Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
D E C I S I O N
On the dismissal of the case "On the compliance of
Articles 10 and 11 of the Law on Presidential
Elections with the Constitution of the Republic of
Lithuania
11 July 1994, 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 - Sigutė Brusovienė,
the petitioner's representative - Seimas member Andrius
Kubilius, representative of a group of Seimas members,
the party concerned - Seimas member Albinas Lozuraitis and
lawyer Grigorijus Fišas, representatives of the Seimas,
pursuant to the first part of Article 102 of the
Constitution of the Republic of Lithuania and Part 1, Article 1
of the Law on the Constitutional Court of the Republic of
Lithuania, in the public court hearing of 8 July 1994 conducted
the investigation of case No 5/94 subsequent to the petition
submitted to the Court by a group of Seimas members requesting
to investigate if Articles 10 and 11 of the Law of the Republic
of Lithuania on Presidential Elections, adopted 22 December
1992, are consistent with the provision of item 13, Article 67
of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
On 22 December 1992 the Seimas of the Republic of
Lithuania adopted the Law on Presidential Elections (Official
Gazette "Valstybės Žinios" No 2-29, No 3-52, No 4-78, 1993).
Article 10 of said Law prescribes that the elections of the
President of the Republic of Lithuania shall be organized and
conducted by: 1) the Electoral Committee for Elections of the
President of the Republic ; 2) the town and district electoral
committees; and 3) the electoral committees of electoral
districts. Whereas Parts 1 and 2 of Article 11 establish that:
"the Electoral Committee for Elections of the President of the
Republic shall be the supreme institution for the organization
of elections of the President of the Republic. The Electoral
Committee for Elections of the President shall be made up by
the Seimas at least 45 days prior to the election day".
The petitioner - a group of Seimas members request the
Constitutional Court to examine the conformity of the
provisions of Article 10 and 11 of the Law on Presidential
Elections, concerning the formation of the Electoral Committee
for Elections of the President of the Republic, with the
provision of item 13, Article 67 of the Constitution of the
Republic of Lithuania.
The petitioner's request is based on the following
arguments.
On 9 July the Supreme Council of the Republic of Lithuania
adopted the Law on Elections to the Seimas of the Republic of
Lithuania Article 12 of which reads: "The Central Electoral
Committee shall be the supreme institution for the organization
of elections." On 23 July of that year of the Central Electoral
Committee was formed.
In Article 5 of the Constitution it is determined: "In
Lithuania, the powers of the State shall be exercised by the
Seimas, the President of the Republic and Government, and the
Judiciary. The scope of powers shall be defined by the
Constitution". Herefrom the conclusion is drawn that: the
Seimas of the Republic of Lithuania has only those powers which
are stipulated in Article 67 of the Constitution of the
Republic of Lithuania."
The petitioner maintains that "item 13 of Article 67 of
the Constitution of the Republic of Lithuania runs that the
Seimas of the Republic of Lithuania shall form the Central
Electoral Committee and change its composition. This
constitutional provision clearly specifies that there may be
only one supreme institution in the Republic of Lithuania for
the organization of any elections and this institution shall be
formed by the Seimas of the Republic of Lithuania. As it has
already been mentioned, such Central Electoral Committee was
set up on 23 July 1992 and was functioning at the moment when
the Law on Presidential Elections was adopted Article 10 and 11
of which prescribed that the Electoral Committee for Elections
of the President of the Republic should be made up by the
Seimas. Such Committee was formed on the resolution of the
Seimas on 29 December 1992."
Conforming to the above mentioned motives, the petitioner
requests the Constitutional Court to recognize that Articles 10
and 11 of the Law on Presidential Elections contradict the
provision of item 13, Article 67 of the Constitution.
During preliminary investigation of the case the
representative of the party concerned explained that, in his
opinion, Articles 10 and 11 of the Law on Presidential
Elections were consistent with the provision of item 13,
Article 67 of the Constitution and submitted the following
arguments.
1. The petitioner's opinion that the constitutional
provision concerning the Central Electoral Committee clearly
specifies that there may be only one institution in the
Republic of Lithuania for the organization of any elections, is
groundless. According to the petitioners, the Central Electoral
Committee would have to organize the elections of the Chairman,
deputy Chairpersons, Chancellor of the Seimas as well as
chairpersons of the local government Councils and all the other
elected officials. However, the Central Electoral Committee is
not the supreme institution for the organization of any
elections.
2. "The Law on Presidential Elections prescribes that the
elections of the President of the Republic shall be organized
and conducted by the Electoral Committee for Elections of the
President of the Republic, town and district electoral
committees and the electoral committees of electoral districts
that are formed by the Electoral Committee for Elections of the
President of the Republic (Article 10). The only electoral
committee set up for the whole country would not be able to
organize and conduct the elections throughout the country, i.
e. to hand out the ballot-papers to the electorate, to
calculate the voices. The only way is to obligate the electoral
committees of lower level to organize and conduct elections
according to the powers vested in them."
3. The Constitution also does not prescribe that the
Central Electoral Committee must conduct elections of the
President of the Republic. Constitutional reference to the
Seimas' right to form the Central Electoral Committee and
change its composition is included in Chapter "The Seimas" of
the Constitution. This proves that the Central Electoral
Committee shall doubtlessly be the supreme institution for the
organization of elections to the Seimas."
4. In the opinion of the representative of the party
concerned, it was necessary to form a separate Electoral
Committee for Elections of the President of the Republic also
due to the following circumstances:
"1) The Central Electoral Committee was formed by the
Supreme Council of Lithuania prior to the enforcement of the
Constitution of the Republic of Lithuania. Consequently, it was
not formed by the Seimas of the Republic of Lithuania as the
Constitution requires;
2) The Seimas of the Republic of Lithuania acknowledged
that it was necessary to form the supreme institution for the
organization of elections of the President of Lithuania
according to different regulations, as it had done the Supreme
Council of the Republic of Lithuania while setting up the
Central Electoral Committee;
3) The Seimas of the Republic of Lithuania could not
change at that time the composition of the Central Electoral
Committee formed by the Supreme Council of the Republic of
Lithuania. During the adoption of the Law on Presidential
Elections, the Central Electoral Committee participated as a
party concerned in the investigation at the Supreme Court of
cases pertaining to the drawing up of records of the vote
calculation of the election to the Seimas. The changing of the
composition of the Central Electoral Committee until the
completion of the investigation of these cases would contradict
the provisions of Article 5 of the Constitution of the Republic
of Lithuania, as it would be interference by the Seimas with
the activity of the court."
5. "The Constitution of the Republic of Lithuania
establishes only the formation of the Central Electoral
Committee, however it does not regulate its powers. The
competence of the Central Electoral Committee is determined in
the Law on Elections to the Seimas. Said Law does not prescribe
that the Central Electoral Committee shall also conduct
elections of the President of the Republic. The Constitution
entitles the Seimas to the right to enact laws. The Seimas in
laws may establish norms that are in conformity to the
Constitution. Thus, the Constitution does not prohibit the
Seimas to authorize another committee to organize elections of
the President of the Republic. Therefore, the Seimas, having
announced elections of the President of the Republic, formed a
separate institution for the organization and conduction of
these elections - the Electoral Committee for Elections of the
President of the Republic. This right of the Seimas is
stipulated in items 2, 4, 5 of Article 67 of the Constitution."
Conforming to these arguments, the representative of the
party concerned requests the Constitutional Court to recognize
that Articles 10 and 11 of the Law on Presidential Elections
are in compliance with the provision of item 13, Article 67 of
the Constitution.
The Constitutional Court
holds that:
1. The People shall exercise the sovereign power directly
through two main organizational forms: national elections and
referendum. The principles of their organization and the most
important conditions are established in constitutional norms,
and the procedure of their conduction is regulated by
appropriate laws. The legal basis for said forms of democracy
are Articles 2 and 4 of the Constitution as well as the
citizens' suffrage (Articles 33, 34, Constitution).
The 1992 Constitution provides for 3 types of national
elections: elections to the Seimas, elections of the President
of the Republic and elections to the councils of local
governments.
The principles of elections to the Seimas, requirements
for the candidates to Seimas members, the date for the
conduction of elections, cases of pre-term elections to the
Seimas and the procedure for their organization are established
in Chapter 5 of the Constitution.
Chapter 6 of the Constitution determines the main
principles of elections of the President of the Republic,
requirements for the candidates to the post of the President,
the procedure for their nomination, the date for the conduction
of election and the essential rules for the establishment of
election results (Articles 78-81), also cases of pre-term
elections of the President of the Republic (Articles 87, 88),
as well as the procedure for the announcement of new elections
of the President of the Republic (Article 89).
Finally, Chapter 10 of the Constitution prescribes
democratic principles for elections to the councils of local
governments and defines the term for the implementation of
their powers (Article 119).
The main provisions of referendum - the form of direct
democracy - are formulated in Article 9 of the Constitution
which sets forth that "the most significant issues concerning
the life of the State and the People shall be decided by
referendum." The procedure for the announcement and execution
of a referendum shall be established by law.
These provisions have also been appended by constitutional
norms which regulate legislation. In Article 69 of the
Constitution it is established that: "Provisions of the laws of
the Republic of Lithuania may also be adopted by referendum."
Chapter 14 of the Constitution specifies constitutional
provisions that may be amended only by a referendum (Article
148).
The above mentioned constitutional norms which establish
the institutes of democracy and principles of their functioning
are particularized by laws. Legislation is the exclusive
prerogative of the Seimas which is restricted only by the
constitutional norms. Therefore, the Seimas, while regulating
the procedure of the functioning of institutes of democracy, is
obliged by the following constitutional norms:
a) the Seimas' powers established in Article 67 are as
follows:
"3) the Seimas shall adopt resolutions for the
organization of referenda;
4) the Seimas shall announce presidential elections of the
Republic of Lithuania";
"13) the Seimas shall form the Central Electoral Committee
and change its composition";
b) Article 84 determines such powers of the President of
the Republic:
"20) the President of the Republic shall announce regular
elections to the Seimas, and, in cases set forth in part 2 of
Article 58 of the Constitution, announce pre-term elections to
the Seimas."
2. On July 1992 the Supreme Council of the Republic of
Lithuania adopted the Law on Elections to the Seimas of the
Republic of Lithuania. Article 10 of this Law establishes:
"Elections to the Seimas shall be organized and conducted by:
1) the Central Electoral Committee; 2) the electoral committees
of electoral areas; and 3) the electoral committees of
electoral districts." The procedure of the formation of said
committees and the underlying goals are specified in Articles
12, 13 and 14 of the above mentioned Law. For example, Article
12 determines that the Central Electoral Committee shall be the
Supreme institution for the organization of elections", which
"...shall supervise the implementation of this law, shall
ensure that it is applied uniformly..."
A separate Law (of 7 December 1989) has regulated the
procedure for organization and conduction of elections to local
government Councils. In Article 18 of this Law it was set
forth:
"For the organization and conduct of elections to the
local councils of people's deputies the following electoral
committees shall be formed:
The electoral committee of the Republic for the elections
of deputies to local councils of people's deputies;
the regional electoral committees for the elections of
deputies to regional councils of people's deputies;
the town electoral committees for the elections of
deputies to town councils of people's deputies;
the rural electoral committees for the elections to the
rural councils of people's deputies;
district electoral committees for the elections of
deputies to district councils of people's deputies;
electoral committees of electoral districts."
In Article 14 of the 1989 law on Referendum it is
established that for the organization and execution of a
referendum in the Republic the following committees shall be
formed from among the citizens of the Republic of Lithuania:
"1) the Referendum committee of the Republic;
2) the town and district referendum committees;
3) referendum committees of electoral districts";
The contents and pattern of the Law on Presidential
Elections of the Republic of Lithuania was influenced by the
tradition of legal regulation which existed in the period of
the restoration of the State, when the procedure for the
elections to separate state institutions was regulated by
individual laws that were not directly related among
themselves. It should not be ignored that the contents of said
Law was also affected by the fact that elections of the
President of Lithuania had to be organized within comparatively
short period of time, because Article 89 of the Constitution
establishing that an election for the President of the Republic
"must be held within two months" and Article 6 of the Law on
the Procedure for the Enforcement of the Constitution of the
Republic of Lithuania entitling the Seimas to the right to
prolong the term provided in Article 89 "for a period not
exceeding four months" were already in force at that time.
Thus, on 22 December 1992 the Seimas adopted the Law on
Presidential Elections. Article 10 thereof prescribes that the
elections of the President of the Republic shall be organized
and conducted by : 1) the Electoral Committee for Elections of
the President of the Republic; 2) the town and district
electoral committees; and 3) the electoral committees of
electoral districts. Furthermore, in Article 11 of said Law it
is established that: "the Electoral Committee for Elections of
the President of the Republic shall be the supreme institution
for the organization of elections of the President of the
Republic. The Electoral Committee for Elections of the
President of the Republic shall be made up by the Seimas at
least 45 days prior to the election day."
3. Up to now, the elections to various state institutions
to be formed through national elections have been conducted
according to separate laws meant for the formation of a
specific institution, which prescribed that separate electoral
committees should be set up for the formation of specific
institutions. Such practice does not entirely conform to the
constitutional provision that the Seimas "shall form the
Central Electoral Committee and change its composition. Taking
into consideration that this provision is formulated in Article
67, in which the most important powers of the Seimas are
defined, also that only one concrete institution for the
organization of elections is mentioned in this Article, the
conclusion is to be drawn that, under said provision, only one
uniform and universal institution for the organization of
elections - the Central Electoral Committee - must be formed.
However, said constitutional provision has not been realized
yet. Although, judging from the name, the Central Electoral
Committee set up for elections to the Seimas could take the
place of the above mentioned universal committee, but in fact
it may not be considered as such because: 1) it does not have
the powers indispensable for the universal committee; 2) it was
formed not in the procedure prescribed by the Constitution (it
was made in 1992 by the Supreme Council and not by the Seimas;
even the Central Electoral Committee which was formed by the
Seimas on 25 March 1993 has not become universal as it was not
granted the appropriate functions of such committee and further
remained a special committee for elections to the Seimas). Due
to the above mentioned circumstances, other committees set up
for elections to other state institutions could not have the
status of the Central Electoral Committee either, the more so
that some of them, for instance the Electoral Committee for
Elections of the President of the Republic, stopped their
functioning after the elections.
The constitutional provision pertaining to the uniform
Central Electoral Committee should be realized only by legal
establishment of its purpose in accordance with other
constitutional provisions, of principles of formation and
competence and - having co-ordinated other laws on elections
with these provisions - by the formation of such universal
Central Electoral Committee in the procedure prescribed by
laws. Until all this is done, the norm established in Article 3
of the Law "On the Procedure for the Enforcement of the
Constitution of the Republic of Lithuania" specifying that
"provisions of the laws of the Republic of Lithuania which
determine the status of the supreme institutions of State power
and administration of the Republic of Lithuania as well as the
status of deputies and local governments shall be effective
until the elected Seimas decides otherwise" is binding.
However, the present legal situation is to be interpreted
as ambiguous, as under this situation there remains a collision
between said laws on elections which is preconditioned by the
circumstance that the uniform supreme electoral institution has
not been formed and its status has not been regulated yet. As
this collision may not be resolved without special legal
regulation, this legal situation is to be interpreted as a
lacuna.
The Constitutional Court does not resolve issues
concerning lacuna. This is the prerogative of the legislator.
Therefore, the Constitutional Court holds that this case is to
be dismissed.
Conforming to item 2, Part 1, Article 69 as well as Part 3
of Article 69 of the Law on the Constitutional Court of the
Republic of Lithuania, the Constitutional Court has passed the
following
decision:
to dismiss the initiated legal proceedings of case "On the
compliance of Articles 10 and 11 of the Law on Presidential
Elections with the Constitution of the Republic of Lithuania".