duties devolve upon the citizen in consequence of his membership in the Commonwealth. This membership also gives rise to the citizen's legal rights and freedoms".) both parts of Polish Constitution Article 6 have remained: loyalty to the state and obligations. However, the tonality and context of the Estonian Section are more liberal and the rule of law oriented, as the relevant Estonian provision emphasizes not only the state but also constitutional order and rights.