Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the 10 December 1996 Seimas
Resolution "On the Programme of the Government of
the Republic of Lithuania" with the Constitution
of the Republic of Lithuania
Vilnius, 10 January 1998
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the petitioner - Stasys Šedbaras, the consultant to the
State for state and human rights questions, the representative
of the Government of the Republic of Lithuania,
the party concerned - Andrius Kubilius, First Deputy
Chairman of the Seimas, the representative of the Seimas of the
Republic of Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law on
the Constitutional Court of the Republic of Lithuania, on 30
December 1997 in its public hearing conducted the investigation
of Case No. 19/97 subsequent to the petition submitted to the
Court by the petitioner - the Government of the Republic of
Lithuania - requesting to investigate if the 10 December 1996
Seimas Resolution "On the Programme of the Government of the
Republic of Lithuania" was in compliance with Part 4 of Article
92 of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 10 December 1996, the Seimas adopted the Resolution "On
the Programme of the Government of the Republic of Lithuania"
(Official Gazette "Valstybės Žinios", No. 120-2821, 1996).
The petitioner - the Government of the Republic of
Lithuania - requests the Constitutional Court to investigate
whether the said resolution of the Seimas (hereinafter in the
ruling referred to as the disputed resolution) is in compliance
with Part 4 of Article 92 of the Constitution.
The petitioner grounds its request on the following
arguments.
By the disputed resolution the Seimas approved the
programme of the Government. In the said programme the
activities of the Government were provided for the whole period
from 1997 to 2000, i.e. until the expiration of the powers of
the Seimas but not those of the President of the Republic.
Part 4 of Article 92 of the Constitution provides that the
Government must return its powers to the President of the
Republic after the Seimas elections or upon electing the
President of the Republic, while Article 101 of the
Constitution wherein situations are established as to when the
Government must resign does not contain any stipulation
requiring that it must resign after elections of the President
of the Republic. Article 84 of the Constitution establishes the
right of the President as his prerogative to accept the powers
returned by the Government upon the election of a new Seimas,
as well as to accept resignations of the Government and submit
to the Seimas the candidature of a new Prime Minister for
consideration or a new composition of the Government for
approval.
In the opinion of the petitioner, the Constitution does
not establish as to when in reality the Government, upon the
election of the President of the Republic, shall return its
powers: upon announcement of the election results, or upon
expiration of the term of office of prior elected President of
the Republic, or upon the election of a new President of the
Republic after he has sworn and taken office.
The petitioner has also indicated that certain Seimas
members doubt whether the activity of the Government will be
legal after the elections of the President of the Republic, and
whether due to this the disputed resolution is in compliance
with Part 4 of Article 92 of the Constitution.
II
In the court hearing S. Šedbaras, the representative of
the petitioner, presented the following additional arguments.
In Article 101 of the Constitution all the bases when the
Government must resign are enumerated. This list is final. It
does not provide that the Government must resign after the
President of the Republic is elected, therefore the statement
that the Government must resign in such a case is an extended
interpretation of the Constitution. The analysis of the
Constitution as an integral act allows one to state that the
Government's resignation and the returning of its powers to the
President of the Republic are not identical legal actions, and
thus they cause different legal consequences.
The representative of the petitioner pointed out that the
actions with legal consequences, which arose at the beginning
of the formation of the Government as well as when this process
is finished, are made by the Seimas, and actually, in essence,
by a political party or a coalition of political parties
constituting the Seimas majority. The President of the Republic
may submit to the Seimas any candidature of the Prime Minister,
however, if the majority of the Seimas does not approve this
candidature, this proposal will not cause any legal
consequences and the Government will not be started to be
formed. Theoretically it is possible that ministers might be
appointed only upon the will of the Prime Minister or the
President of the Republic leaving the opinion of the Seimas
majority out of account, however, practically this is
impossible due to two reasons. First, the Prime Minister is
appointed upon the approval of the Seimas majority. Thus, it is
hardly probable that other members of the Government will be
chosen without paying attention to the will of the Seimas
majority as the Seimas majority may express non-confidence in
the Prime Minister, or in the whole Government, or in
individual ministers at any time (Article 101 of the
Constitution). Second, the Government will be empowered to act
only after the approval of its programme. The Seimas may force
the Government to resign if it disapproves of the programme two
times in succession. Therefore, the powers of the Government
are directly related with those of the Seimas.
In the Constitution nothing is said about the destiny of
the Government powers after the President of the Republic is
elected and the powers of the Government are returned to him.
In the opinion of the representative of the petitioner, it is
possible to state that those who drafted the text of the
Constitution, while formulating constitutional norms,
differentiated between the Government's continuing after
returning its powers and resigning after the Seimas elections,
and that after returning its powers after the elections of the
President of the Republic.
The representative of the petitioner indicates that after
a new Seimas is elected there is no subject who has empowered
the Government to discharge the state power any longer. The
Constitution empowers the President of the Republic to charge
the resigned Government with only temporal empowering, i.e.
until a new Government starts to exercise its duties.
After the President of the Republic is elected, the Seimas
which has empowered the Government retains its powers. Until
either the Seimas, or the Government itself expresses a
political will to terminate the powers of the Government, there
are no grounds to state that they have expired. The People,
respecting a newly elected head of the State, vests in him the
right by the Constitution, and at the same time obligates the
Seimas to learn about and to evaluate the position of the
President of the Republic as regards the Government and to
discuss anew the issue of the Government's powers. However, the
last word is left with the position of the majority of the
Seimas, and there are no grounds to state that this procedure
is bound with the resignation of the Government.
The representative of the petitioner has also indicated
that the Constitution does not particularise as to when, after
the President of the Republic is elected, the Government has to
return its powers. Article 82 of the Constitution provides that
the elected President of the Republic shall begin his duties on
the day following the expiration of the term of office of the
President of the Republic, after taking an oath. In the opinion
of the representative of the petitioner, it means that only
then the duty of the Government to return its powers occurs.
III
In the court hearing A. Kubilius, the representative of
the party concerned, has explained that the Constitution
provides for the mechanism of a half-presidential state power
system. According to it, the President of the Republic elected
in the direct elections has to act together with the Government
which must enjoy the confidence of the political majority of
the Seimas.
The analysis of the Constitutional norms clearly allows to
state that the activities of the Government depend only upon
the confidence of the Seimas majority. The mechanism of the
formation and accountability of the Government of the Republic
of Lithuania functions in the same way as constitutional
mechanisms of half-presidential power in other European states
(for example, France, Poland, Austria, Finland, etc.).
The representative of the party concerned has also
explained that in political science the parliamentary system of
the formation of the Government and its accountability is
described as an "accountable Government", thereby emphasising
that the political majority of the Parliament plays the most
important role in the formation of the Government. The activity
of the Government in a parliamentary system depends upon the
support by the constant parliamentary majority, therefore such
a Government is a party Government. In the half-presidential
constitutional system the President's role in formation of the
Government depends upon his relations with the parliamentary
majority. Due to the above reason the role of the President may
be of three kinds. First, when the President is a leader of the
political majority and may politically influence the formation
of the Government, affecting the majority of the Parliament.
Second, when there is no obvious political majority in the
Parliament, and the President strives for the compromise of
various political forces. In the third case, the majority of
the Parliament does not support the President, and therefore
his influence upon the formation of the Government becomes the
least.
The representative of the party concerned has indicated
that the parliamentary majority of the Seimas usually changes
only after Seimas elections. This majority has to approve the
programme of the Government, i.e. the plan of its activities,
which is a political document as well as the plan of activities
of the Seimas majority for the whole period of the Seimas
empowering. It is not specified in the Constitution for what
period the programme of the Government is composed and
approved. The Seimas was right in approving the programme of
the Government in which the work was planned for the whole term
of office of the Seimas, thus the disputed resolution is in
compliance with the Constitution.
The representative of the party concerned has also
presented his arguments concerning the powers of the Government
and the prerogatives of the President of the Republic after the
elections of the President of the Republic when he begins his
duties. His arguments do not negate, in essence, those
presented by the representative of the Government.
The Constitutional Court
holds that:
On 10 December 1996 the Seimas approved the programme of
the Government presented by Prime Minister Gediminas Vagnorius
wherein the activities of the Government was provided for
during the period from 1997 to 2000, i.e. during the whole
period of powers of the present Seimas. Until the expiration of
this period the elections of the President of the Republic have
occurred. Under the Constitution, the Government must return
its powers, therefore the petitioner requests to decide whether
the disputed resolution of the Seimas on the approval of the
programme of the Government is in compliance with the
Constitution.
In deciding this question, the Constitutional Court will
consider various aspects of reciprocity between state powers,
as well as the significance of approval of the programme of the
Government.
1. Article 5 of the Constitution provides: "In Lithuania,
the powers of the State shall be exercised by the Seimas, the
President of the Republic and the Government, and the
Judiciary." By this norm the content of which is particularised
in other articles of the Constitution, the principle of the
separation of powers of the state is consolidated. This is the
fundamental principle of the organisation and functioning of a
democratic state under the rule of law. As it was noted in the
26 October 1995 ruling of the Constitutional Court, this
principle means that legislative, executive and judicial powers
must be separated, sufficiently independent, but at the same
time they must be balanced. The competence answering their
purpose is conceded to every institution of power, the concrete
content of which depends on the place of that institution among
other institutions of power and on the relation of its
authorisations with those of other institutions.
In the system of state authority, every power of the state
occupies a certain place and accomplishes functions
characteristic of it only. The Seimas which is composed of
representatives of the nation - Seimas members - passes laws,
supervises the Government activity, approves the budget of the
state and supervises its maintenance, as well as decides other
issues provided for in the Constitution. The President of the
Republic - the Head of the State - represents the state and
accomplishes everything which he is entrusted to perform by the
Constitution and the laws, while the Government is the
executive-administering institution of the country, it
implements laws and other legal acts and administers the
affairs of the country. The courts implement justice.
Part 2 of Article 5 of the Constitution provides that the
scope of powers shall be defined by the Constitution. When
general tasks and functions of the state are being
accomplished, the activities of state institutions are based on
their co-operation, therefore their interrelations are to be
defined as inter-functional partnership. One of the ways to
ensure co-operation between state institutions is the principle
of responsibility of the Government to the Parliament, which is
consolidated in the constitutions of most European states.
In comparative constitutional law various forms of state
governance are known. In most states of today's world the
republic is consolidated as a form of governance. As a rule,
republics are categorised as parliamentary, presidential, and
thus termed mixed (half-presidential). Presidential republics
are, for example, the USA, as well as some states in South
America and Africa. In the legal systems of European states the
model of parliamentary governance of the state has become
firmly established. The variety of forms of state governance
has been determined by national, historic, political and
cultural traditions.
Depending on the form of governance and the role of the
Parliament in forming the Government, two fundamental models of
Government formation procedures - parliamentary and
non-parliamentary - are distinguished. The parliamentary model
of Government formation is characteristic of the fact that the
Government is formed taking account of the parliamentary
election results. It is for this fact that the head of the
state appoints that person as Head of the Government the
candidature of whom is approved by the Parliament. In such a
case the activity of the Government is based on the confidence
of the Parliament and it is responsible to the Parliament for
its policy implemented. The non-parliamentary formation of the
Government is characteristic of the fact that the executive
power does not need confidence of the Parliament as the head of
the state forms it on his own. However, even in the event of
non-parliamentary formation of the Government, the President,
as a rule, appoints the most important officials of this
institution upon the consent of the Parliament.
Under the competence of state institutions as established
by the Constitution of the Republic of Lithuania, the
governance model of the State of Lithuania is to be attributed
to the parliamentary republic governance form. Alongside, one
should note that the governance form of our state is also
characteristic of certain peculiarities of thus termed mixed
(half-presidential) form of governance. This is reflected in
the powers of the Seimas, those of the head of the state - the
President of the Republic, - and those of the Government, as
well as in the legal arrangement of their reciprocal
interaction. In the Lithuanian constitutional system the
principle of the responsibility of the Government to the Seimas
has been established which determines a respective way of
Government formation.
In the Lithuanian system of institutions of the executive
power, the Government implementing state administration is
exceptionally important. The Government is a joint institution
of general competence. It is composed of the Prime Minister and
ministers. Article 94 of the Constitution provides that the
Government shall: administer the affairs of the country,
protect the inviolability of the territory of the country;
ensure state security and public order; implement laws and
resolutions of the Seimas concerning the implementation of
laws, as well as decrees of the President; co-ordinate the
activities of the ministries and other governmental
institutions; prepare the draft budget of the State and submit
it to the Seimas, execute the state budget and report of the
fulfilment of the budget to the Seimas; draft bills and submit
them to the Seimas for consideration; establish diplomatic
relations and maintain relations with foreign countries and
international organisations; discharge other duties prescribed
to the Government by the Constitution and other laws. The scope
of powers of the Government are defined by the Constitution.
The Government are jointly responsible to the Seimas for the
general activities of the Government. In guiding the spheres of
their commissioned management, the ministers are responsible to
the Seimas, as well as the President of the Republic, and are
under direct subordination of the Prime Minister.
2. A great number of factors influence the functioning of
political system of a democratic society, the programmes of
various parties and political organisations being among them,
wherein major tasks and directions of activities of various
entities of political process are set out. Programme provisions
both promote formation of political will and rally supporters
for the purpose of achievement of one or another desired aim.
These provisions are a significant element of election
campaigns. The election programmes of political parties and
political organisations, those of candidates for the President
of the Republic, Seimas members, members of self-government
councils indicate as to what one is going to attempt to perform
in a certain sphere of activity. However, in each case this is
a mere exposition of political or professional determination of
a person or group of persons to act in one or another way but
never a legal document of the state. A political party or
organisation the representative of which has been elected or
appointed to public service implements its programme provisions
in the scope which is possible under the powers attributed to
it under the law. For instance, the President of the Republic
implements the aims of his election programme by submitting
respective draft laws, returning to the Seimas the adopted laws
for repeated consideration, appealing to the Constitutional
Court as to the compliance of governmental acts with the
Constitution and the laws, making reports about the situation
in Lithuania and the domestic and foreign policies, etc.
Seimas members and their groups implement their programme
provisions by submitting to the Seimas draft laws and other
draft legal acts, approving them during deliberation, voting
for bills or acting in other ways as provided for in the
Constitution and the Statute of the Seimas.
The Seimas, by approving the programme of the Government,
confers powers to the Government to act. Thereby constitutional
norms regulating the activity of the Government are
implemented, as well as those consolidating the principle of
Government's responsibility to the Seimas: it has been
established in the constitutional structure of powers that only
the Government having the confidence of the Seimas may
accomplish its powers. The legal form of conferring such powers
is voting in the Seimas for approval of the programme of the
Government.
The basis of the programme of the Government is programmes
of the political parties which have won the elections, however,
the provisions of these programmes acquire legal meaning only
through the programme of the Government by obligating both the
Government and the majority of the Seimas supporting it to act
respectively. Such a recognition of the legal meaning of the
programme of the Government is a characteristic peculiarity of
parliamentary democracy. It is consolidated in the norms of
Item 7 of Article 67 and Part 5 of Article 92 of the
Constitution.
It is due to this that the President of the Republic has
to appoint the Prime Minister who is supported by the Seimas
majority and to confirm such a Government the programme of
which can be approved by the Seimas by the majority of votes of
its members taking part in the sittings. Otherwise, the
institution of the executive power ensuring functioning of the
state would never be formed. Attempting to acquire the
confidence of the Seimas, in foreseeing trends of its activity
for a certain time period, the Government will have to take
into consideration possible approval or non-approval of the
Seimas. By expressing its confidence in the programme of the
Government, the Seimas takes an obligation to supervise as to
how the Government will be acting in implementing its
programme. The programme of the Government is the basis of
political-legal responsibility of the Government to the Seimas
as they are jointly responsible to the Seimas for their common
activities. The Seimas which has conferred powers to the
Government to act may express non-confidence in the Government
or the Prime Minister. The consequence of the non-confidence
expression is resignation of the Government.
Thus the programme of the Government is to be assessed as
a legal document wherein the main landmarks of state activities
for certain time period are set forth. It is to be published in
the official gazette "Valstybės Žinios". Furthermore, its
significance as a legal form determining the actions of the
institutions forming the Government and ensuring reciprocity
between the Government and these institutions is of no less
importance.
3.1. The Government - a joint institution of the executive
power - is formed by the Seimas and the President of the
Republic, however, their role and tasks are different. The
President of the Republic participates in this process as the
head of the state accomplishing the functions provided for in
the Constitution, while the Seimas to which the Government is
responsible acts as representatives of the People.
Conferring powers to the Government to act and control
over its activities are an important sphere of Seimas
competence. Article 67 of the Constitution provides for the
following Seimas prerogatives: the Seimas shall: approve or
reject the candidature of the Prime Minister proposed by the
President of the Republic; consider the programme of the
Government submitted by the Prime Minister, and decide whether
to approve it or not; supervise the activities of the
Government; and it may express non-confidence in the Prime
Minister or individual ministers, etc. Under Part 1 of Article
96 of the Constitution, the Government shall be jointly
responsible to the Seimas for the general activities of the
Government. Part 1 of Article 5 of the Law on the Government of
the Republic of Lithuania provides that the Government shall
present an account of implementation of the programme of the
Government to the Seimas at least once a year.
The relations between the President of the Republic and
the Government are regulated by the norms of the Constitution
which provide that the President of the Republic shall appoint,
upon approval of the Seimas, the Prime Minister, charge him or
her to form the Government, and approve its composition. He
shall: remove, upon approval of the Seimas, the Prime Minister
from office; accept the powers returned by the Government upon
the election of a new Seimas, and charge it to continue
exercising its functions until a new Government is formed;
accept resignations of the Government and, as necessary, charge
it to continue exercising its functions or charge one of the
Ministers to exercise the functions of the Prime Minister until
a new Government is formed. The President of the Republic shall
submit to the Seimas, upon the resignation of the Government or
after it returns its powers and no later than within 15 days,
the candidature of a new Prime Minister for consideration, etc.
In the constitutional practice of European states where
the President is elected directly, it frequently occurs that
political views of the President and the parliamentary majority
do not coincide or the president is not supported by the
parliamentary majority. He, as the head of the state, is
concerned to form a Government that would be supported by the
majority, therefore he does not ignore the parliamentary
majority, even though he has the right of choice. According to
the constitutional tradition of Europe, the President appoints
a person as the Head of the Government who is supported by the
parliamentary majority. The said constitutional practice is
observed in Lithuania as well.
The analysis of the authorisations of the President of the
Republic or the Seimas in the sphere of Government formation
allows to assert that the main task of the activities of the
President of the Republic in this process is to guarantee the
interaction between the institutions of power. His actions in
Government formation should be decided by the responsibility to
form an efficient Government, i.e. having the confidence of the
Seimas.
Therefore referring to the parliamentary democracy
principles that have been established in the Constitution, it
is to be assumed that the President of the Republic cannot
freely choose candidatures of the Prime Minister or ministers,
for in all cases the appointment of the said officials depends
on either the Seimas confidence or distrust in them. The fact
that the President of the Republic, as a part of the executive
power, possesses some political possibilities to influence the
formation of Government personal structure should not be
ignored either.
3.2 It has been stated in the Government petition that
Part 4 of Article 92 of the Constitution does not prescribe as
to when in reality the Government must return its powers upon
electing the President of the Republic: upon announcement of
election results, upon the expiration of the term of office of
prior elected President of the Republic and after the elected
President of the Republic has sworn and taken office.
Analysing the issue of the returning of powers of the
Government, the Constitutional Court notes, that the norms of
Part 4 of Article 92 of the Constitution may not be interpreted
aside from other constitutional norms. Constitutional norms
regulating different aspects of Government formation as well as
interrelations of the Seimas, the President of the Republic and
the Government have been established in more than one chapter
or part of the Constitution. The Constitution is an integral
act, therefore in this particular case the priority should be
given to systematic interpretation. While interpreting the
content of the norm of Part 4 of Article 92 of the
Constitution, the purpose of adoption of the said norm should
be taken into consideration.
It is established in Article 82 of the Constitution: "The
elected President of the Republic shall begin his duties on the
day following the expiration of the term of office of the
President of the Republic, after, in Vilnius and in the
presence of the representatives of the People - members of the
Seimas, taking an oath to the People, swearing to be loyal to
the Republic of Lithuania and the Constitution, to
conscientiously fulfil the duties of President, and to be
equally just to all."
In the countries where the President is elected on the
basis of universal suffrage, there is, as a rule, a certain
time period between the announcement of the election results
and the beginning of exercising of his duties. During the said
period the President whose term of office is expiring proceeds
with his duties, the Parliament as well as the Government
having the reliance of the latter, and in forming of which the
head of the state had participated, discharge their functions.
Such a sufficiently long pause is understandable, because the
President who is leaving his office needs some time to prepare
to transfer the duties of the head of the state, and a new one
- to accept these duties.
The aforementioned time period has been established, too,
in Article 80 of the Constitution of the Republic of Lithuania.
During this time period the President of the Republic whose
term of office is expiring shall be the head of the state. All
powers vested in the head of the state shall belong to him
according to the Constitution. He is the only person able to
implement them. From the announcement of the final results of
elections until taking an oath, the newly elected President of
the Republic has no powers of the head of the state as yet. The
Government, in formation of which the President of the Republic
whose term of office is expiring had participated, proceeds
with the implementation of its powers.
The powers of the former President of the Republic cease
and his relation with the Government in the formation of which
he had also participated is terminated after the new President
of the Republic takes an oath. The Constitutional Court
referring to the analysis of constitutional norms has drawn a
conclusion, that the Government must return its powers to the
newly elected President of the Republic after he takes an oath
and takes office.
Alongside, the Constitutional Court notes that Article 6
of the 24 January 1993 Republic of Lithuania Law on the Office
of President provides: "The day after the President of the
Republic takes oath, the Government of the Republic of
Lithuania shall return its powers to the President", while Part
1 of Article 8 of the 19 May 1994 Law on the Government of the
Republic of Lithuania provides: "Upon the election of a new
President of the Republic, the Government shall within 5 days
return its powers." However, interpreting the norms of Articles
80 and 82 and Part 4 of Article 92 of the Constitution, the
Constitutional Court draws a conclusion that the powers of the
Government should be returned to the President of the Republic
on the same day when he begins to exercise his duties. This
interpretation is based on the fact that the Constitution does
not provide for any other time period.
3.3. After comparing the notions that are used in the
norms of Article 101 and Part 4 of Article 92 of the
Constitution "returning the powers of the Government" and
"resignation of the Government", the petitioner began to doubt
whether, upon the election of the President of the Republic,
the President of the Republic is empowered to submit to the
Seimas a new candidature of the Prime Minister for
consideration and a new Government for approval.
The basis for the resignation of the Government is
established in Part 3 of Article 101 of the Constitution. It is
prescribed therein that the Government must resign in the
following cases:
1) if the Seimas disapproves two times in succession of
the programme of the newly-formed Government;
2) if the majority of all the Seimas deputies express a
lack of confidence in the Government or in the Prime Minister
in a secret ballot vote;
3) if the Prime Minister resigns or dies;
4) after Seimas elections, when a new Government is
formed.
In addition, the Government must resign when more than
half of the Ministers are changed and it is not re-invested
with authority by the Seimas.
The Constitutional Court notes that this list of the bases
for the resignation of the Government is final.
Apparently, one of the main reasons for the resignation of
the Government is the loss or non-acquisition of confidence in
the Government by the Seimas. The Constitution, however,
provides for various forms of non-confidence expression: first,
the Seimas expresses non-confidence directly; second, it
expresses non-confidence by disapproving two times in
succession of the programme of the newly formed Government;
third, the Government must repeatedly, i.e. anew, be
re-invested with authority by the Seimas. Finally, another two
cases presume that the Government loses the confidence of the
Seimas, i.e. it loses its powers to act, when: first, the Prime
Minister resigns or dies; or second, after Seimas elections.
Thus the resignation of the Government means the end of
its activities. The procedure for forming a new Government is
started after its resignation, or prior to it as provided by
Item 4 of Part 3 of Article 101 of the Constitution.
In addition to the notion of "the resignation of the
Government", the notion of "the returning of the powers of the
Government" is also used in the Constitution. As it was
mentioned above, the grounds for the resignation of the
Government are exhaustively listed in Article 101 of the
Constitution. Their essence is loss or non-acquisition of
confidence in the Government by the Seimas. The returning of
the powers of the Government is provided for in two cases:
first, after Seimas elections; second, upon electing the
President of the Republic (Part 4 of Article 92 of the
Constitution).
Thus a conclusion may be drawn that the expiration of the
powers of one of the subjects who has participated in forming
the Government entails the necessity of returning the powers of
the Government. Constitutional norms, however, attribute
different meaning to the change of the aforesaid subjects and
their influence on the formation of the Government. For
instance, after Seimas elections the Government must not only
return its powers but also resign (Item 4 of Part 3 of Article
101 of the Constitution). Thus in this case the returning of
the powers is the first step towards compulsory resignation of
the Government imperatively prescribed by the Constitution. It
is evident that after Seimas elections, the subject from which
the Government had received confidence and powers to act is
clearly missing, therefore the Government must resign.
Upon the election of a new Seimas, the President of the
Republic, following Item 6 of Article 84 of the Constitution,
accepts the powers returned by the Government and charges it to
continue exercising its functions until a new Government is
formed. The President of the Republic submits to the Seimas the
candidature of a new Prime Minister for consideration not later
than within 15 days. This starts the formation of a new
Government. Upon the formation of a new Government, the
Government that had returned its powers resigns (Item 4 of Part
3 of Article 101 of the Constitution).
After elections of the President of the Republic, the
Government also returns its powers to a new President. However,
the Constitution does not prescribe that the Government must
resign then. This is due to the fact that after the change of
the head of the state, the confidence of the Seimas in the
Government remains intact. Therefore, in case of the returning
of the powers after the election of a new President of the
Republic, the same Government must be charged to continue
exercising its functions by the head of the state. In case of
resignation of the Government, the President of the Republic
may charge another member of the Government to exercise
functions of the Prime Minister.
Thus the Constitutional Court emphasises that there are no
grounds to treat the notions "the resignation of the
Government" and "the returning of the powers of the Government"
as identical. They relate to different legal situations. This
also determines different legal consequences.
Item 8 of Article 84 of the Constitution provides that the
President of the Republic shall submit to the Seimas, upon the
resignation of the Government or after it returns its powers
and no later than within 15 days, the candidature of a new
Prime Minister for consideration. The Constitutional Court
notes that the essence of this norm is the prerogative of the
President of the Republic to submit to the Seimas the
candidature of a new Prime Minister for consideration in due
time. The notions of "resignation" and "returning of the
powers" used herein are to be interpreted only with respect to
the aforesaid circumstances.
It should be noted that constitutional regulation of the
returning of the powers of the Government after the election of
the President of the Republic of Lithuania reminds us, at least
partly, of the constitutional tradition of the Third French
Republic, when the Government there would resign after
parliamentary elections as well as after presidential
elections. The resignation after presidential elections was
called the "resignation of courtesy" (démission de courtoise).
After the "resignation of courtesy", the Government was to be
approved anew. This procedure is said to be purposeful due to
the relation of the Government with the head of the state, and
that it reflects certain tendencies of the development of
governance model.
Although the Constitution of the Republic of Lithuania
treats the returning of the powers in a somewhat different way,
it undoubtedly expresses respect to the institution of the head
of the state and recognises the importance of relations between
the President of the Republic and the Government. The analysis
of the content of Articles 84, 92, and 101 allows us to state
that such returning of the powers does not presuppose the
resignation of the Government. Otherwise the Constitution would
directly establish that after the election of a new President
of the Republic, the Government shall return its powers and
resign. Having returned its powers, the Government remains
legitimate.
The returning of the powers procedure, however, is not
merely an expression of inter-institutional courtesy: it
provides the President of the Republic with the opportunity for
checking whether the Seimas remains to be confident in the
Government. The President of the Republic, following Article 92
and Item 8 of Article 84 of the Constitution, as well as taking
account of the tradition of parliamentary democracy, under the
procedure established by Item 8 of Article 84 of the
Constitution, submits to the Seimas the candidature of the
Prime Minister of the Government that has returned its powers
for consideration. Upon the consent of the Seimas to the
candidature of the Prime Minister, upon the appointment of the
Prime Minister by the President of the Republic, and upon the
approval of the composition of the Government submitted, the
Government is anew empowered to exercise its functions, unless
more than half of the ministers have been changed.
In case the Seimas does not approve the candidature of the
Prime Minister, the Government must resign (Item 2 of Part 3 of
Article 101 of the Constitution). This would constitute
constitutional grounds for the procedure of formation of a new
Government.
3.4. According to the Constitution, the Government
continuously implements the executive power. The activities of
the Government are based on the confidence of the Seimas which
has approved the programme of the Government.
The programme of the Government is compulsory to the
respective Government for the whole period of its powers. Upon
the request of the powers to act, a new Government submits its
programme to the Seimas for consideration. The Seimas' approval
of the programme of the Government expresses its confidence in
the Government in principle for the period until the powers of
the Seimas expire. Naturally, it does not mean that after the
Government has resigned, the same programme will be approved.
Taking account of the arguments set forth in this ruling,
one is to conclude that the 10 December 1996 Seimas Resolution
"On the Programme of the Government of the Republic of
Lithuania" is in compliance with Part 4 of Article 92 of the
Constitution of the Republic of Lithuania.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that the 10 December 1996 Seimas Resolution
"On the Programme of the Government of the Republic of
Lithuania" is in compliance with the Constitution of the
Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.