Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
DECISION
On the compliance of Article 25 of Chapter 5 of
Part II of the Statute of the Seimas of the
Republic of Lithuania with the Constitution of the
Republic of Lithuania
26 November 1993, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
the petitioner - Andrius Kubilius, representative of the
group of the members of the Seimas,
the party concerned - Juozas Bernatonis, the Seimas
representative, deputy Chairman of the Seimas,
pursuant to part 1 of Article 102 of the Constitution of
the Republic of Lithuania and part 1 of Article 1 of Law on the
Constitutional Court, in its public hearing of 25 November 1993
conducted the investigation of Case No 10, subsequent to the
petition submitted to the Court by a group of the Seimas of the
Republic of Lithuania members to investigate the conformity of
Article 25 of Chapter 5 of Part II of the Statute of the Seimas
of the Republic of Lithuania with part 4 of Article 59 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
established:
The Seimas of the Republic of Lithuania on 20 May 1993
adopted Part II of the statute of the Seimas of the Republic of
Lithuania called the Structure of the Seimas (Parliamentary
Record No 17, 28 May 1993, Act No 1-158). It is set forth in
the first and the second parts of Article 25 of Chapter 5
"Parliamentary Groups" that: "Political parties and
organizations and their coalitions whose members have been
elected to the Seimas from the same list of candidates, and the
members of the same parties and organizations who have been
elected to the Seimas in one - candidate electoral areas, shall
form one factions. Factions may not be established on the basis
of individual, professional or internal interests. A member of
the Seimas may be a member of only one faction.
Political parties and political organizations represented
by the Seimas members who were elected not from the list of
candidates may from a faction of the Seimas members who have
been elected in one - candidate electoral areas, provided such
a faction includes at least one - fifteenth of all the members
of the Seimas".
It is specified in the second part of Article 26 of the
same chapter that: "A faction must be registered within one
week provided it has submitted the decision of a party or
political organization to establish a faction or a political
declaration signed by all members of such a faction which,
besides the statute of the political group, must include the
commitment to act in compliance with the Constitution and laws
of the Republic of Lithuania, seek the strengthening of
Lithuania's independence, and defend its territorial
integrity".
The petitioner - a group of the Seimas members - request
the Constitutional Court to recognize that Article 25 of
Chapter 5 of Part II of the Statute contradicts the fourth part
of Article 59 of the Constitution of the Republic of Lithuania
which establishes that, in office, Seimas members shall act in
accordance with the Constitution of the Republic of Lithuania,
the interests of the state, as well as their own consciences,
and may not be restricted by any mandates.
The petitioner bases his request on the fact that the
provisions set forth in Articles 25 and 26 of the Statute of
the Seimas that establish the procedure order of the formation
of factions, and commission all members of such a faction to
sign a political declaration in which, along with other
commitments, would be a commitment to act in compliance with
the statute of the political group, make Seimas members to
comply with specific mandates. At the same time, Article 34 of
the Law of the Republic of Lithuania on Elections to the Seimas
provided for the possibility to several political parties or
public political movements to join lists of candidates
nominated by them but not their programmes.
The petitioner's representative explained in the court
hearing that the Constitution of the Republic of Lithuania
shall not recognize the imperative principle of the mandate of
a Seimas member and establishes the democratic principle - i.e.
unrestricted mandate of a Seimas member, which means, that a
member of the Seimas is representative of the People and not of
a party, ethnic community or social layer. The petitioner's
representative has also maintained that all Seimas members are
equal, irrespectively of the fact whether they are elected in
one-candidate or multi-candidate electoral area. The procedure
of forming factions, established in Article 25 of the Statute
of the Seimas, gives the right of forming factions to parties
or political organizations, but not to members of the Seimas,
as well as provides for various possibilities for Seimas
members, who have been elected in multi - candidate or one -
candidate electoral areas, to join into a faction. In the
opinion of the petitioner's representative the basis for
political grouping in the Seimas must be equal. The
petitioner's representative has also explained that the
requirement of Article 26 for the Seimas members to sign a
political declaration as well as the right of the Seimas Board
to register a political group or not, which is established in
the same Article, is in direct connection with Article 25 These
provisions also violate the freedom of Seimas members to join
into factions and to exercise the rights enumerated in the
Statute of the Seimas.
During the preliminary investigation and in the court
hearing, the representative of the party concerned explained
that, in his opinion, Articles 25 and 26 of Chapter of Part II
of the Statute of the Seimas did not contradict the
Constitution of the Republic of Lithuania and submitted the
following arguments:
1. Upon the enforcement of the Constitution of the
Republic of Lithuania, which does not provide for imperative
principle of the mandate of a Seimas member, and taking into
consideration a new mixed system of elections, the procedure of
forming factions which had been established in the Statute of
the Supreme Council, was amended in the adopted Statute of the
Seimas. The norms of Articles 25 and 26 of Part II of the
Statute of the Seimas establish the nature of a faction as a
structural unit of the Seimas, procedure of its formation,
however, it does not regulate the right of the Seimas members
to participate in factions.
2. The petitioner in the request to the Constitutional
Court interprets the provisions of Articles 25 and 26 of the
Statute of the Seimas leaving out of account the fact that the
Statute of the Seimas is an integral act of law. The submitted
interpretation of said articles contradicts other norms of the
Statute of the Seimas. The rights and freedoms of a Seimas
member are defined in the first part of the Statute of the
Seimas which determines the status of the Seimas member. A
constitutional norm specifying that "in office, Seimas members
shall act in accordance with the Constitution of the Republic
of Lithuania, the interests of the Sate, as well as their own
consciences, and may not be restricted by any mandates" is
established in the second part of Article 3 of the Statute of
the Seimas. This part of the Statute of the Seimas is already
adopted and valid, thus, it is obvious that Seimas members join
into factions in the procedure prescribed by Articles 25 and 26
of the Statute of the Seimas at their own free will and without
being restricted by any mandates.
3. A provision specifying that "political parties and
organizations shall form factions of Seimas members for
expressing their respective political views and for
implementing their political programmes and goals" is set forth
in the first part of Article 92 of the Statute of the Seimas.
This norm is an evident reflection of the political nature and
subject (political party or political organization) of
factions, initiating their formation. The Statute of the Seimas
does not provide for the necessity for a Seimas member to be in
a faction. In accordance with the first part of Article 25 of
Statute of the Seimas, Seimas members may form factions, but
this is not an obligatory requirement. Seimas members may
choose factions at their free will, without being restricted by
any mandates which is confirmed by the application of the norms
of the Statute of the Seimas in practice.
4. Article 76 of the Constitution of the Republic of
Lithuania gives the Seimas the right to determine the structure
of the Seimas, freely choose and adopt any procedure of forming
factions in compliance with the Constitution. The Seimas, by
adopting one way of forming factions from all possible ones,
has exercised its constitutional right.
5. In the request of a group of the Seimas members, to the
Constitutional Court, an argument that, in accordance with
Article 26 of the Statute of the Seimas, all members of a
faction must sign a political declaration, which, besides other
commitment, must include the commitment to act in compliance
with the statute of the faction, does not fit to reality.
Article 26 of the Statute of the Seimas does not hold such a
commitment. The provision concerning political declaration was
transferred from the Statute of the Supreme Council and
appended by the requirement to submit the decision of a party
or political organization in order to establish a faction. As,
in accordance with Article 92 of the Statute of the Seimas,
political parties and organizations shall form factions of the
Seimas for expressing their respective political views and for
implementing their political programmes and goals, a political
declaration should reflect if political views, programmes and
goals are in compliance with the Constitution of the Republic
of Lithuania. Such a requirement may not be interpreted as the
restriction of the rights of Seimas members.
The Constitutional Court
holds that:
It is established in the fourth part of Article 59 of the
Constitution that, in office, Seimas members shall act in
accordance with the Constitution of the Republic of Lithuania,
the interests of the State, as well as their own consciences,
and may not be restricted by any mandates. Thus, the
Constitution establishes an unrestricted mandate of a Seimas
member and does not recognize any imperative mandate. The
essence of an unrestricted mandate lies in the freedom of a
People's representative to implement the rights and duties
vested in him without restricting this freedom by any mandates,
political requirements of parties and organizations that
nominated them, and without recognizing the right to revoke a
Seimas member.
Every member of parliament represents all the People, all
members of parliament are representatives of the people. While
differentiating the rights of Seimas members in such a way, in
fact, unequal possibilities for their participation in Seimas
activities are determined and substantial principle of
representative institution - equality of members of parliament
- is violated, therefore, there are no possibilities to
represent the whole People in the Seimas and to express the
People's interests.
The principles of equality of members of parliament as
well as unrestricted mandate must also be kept in the formation
of internal structures of the Parliament. As a rule, structures
of two types are formed in parliaments: committees (or
commissions) and factions (or parliamentary groups). The former
structures are formed on the basis of specialization principle
of parliamentary activities, which ensures due professional
preparation of issues and parliamentary hearing on these
issues. Structures of the second group help to realize
political orientations and goals of members of parliament (not
necessarily on the basis of their party - membership) as well
as to ensure organized relation of parliamentary groups with
political parties and organizations represented in the
parliament.
In determining internal structure of the parliament
universal principles of its formation must be chosen, which
would ensure equal and real possibilities for all members of
parliament to participate in the formed structures. Otherwise,
not all members of the Seimas would have the possibility to
exercise supplementary rights, set forth for structures, and
this would mean the violation of the principle of equality of
all members of parliament. Factions are sub-units of the
Structure of the Seimas, therefore, the establishment of the
procedure of their formation, their rights and duties is the
prerogative of the parliament, determined by its self
dependence within the limits of the Constitution. Though
factions are mostly formed on the basis of party - membership,
their most essential destination is to ensure working -
capacity of the parliament as well as its normal functioning.
Therefore , the statement of the first part of Article 25 of
Chapter 5 of Part II of the Statute of the Seimas "political
parties and organizations and their coalitions ... shall form
.... faction" must be interpreted as groundless (wordings with
similar content can be found in the second part of this article
as well as in Articles 9, 92, 26, of the Statute of the Seimas.
Parliamentary factions are formed by members of parliament on
the basis of the procedure of their formation prescribed by the
parliament (most frequently in accordance with views and
political goals), but not by political parties, political
organizations or their coalitions as prescribed by the first
part of Article 25 of the Statute of the Seimas. Though
factions are in close relation with political parties, it does
not mean, however, that a faction is a political party in the
Seimas, and, in turn, that every party having its
representatives in the Seimas is a faction at the same time.
Such a conclusion must be drawn in accordance with the
principle of unrestricted mandate established in the
Constitution.
Rights and duties of Seimas members may not be associated
with laws on election. Firstly, these are different subject
matters of legal regulation (in the first case - elections, in
the second one - activities of the parliament) - secondly, the
subject matter of regulation calls forth different criteria, on
the basis of which rights and duties of participants of legal
relations are determined.
In determining the procedure of the formation of factions,
the total number of deputies, the nature of rights and duties
of factions established in the Statute, the necessity to
guarantee equal possibilities for all to express views and
political goals, the principle of the minority's defence,
minimal requirements for protection of parliamentary
opposition, should be taken into consideration. Furthermore, in
cases of forming the governing body of the parliament, when
committees are set up and their heads are appointed, means are
distributed, and other parliamentary functions are realized,
the cases when minor political groups find themselves in better
position than major ones, should be prevented. However, when
applying the said criteria, the principle of unrestricted
mandate of a parliament member may not be violated. A decision
of the parliament, in accordance with which deputy rights to
participate in parliamentary process are differentiated,
violates the rights of a deputy as People's representative.
The procedure of forming factions is established in
Article 25 of Chapter 5 of Part II of the Statute of the
Seimas. In accordance with the rules of formation of factions,
set forth in this Article, Seimas members are in essence
divided into the following three groups:
1) members of political parties and political
organizations as well as their coalitions who have been elected
to the Seimas from the same list of candidates;
2) members of the said parties and organizations who have
been elected to the Seimas in one - candidate electoral areas;
3) members of political parties and political
organizations who have been elected to the Seimas not from the
list of candidates but in one - candidate electoral areas.
In conformity with aforesaid Article of the Statute of the
Seimas, Seimas members from different groups shall be joined
into factions following different principles. Seimas members
from the first group are joined into factions from the same
list of candidates. Seimas members from the second group may
join only into the faction of the Seimas members of the first
group. Seimas member of the third group may form a faction
following the party and organizational principle, i.e. in the
event when such a group comprises not less than one - fifteenth
of Seimas members.
On the basis of principles of forming factions,
established in the above mentioned Article of the Statute of
the Seimas, the conclusion must be drawn that Seimas members
may form factions under different unequal conditions, i.e. they
are not given the right to act in accordance with uniform
criteria. Thus, the principle of equality of all Seimas members
as well as the principle of equal representation is violated.
Hence, the requirement for members of a faction to sign a
political declaration, set forth in Article 26 of the Statute
of the Seimas. Under the said procedure of forming factions,
Seimas members do not have equal rights in choosing whether to
sign one or another political declaration. Finally, the very
requirement to sign a political declaration, is not in
conformity with the principle of unrestricted mandate. Such a
requirement, especially its part dealing with the commitment
"to act in compliance with the Constitution and laws of the
Republic of Lithuania, seek the strengthening of Lithuania's
independence, and defend its territorial integrity", has lost
legal relevance it possessed after the establishment of an oath
for Seimas members in the Constitution of the Republic of
Lithuania and the Law "On the Procedure of the Enforcement of
the Constitution of the Republic of Lithuania".
The freedom of members of parliament ensured by the
principle of unrestricted mandate, which is established in
Article 59 of the Constitution of the Republic of Lithuania, is
in essence restricted by the procedure of the registration of
factions, set forth in Article 26 of the Statute of the Seimas,
providing for the necessity of special decisions of political
parties and political organizations in this procedure, as well
as indirect legislative procedure of registration, carried out
by the Seimas Board.
The equality of Seimas members in the formation of
factions in accordance with views and political goals is a
relevant element of the implementation of the principle of
unrestricted mandate. As a faction (i.e. members of parliament
are registered in it) has more possibilities to participate in
the activities of the parliament than a Seimas member not
adhering to any faction, there must be ensured the possibility
for all Seimas members to freely choose and form factions.
Seeking to ensure working - capacity and efficiency of Seimas
activities, it is essential to determine a minimum number of
members of a faction.
The rights and possibilities of Seimas members who do not
register themselves into factions, equal with those of other
Seimas members and allowing to implement the rights of People's
representative, may be ensured by recognizing the fact that
they are members of a mixed faction (group), and maintaining
that such a faction (group) has equal rights with other
factions.
On the basis of the aforesaid arguments, the
Constitutional Court draws the conclusion, that the procedure
of forming factions, established in Article 25 and 26 of
Chapter 5 of Part II of the Statute of the Seimas, does not
provide for the criteria and possibilities equal for all Seimas
members to form factions in accordance with views and political
goals, therefore, this procedure contradicts the fourth part of
Article 59 of Constitution of the Republic of Lithuania.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55 and 56 of
the Law of the Republic of Lithuania on the Constitutional
Court, the Constitutional Court of the Republic of Lithuania
has taken the following decision:
to recognize that Articles 25 and 26 of Chapter 5 of Part
II of the Statute of the Republic of Lithuania contradict the
fourth part of Article 59 of the Republic of Lithuania.
This Constitutional Court decision is final and not
subject to appeal.
The decision is promulgated on behalf of the Republic of
Lithuania.