Is there a constitutional contradiction to prohibit discrimination based on nationality while restricting voting right based on nationality?

Question

Many countries have constitutional provisions which prohibit discrimination based on certain characteristics (i.e. age, nationality, etc) while also - within the same constitution - having restrictions on voting right based on the very same characteristics.

For example, in the Estonian constitution, Section 12 states no one should be discriminated based on "nationality", "origin", or "other grounds". But later in Section 57, it restricts voting right to citizens of age 18 or older - this seems to constitute discrimination based on "nationality" and age (covered by the catch-all "other grounds").

Does this mean these constitutions are contradicting themselves? How do legal scholars reconcile these seemingly paradoxical provisions within their respective constitutions?

Answer 1

"Nationality" is not the ethnic origin, it is largely the same as the citizenship (from the dictionary, someone who officially belongs to a particular country, a citizen of a particular country). Discrimination by ethnic origin is not allowed. Discrimination by citizenship is allowed and obvious: citizens can enter the home country without visa, vote, work with much less restrictions and the like. Discrimination of foreign citizens against each other, based on they citizenship, is also widespread starting from the queue in the airport upon arrival ("EU nationals go left, all other nationals go right").

Ethnic origin and citizenship is not the same, and the national is a citizen (the definition sometimes extends to people who live for many generations in the country without citizenship). A sentient green spider originating from Andromeda galaxy would be an Estonian national if given a citizenship for some reason. All ethnic Russians with Estonian passport are Estonian nationals. They are not Russian nationals (dual citizenship in Estonia is not allowed).

P.S. There is an English translation of the constitution here. Who does not know Estonian anyway, could probably rather read the translation.

Answer 2

Someone who actually can speak Estonian should probably answer this, but on a quick look there is indeed a fair bit of problem with the most direct translation and how other passages by Estonian authorities use the term "rahvus".

The Estonian constitution in original says:

Kõik on seaduse ees võrdsed. Kedagi ei tohi diskrimineerida rahvuse, rassi, nahavärvuse, soo, keele, päritolu, usutunnistuse, poliitiliste või muude veendumuste, samuti varalise ja sotsiaalse seisundi või muude asjaolude tõttu.

But in a quick google for that "rahvus" term, I also found (seemingly on a page of the "Office of the Gender Equality and Equal Treatment Commissioner" of Estonia):

Inimese rahvus on tunnus, mida ei ole võimalik muuta. Inimesed sünnivad ühte või teise rahvusesse. Seda, mis rahvusesse inimene sünnib, ei saa ta ise valida.

Google translates the latter as:

A person's nationality is a characteristic that cannot be changed. People are born into one nationality or another. What nationality a person is born into, he cannot choose himself.

The first sentence of that clearly makes no sense in English with nationality = citizenship.

Wiktionary says for rahvus

1. ethnicity, nationality
2. nation

The Robert Schuman Centre also has this to say about the (terminology) matter:

In Estonia the term ‘nationality’ (rahvus) refers to ethnic origin only. There is no formal definition of this term in Estonian laws. In practice for most purposes ‘nationality’ of a person is based on his or her self-determination.

The permanent legal link between the state and an individual is described by the term ‘citizenship’ (kodakondsus). Most of relevant issues are covered by the Citizenship Act.

Furthermore, in Estonia the term ‘non-Estonians’ will refer to both citizens and non-citizens of minority ethnic origin. In general, in Estonia the terms ‘an Estonian’, ‘a Russian’ etc are the indication of a person’s ethnic origin.

Another paper (by a Finnish author) says:

in Estonian statistics, “ethnicity/nationality” (rahvus) refers to self-reported ethnic belonging and is independent of both citizenship and mother tongue.

A 3rd paper makes similar (albeit more critical remarks)

the Estonian word for nationality (rahvus) is synonymous with ethnicity, referring to membership in a community of descent, and cultural diversity is predominantly conceived of in terms of ethnicity and national minorities. For example, the opening text of the “Cultural diversity” website operated by the Ministry of Culture states: “There are representatives of around 194 nationalities living in Estonia. Out of the total population, 69% are Estonians by nationality, 25% are Russians, 2% Ukrainians, 1% Belarusians, 0.8% Finns and many other smaller groups.” In the Soviet era, one’s personal nationality/ethnicity was listed in one’s passport. The sense or belief that one was born into a particular ethnic/national category persists, even if mixed family backgrounds or quotidian experiences in managing multiple belongings challenge this essentialist approach.

Answer 3

Discrimination may mean many things

Apart from the ambiguous use of term nationality, there is also the question of what kind of discrimination one is talking about.

Obviously, foreign nationals do not have some rights that citizens have - notably in terms of voting rights, access to the state territory, employment at certain jobs (e.g., jobs requiring security clearance, although many states also require giving preference to hiring citizens for all jobs.) However, this does not mean that any kind of discrimination against a foreign national is allowed.

As an example, one could cite recent backlash by banks against Russians legally present in France in terms of blocking salaries, refusing bank transfers, and loans to Russians complying with the French law on the sole basis that they are Russian nationals - this has resulted in lawsuits for discrimination.

Naturalized citizens, dual citizens, permanent residents

There are many cases where a foreign national has acquired the rights of citizenship via naturalization. When doing this they might or might not have given up their other nationality. They thus may be discriminated because they were born in a different place or because they still have another nationality (even if legally). In some cases, this is still allowed - e.g., a foreign-born person cannot be elected as a US president. In France, there are also proposals to revoke the French nationality to persons who have committed serious crimes or engaged in terrorist activities (provided that they have another nationality.)

A separate case are permanent residents (aka green card holders in the US) - people who have legal right to reside in the country on a long-term basis, but who chose not to apply for the citizenship for various reasons (because it involves losing other nationality, because they are not interested in being involved in the political process, etc.)

Apartheid

An obligatory mentioning here is the Apartheid in the South Africa, which involved division of the country in Bantustans - autonomous regions or independent states created along the racial lines, which was a way of legalizing the racial discrimination:

The Pretoria government established ten Bantustans in South Africa, and ten in neighbouring South West Africa (then under South African administration), for the purpose of concentrating the members of designated ethnic groups, thus making each of those territories ethnically homogeneous as the basis for creating autonomous nation states for South Africa's different black ethnic groups. Under the Bantu Homelands Citizenship Act of 1970, the Government stripped black South Africans of their South African citizenship, depriving them of their few remaining political and civil rights in South Africa, and declared them to be citizens of these homelands.

Answer 4

I'll use the provided translation, which should be good enough for the purpose of this argument.

Here's article 142 with emphasis added:

Article 142: If the Chancellor of Justice finds that legislation passed by the legislative or executive powers or by a local government is in conflict with the Constitution or a law, he or she shall propose to the body which passed the legislation to bring the legislation into conformity with the Constitution or the law within twenty days.

Where I'm getting at is this language suggests is that "the Constitution" isn't "the law", they are technically different. It could be a mistranslation or misinterpretation. However, I feel confident enough because that's a fairly common idea that constitutions and laws are different.

Examples of how laws are different from the Constitution include that laws can be initiated by "a member of the Riigikogu" (art 103) whereas constitutional amendements require "not less than one-fifth of the membership of the Riigikogu" or "the President of the Republic" (art 161). The Constitution cannot be amended during a "state of war", whereas no such restriction exist on laws.

So here's Article 12 again with emphasis added:

Article 12: Everyone is equal before the law. No one shall be discriminated against on the basis of nationality, race, color, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds.

Note that it says "before the law", not "before the Constitution".

If we accept that the law and the Constitution are indeed different, and if we accept that article 12 puts a restriction on the law rather than the Constitution, then there is no contradiction.

If we don't accept that, then the Constitution taken as a whole still says "no discrimination, and also there is this one very specific and narrow case where discrimination is mandatory". You can view it as a contradiction, but it's better viewed as an exception.

What the Constitution says is by definition constitutional, so this one exception is constitutional. You can call it contradictory if you want, but at the end of the day it is what it is.

You could conceivably challenge the Constitution, and the process should be outlined in the Constitution or a document referenced in the Constitution. As far as I can tell, it involves bringing a case to the Riigikohus, the Supreme Court of Estonia, and ultimately that's where interpretation of the Constitution rests.

If no one has successfully challenged it and it's in the Constitution, chances are nobody objects to the common interpretation that article 57 is a slight and justified exception to article 12.

Answer 5

There is usually an exemption to these constitutional bans on discrimination. Under the lex specialis rule, any form of discrimination that is specifically prescribed by law is not allowed, and often even mandatory. Voting booths must discriminate on age.

This is often implicit, both in the constitution and the law that establishes the exception. This unclear wording is often justified by legal precedent, a lot of this discrimination predates the various constitutions and many lawmakers did not feel obliged to point out the obvious limits. E.g. the Dutch constitution has an explicit exemption for the Freedom of Speech, but an implicit exemption for discrimination.