Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the Law "On Implementation of
the Law 'On Amending Article 29 of the Republic of
Lithuania Law on the Provision of Information to
the Public'", as well as the 25 February 1997
Republic of Lithuania Seimas Resolution "On
Dismissing V. Nikitinas from the Post of the
Procurator General", with the Constitution of the
Republic of Lithuania
Vilnius, 21 April 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, Teodora
Staugaitienė, and Juozas Žilys,
the secretary of the hearing-Daiva Pitrėnaitė,
the petitioner-Česlovas Juršėnas, the representative of a
group of Seimas members,
the party concerned-Vaidotas Vaičaitis, a consultant at
the Legal Division of the Seimas Chancery, 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 26
March 1998 in its public hearing conducted the investigation of
Case No. 13/97 subsequent to the petition submitted to the
Court by the petitioner-a group of Seimas members-requesting to
investigate whether the Law "On Implementation of the Law 'On
Amending Article 29 of the Republic of Lithuania Law on the
Provision of Information to the Public'" and the Republic of
Lithuania Seimas Resolution "On Dismissing V. Nikitinas from
the Post of the Procurator General" were in compliance with the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 12 December 1996, the Seimas passed the Law "On
Implementation of the Law 'On Amending Article 29 of the
Republic of Lithuania Law on the Provision of Information to
the Public'" (Official Gazette Valstybės žinios, No. 121-2851,
1996; hereinafter in the ruling referred to as the disputed
law) whereby it was established that after the Law "On Amending
Article 29 of the Republic of Lithuania Law on the Provision of
Information to the Public" of 5 December 1996 has gone into
effect, the powers of the members of the Council of the
National Radio and Television of Lithuania (hereinafter
referred to as RTL) who had been appointed by the President of
the Republic and the Seimas shall cease.
The petitioner requests to investigate whether this law is
in compliance with Articles 5, 67 and Part 4 of Article 89 of
the Constitution.
On 25 February 1997, the Seimas adopted the Resolution "On
Dismissing V. Nikitinas from the Post of the Procurator
General" (Official Gazette Valstybės žinios, No. 18-391, 1997;
hereinafter in the ruling referred to as the disputed
resolution). By its resolution the Seimas dismissed V.
Nikitinas from the post of the Procurator General and charged
him to temporarily perform the duties of the Procurator
General.
The petitioner requests to investigate whether the part of
the said Seimas resolution regarding the substitution of the
Procurator General is in compliance with Article 5, Part 1 of
Article 68, and Part 1 of Article 69 of the Constitution.
II
The petitioner grounds his request on the following
motives.
1. In 1996, following then in force Article 29 of the
Republic of Lithuania Law on the Provision of Information to
the Public, the President of the Republic of Lithuania
appointed 3 members to the RTL Council. In attempt to change
the composition of the RTL Council, the Seimas amended Article
29 of the said law. Due to such an amendment the President of
the Republic lost the right which had been granted to him
several months before to take part in forming the RTL Council.
The petitioner does not question the prerogative of the
Seimas to broaden the rights of Head of State by means of
legislation in the sphere of public life which is not directly
regulated by the Constitution. The parliament may also restrain
the powers of the President of the Republic providing they are
not defined in the Constitution but additionally granted by a
law passed by the Seimas. Formally, it was done just so: the
Seimas of a certain term of office broadened the powers of the
President of the Republic, while the Seimas of another term of
office restrained them. It is important, however, that in this
case not only did the Seimas restrain the powers of the
President of the Republic by the law (and this should not be
questioned) but, in place of the President of the Republic,
reduced by another act-the disputed law-the term of office of
the members of RTL Council who had been appointed by the
President of the Republic. Thus, the Seimas interfered with the
discharge of legitimate functions of another power. Meanwhile,
Article 5 of the Constitution establishes the principle of
separation of powers; under this principle, no power of the
state may act for another, nor may it discharge someone else's
functions. Even if the legislator, after the legal basis had
been changed, proposed to the President of the Republic that he
dismiss the members of the RTL Council that he had appointed,
and in case the President of the Republic had not dismissed
them, even in that event an appeal of the Seimas or Seimas
members to the Constitutional Court should be considered a
constitutional act but not that of the adoption of the disputed
law. Neither Article 67 of the Constitution which establishes
Seimas powers nor other articles permit the Seimas to act as
the President of the Republic, the Government or the courts.
Under Part 2 of Article 77 of the Constitution, the President
of the Republic shall "perform all the duties which he or she
is charged with by the Constitution and laws", while under Part
4 of Article 89, "the powers of the President of the Republic
may not be executed in any other cases, or by any other persons
or institutions".
2. By his decree, the President of the Republic proposed
that the Seimas dismiss V. Nikitinas from the post of the
Procurator General. Alongside, he proposed to commission A.
Paulauskas, a deputy Procurator General, to temporarily act as
the Procurator General. However, J. Razma, Chancellor of the
Seimas, preparing a respective draft resolution of the Seimas
on the basis of the decree of the President of the Republic,
instead of the name of A. Paulauskas, entered that of V.
Nikitinas. It was such a resolution of the Seimas that was
adopted on 25 February 1997. In this case the Seimas not only
exceeded its powers but restricted the right of legislative
initiative of the President of the Republic.
Under Part 1 of Article 68 of the Constitution, "the right
of legislative initiative in the Seimas shall belong to the
members of the Seimas, the President of the Republic, and the
Government". Under the Republic of Lithuania laws on the
Prosecutor's Office and on courts which were valid in the
moment of adoption of the disputed resolution, the right to
propose that the Seimas dismiss the Procurator General from his
post was vested in the President of the Republic. Conforming to
these legal norms, the President of the Republic issued Decree
No. 1206 of 17 February 1997. Alongside, he proposed as to what
official should temporarily act as the Procurator General.
The petitioner maintains that in the course of adoption of
the disputed Seimas resolution, laws were violated. Under
Article 11 of the Law on the Procurator's Office which was
valid then, the Procurator General was to be appointed by the
Seimas on the recommendation of the President of the Republic.
As the laws do not provide for a special procedure as to how a
person is to be appointed to temporarily act as the Procurator
General, thus, in the opinion of the petitioner, under common
legal norms, the same procedure had to be applied as in
appointment of the Procurator General. Therefore, the Seimas
was entitled to appoint a person to temporarily act as the
Procurator General only on the recommendation of the President
of the Republic but never on that of a Seimas member. No Seimas
resolution may replace norms of a Republic of Lithuania law.
As the Seimas approved such a disputed resolution, thus,
in the opinion of the petitioner, it contradicts the provisions
of Part 1 of Article 5, Part 1 of Article 68, and Part 1 of
Article 69 of the Constitution.
III
1. In the course of preparation of the case for judicial
investigation, the representative of the party concerned V.
Vaičaitis, a consultant at the Legal Division of the Seimas
Chancery, in its written explanation, mainly basing himself on
the historic method of legal act construction, noted that on 5
December 1996, the Seimas adopted the Law "On Amending Article
29 of the Law on the Provision of Information to the Public"
whereby a different procedure of formation of the RTL Council
was provided for than it had been established in the Law on the
Provision of Information to the Public which had been valid
before. In the explanatory note of respective draft laws the
purpose of the amendment was defined as follows: to diminish
political impact on the National Radio and Television of
Lithuania. This is confirmed by the deliberations which took
place in the Seimas after the draft law had been submitted. The
explanatory note also suggested that the provision be entered
that by respective amendments of laws "it is proposed that the
members of the Council which are delegated by the President of
the Republic be dismissed (by suspending their powers by a
decree of the President of the Republic in case of his
agreement)". During the adoption of this law, it became clear
that the procedure of implementation of this law is vague as
the Republic of Lithuania Law on the National Radio and
Television provided for concrete cases when the powers of the
elected members of the RTL Council were to cease. Therefore
there occurred thus termed internal collision of several laws.
On 10 December 1996, the President of the Republic issued
the Decree "On the Returning of the Law 'On Amending Article 29
of the Republic of Lithuania Law on the Provision of
Information to the Public' to the Seimas for Additional
Deliberation". In his decree, the President of the Republic
agreed in principle, however, with some reservations, with the
provisions of the law passed by the Seimas concerning amendment
of formation principles of the RTL Council. In deciding the
collision regarding already appointed members of the RTL
Council, he proposed to enter the provision into the said law,
stipulating that "after this law has gone into effect, the
powers of the RTL Council members who were appointed by the
President of the Republic of Lithuania and the Seimas of the
Republic of Lithuania shall cease". During the additional
deliberation upon the law referred back by the President of the
Republic, the Seimas, under the Constitution and the Statute of
the Seimas, might adopt only 2 decisions: either to approve or
not to approve the decree of the President of the Republic.
Still, the Seimas did not approve the decree of the President
of the Republic, however, it decided to take account of the
termination of powers of the RTL Council members as set forth
therein. This was done by passing the disputed law in the
wording whereof the proposal of the decree of the President of
the Republic was reiterated. The President of the Republic
signed the said law, and it went into effect on 14 December
1996 after it had been publicised in the official gazette
Valstybės žinios.
The representative of the party concerned affirmed that in
the process of law-making 2 chief agents are provided for by
the Constitution: the Seimas and the President of the Republic
(the Government, as well as 50,000 citizens of the Republic of
Lithuania, also have the right of legislative initiative). The
President of the Republic, who is Head of State under the
Constitution, participates in the process of law-making by
making use of the postponing veto right (Articles 71 and 72),
as well as by signing the laws enacted by the Seimas (Article
70). Such participation of 2 institutions in the process of
law-making ensures a broader democracy of adoption of a law as
a compromise reached after coordination of interests of various
social groups of society.
The representative of the party concerned indicated that,
interpreting the compliance of the disputed law with Part 4 of
Article 89 of the Constitution, one should note that the
President of the Republic did not recall the RTL Council
members appointed by his decree of 4 November 1996, as until
December 14 then in force Law on the National Radio and
Television of Lithuania did not permit him to do so. The
President of the Republic, however, expressed his view in
respect to the RTL Council members appointed by him in the
decree of 10 December 1996, as well as by signing the disputed
law. The party concerned is of opinion that this permits to
presume that the disputed law does not contradict Articles 5,
67, and 89 of the Constitution.
2. In the course of preparation of the case for judicial
investigation, P. Ancelis, a consultant at the Legal Division
of the Seimas Chancery, in his written explanation pointed out
that according to Article 70 of the Constitution, as well as
Article 17 of the Republic of Lithuania Law "On the Procedure
of Promulgation and Enforcement of Republic of Lithuania Laws
and Other Legal Acts", one is able rather concretely and
reasonably group the acts depending on their legal power when
they are publicised in the official gazette Valstybės žinios.
He draws a conclusion that the adoption of the disputed Seimas
resolution may not be linked with Articles 68 and 69 of the
Constitution, nor may it be likened to the procedure when, by
his decree, the President of the Republic makes use of the
legislative right by submitting to the Seimas respective draft
laws to deliberate upon.
The representative of the party concerned maintained that
the Constitution emphasises the supremacy of the Seimas in
respect to other powers, i.e. the President of the Republic and
the Government, as well as the Judiciary. The scope of powers
are limited by the Constitution, while it does not indicate any
procedure of appointing of the Procurator General. Part 2 of
Article 77 of the Constitution provides that the President of
the Republic shall perform all the duties which he or she is
charged with by the Constitution and laws. Thus, under then in
force norms of the Law on Courts and those of the Law on the
Procurator's Office, the President of the Republic was entitled
to propose that the Seimas dismiss the Procurator General, and
he accomplished his right by presenting the said decree. The
laws which were valid then did not regulate the procedure
whereby a person is commissioned to temporarily act as the
Procurator General at all. The Seimas, conforming to its powers
provided for by Item 5 of Article 67 of the Constitution (the
Seimas shall "form State institutions provided by law, and
shall appoint and dismiss their chief officers"), adopted a
grounded and legitimate decision. One should not base oneself
on common legal norms as Article 6 of the Constitution provides
that the Constitution shall be an integral and directly
applicable statute.
The representative of the party concerned also pointed out
that both the decree of the President of the Republic and the
draft of the disputed resolution prepared by the Chancellor of
the Seimas were presented to the Seimas. By Item 6 of Article 9
of the Statute of the Seimas a Seimas member is granted the
right "to prepare and present draft laws and other draft legal
acts to the Seimas for deliberation". In case of the legal
vacuum, the Seimas was entitled to adopt a different decision
than that proposed by the President of the Republic. One might
speak about the restriction of the powers of the President of
the Republic only in the case that, for example, instead of
approval or non-approval of the candidature for the post of the
Prime Minister, the Seimas appointed another person.
The supremacy of the Seimas in regulating appointment of
the Procurator General was established by the representative of
the party concerned by analysing the amendments of, and
supplements to, the Law on Courts and the Law on the
Procurator's Office which had been made of late years. He
pointed out that by these amendments and supplements, the
one-person right of the President of the Republic to appoint
the Procurator General was later changed by the Seimas
prerogative to appoint it on the recommendation of the
President of the Republic, while at present the President of
the Republic has no right at all to choose a candidature for
the Procurator General. The President of the Republic has
signed these laws with the latest amendments and has officially
promulgated them.
On the basis of these arguments, the representative of the
party concerned draws a conclusion that the disputed resolution
of the Seimas is in compliance with the provisions of Part 1 of
Article 5, Part 1 of Article 68, and Part 1 of Article 69 of
the Constitution.
IV
In the course of judicial investigation, the
representative of the petitioner virtually reiterated the
motives set out in the petition. The representative of the
petitioner requested to investigate additionally whether both
disputed legal acts were in compliance with Article 1 of the
Constitution, as, in his opinion, only in a democratic state
one power respects another one and does not interfere with the
functions discharged by the latter.
The representative of the petitioner also indicated that,
in deciding the problem of the substitution of the Procurator
General, one had to follow Chapter 32 of the Statute of the
Seimas which regulates deliberation upon the candidatures and
appointment of state officers, as well as the precedent when,
by his Decree No. 121, the President of the Republic
recommended that the Seimas approve a temporary Chairman of the
Board of the Lithuanian Bank to temporarily act as a Chairman
of the Board of the Lithuanian Bank even though the law did not
provide either as to who was entitled to submit the
candidature.
In the opinion of the petitioner, under Article 30 of the
Statute of the Seimas, only the Chairman of the Seimas is
entitled to present to the Seimas the candidatures for heads of
state institutions and their substitutes for approval providing
the Constitution and laws do not provide otherwise. Such a
right is not granted to Seimas members.
V
In the course of judicial investigation the representative
of the party concerned virtually reiterated the
counter-arguments set out in written explanations.
VI
In the course of preparation of the case for judicial
investigation, on 14 November 1997, an explanatory paper of A.
Meškauskas, Head of the Office of the President of the Republic
of Lithuania, was received. It is indicated therein that then
in force Law on the Procurator's Office did not establish any
procedure for appointment of a person to act temporarily as the
Procurator General, therefore he had to be appointed under the
same procedure as the Procurator General. In case of rejection
of the proposed candidature, the President of the Republic was
entitled to present another candidature to act temporarily as
the Procurator General for appointment. This right of the
President of the Republic has been annulled by the Seimas
decision. It is also maintained in the paper that the powers of
the RTL Council members might have been suspended only by the
person who had appointed them, i.e. the President of the
Republic.
The Constitutional Court
holds that:
The main principles of organisation and activities of the
Lithuanian State power are determined by the fundamental
provision of Article 1 of the Constitution, that "the State of
Lithuania shall be an independent and democratic republic", as
well as the aspiration for a law-governed state which is
entrenched in the preamble of the Constitution.
Part 1 of 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." The principle of separation of powers as
consolidated therein is important in judging over the request
of the petitioner whether the Seimas infringed upon the powers
of the President of the Republic by the disputed legal acts.
In its rulings of 26 October 1995 and 10 January 1998, as
well as in its decision of 13 November 1997, the Constitutional
Court noted that the principle of the separation of state
powers means that the legislative, executive and judicial
powers must be separated, sufficiently independent, however,
they must be balanced. Every institution of power is granted
competence corresponding to its purpose, and the particular
content whereof depends on the form of state governance.
The status of the supreme institutions of state power is,
first of all, grounded on the authorisations directly
consolidated in the Constitution: those of the Seimas are
entrenched in Article 67, those of the President-Article 84,
those of the Government-Article 94 of the Constitution. The
status of the Constitutional Court is consolidated in Chapter
8, while that of the Judiciary-in Chapter 9 of the
Constitution.
Other articles of the Constitution also contain directly
entrenched authorisations of the supreme institutions of state
power (for example, decisions concerning State loans and other
basic property liabilities of the State shall be adopted by the
Seimas (Part 1 of Article 128); the State Controller shall give
an account to the Seimas on the annual execution of the State
Budget (Part 2 of Article 134); the President of the Republic
decides in respective cases, in the period between sessions of
the Seimas, whether to give his consent to institute a legal
action against a judge (Part 2 of Article 114); the Chief
Commander of the armed forces shall be the President of the
Republic (Part 2 of Article 140); the Government appoints
representatives to supervise that the Constitution and the laws
are observed by the local governments (Part 2 of Article 123);
the Government shall prepare a draft budget of the State
(Article 130)).
In defining the functions and authorisations of the
supreme institutions of state power, the Constitution also
provides for their reciprocal control and balance, as well as
their partnership. For instance, the President of the Republic
is entitled to appoint the Prime Minister, however, he may
accomplish this right only after the assent of the Seimas (Item
6 of Article 67, Items 4 and 5 of Article 84, Part 1 of Article
92 of the Constitution); the Seimas shall appoint judges to and
the Chairperson of the Supreme Court (Item 10 of Article 67 of
the Constitution), however, for this the recommendation of the
President of the Republic is needed (Item 11 of Article 84 of
the Constitution); the Seimas establishes and abolishes
ministries of the Republic of Lithuania, however, for this the
recommendation of the Government is required (Item 8 of Article
67 of the Constitution).
A direct establishment of authorisations in the
Constitution means that one institution of state power may not
take over any authorisations from another institution, nor may
it pass or refuse them. Such authorisations may not be altered
or restricted by the law by establishing additional conditions
of their implementation. In case one wishes to alter or
restrict them, an amendment to the Constitution must be
adopted.
Along with the authorisations directly entrenched in the
Constitution, the supreme institutions of state power also have
those which are to be established by laws. For instance,
resorting to Item 10 of Article 84 of the Constitution, wherein
it is established that the President of the Republic shall
"appoint or dismiss, according to the established procedure,
state officers provided by law", one can judge about the
possibility of such authorisations pertaining to the President
of the Republic. In establishing such authorisations, one takes
into consideration the provisions and principles of the
Constitution which consolidate the nature of institutions of
state power, as well as the character of their interaction.
1. On the compliance of the Law "On Implementation of the
Law 'On Amending Article 29 of the Law on the Provision of
Information to the Public'" with the Constitution.
1.1. The Supreme Council-Reconstituting Seimas of the
Republic of Lithuania by the Resolution "On the Approval of the
Statute of the Radio and Television of Lithuania" of 10 May
1990 approved the Statute of the Radio and Television of
Lithuania. Article 1 of the said statute stipulated that the
Radio and Television of Lithuania shall be a state institution
which is accountable to the Supreme Council of the Republic of
Lithuania. Article 8 of the statute provided: "The Radio and
Television of Lithuania shall be directed by the Board and the
Director General that are appointed by the Supreme Council of
the Republic of Lithuania until the expiration of the powers of
the latter." By this norm the status and administration of the
RTL, as a state institution, was established. The RTL was
formed by the supreme institution of the state-the Supreme
Council-Reconstituting Seimas. Other items of this article of
the Statute consolidate the subordination of the RTL to, and
its dependence on, the Supreme Council-Reconstituting Seimas.
Thus the supervision over the activities of the RTL, as a state
institution, was also directly exercised by the supreme
institution of state power which had formed it.
Such former status and administration of the RTL was
changed in essence by Article 29 of the Law on the Provision of
Information to the Public which was adopted on 2 June 1996. It
was provided therein: "The Council shall be the highest
governing body of the National Radio and Television of
Lithuania, established for a period of 3 years and comprised of
13 individuals. 3 of the members shall be appointed by the
President of the Republic, 4-by the Seimas, 6-by drawing lots
by choosing 1 from the Lithuanian Periodical Press Publishers'
Association, Lithuanian Journalists' Union, Lithuanian
Cinematographers' Union, Lithuanian Theatre Union, Lithuanian
Composers' Union, Lithuanian Architects' Union [...] each."
Part 1 of Article 8 of the Law on the National Radio and
Television of Lithuania provided that the administrative bodies
of the RTL shall be the Council of the National Radio and
Television of Lithuania and its Administration. The RTL Council
is formed under the said procedure as established by Article 29
of the Law on the Provision of Information to the Public.
Conforming to the authorisations to the President of the
Republic as established by Article 29 of the Law on the
Provision of Information to the Public and Article 8 of the Law
on the National Radio and Television of Lithuania, by his
decree of 4 November 1996, the President of the Republic
appointed 3 members to the RTL Council. Basing itself on these
legal norms, by its resolution of 5 November 1996, the Seimas
appointed 4 members to the RTL Council. Under the procedure
established by the law, the other members of the RTL Council
were appointed, too. Thus, the administrative body of the RTL,
i.e. the Council, was formed.
On 5 December 1996, the Seimas of the new term of office
adopted the Law "On Amending Article 29 of the Law on the
Provision of Information to the Public" whereby a different
procedure of formation of the RTL Council was established.
According to it, 15 public and art creators' organisations were
to form the composition of the Council by delegating 1 member
each. Thus, there are grounds to assert that by establishing
such a procedure of formation of the RTL Council by this law,
one attempted to abolish any influence of state power
institutions or that of state officials on the RTL.
1.2. On 12 December 1996, the Seimas passed the Republic
of Lithuania Law "On the Amending and Supplementing of Article
8 of the Law on the National Radio and Television of
Lithuania". This law provided for a new legal basis for
recalling members of the Council from office. Item 5 of Part 4
of the said article stipulates that that the members of the RTL
Council may not be recalled from office until their term of
office has not expired save provided the legal basis of the
appointment of a Council member is changed. On the same day, by
the disputed law, the Seimas established that after the Law "On
Amending Article 29 of the Law on the Provision of Information
to the Public" of 5 December 1996 has come into force, the
powers of the members of the Council of the National Radio and
Television of Lithuania who were appointed by the President of
the Republic and the Seimas shall cease. The petitioner
maintains that by discontinuing the authorisations of the
Council members who had been appointed by the President, the
Seimas violated the powers of the President.
Item 5 of Article 67 of the Constitution stipulates that
the Seimas shall "form State institutions provided by law, and
shall appoint and dismiss their chief officers". In the legal
doctrine, the state institution is treated as a state office
through which state power is being accomplished. Thus, the
state institution is a constituent part of the mechanism by
means of which state functions are being implemented. State
functions are implemented through state officials-officers who
work in state institutions. The legal status of officials is
defined by special legal norms which establish procedures for
accepting for the civil service, the adherence to such
procedures, as well as the rights, duties and responsibilities,
and termination of service relations. One should note that
specific requirements are applied to officials, and, along with
that, respective guarantees are provided for them.
Upon adoption of the Law on the Provision of Information
to the Public, as well as the Law on the National Radio and
Television of Lithuania, the RTL lost the status of a state
institution. Part 1 of Article 8 of the latter law additionally
stipulates that the members of the Seimas, the Government, the
Commission of Radio and Television, as well as the persons who
are linked with radio and television stations by contract ties,
as well as those working at the RTL, may not be members of the
RTL Council. Thus, the RTL Council is not a constituent part of
state power. Nor is it a state institution under Item 5 of
Article 67 of the Constitution. Therefore the status of its
directing body-the Council-is not equivalent to that of a state
institution, while the legal situation of a Council member is
not equivalent to that of a state official or state officer.
Thus, the members of the RTL Council are not applied the norms
as to the termination of service relations, nor do they make
use of the guarantees established for state officers.
Taking account of the motives set forth, a conclusion is
to be drawn that the Seimas did not violate the constitutional
principle of separation of powers, therefore, the Law "On
Implementation of the Law 'On Amending Article 29 of the Law on
the Provision of Information to the Public'" is in compliance
with the Constitution.
2. On the compliance of the 25 February 1997 Seimas
Resolution "On Dismissing V. Nikitinas from the Post of the
Procurator General" with the Constitution.
2.1. The functions of procurators have been established by
Article 118 of Chapter 9, entitled The Court, of the
Constitution. Thus, procurators are treated therein as a
constituent part of the judiciary. Therefore, in implementing
the reform of the Procurator's Office, its functions and
structure were being changed. Even though the Constitution does
not particularly indicate as to by whom and under what
procedures procurators may be appointed and dismissed, however,
one is to assume that in this case the legislator is bound by
the peculiarities of formation of the judiciary.
In implementing these constitutional provisions, it was
established in Part 1 of Article 66 of the Law on Courts (the
wording of 20 October 1994): "The Procurator General shall be
appointed and dismissed by the Seimas of the Republic of
Lithuania on the recommendation of the President of the
Republic". Part 3 of Article 11 of the Law on the Procurator's
Office (the wording of 3 November 1994) prescribed: "The
Procurator General shall be appointed for the term of 7 years
and dismissed by the Seimas of the Republic of Lithuania on the
recommendation of the President of the Republic".
The Seimas, by its resolution of 21 December 1994,
conforming to Article 118 of the Constitution, as well as
taking into consideration the President of the Republic decree
of 15 December 1994, appointed V. Nikitinas Procurator General
of the Republic of Lithuania.
The President of Lithuania, by his decree of 17 February
1997, recommended that the Seimas dismiss V. Nikitinas from the
post of the Procurator General, and commission the deputy
Procurator General A. Paulauskas to temporarily act as the
Procurator General of the Republic of Lithuania until a new
Procurator General is appointed.
By its resolution of 25 February 1997, the Seimas
dismissed V. Nikitinas from the post of the Procurator General
(Article 1), and commissioned him to temporarily act as the
Procurator General until a new Procurator General is appointed
(Article 2). The petitioner contends that it was this part
(Article 2) of the legal act whereby the prerogative of the
President of the Republic to recommend a person to act as the
Procurator General was violated.
2.2. One of the arguments of the petitioner is that the
Seimas has restricted the right of legislative initiative at
the Seimas pertaining to the President of the Republic.
Part 1 of Article 69 of the Constitution provides: "Laws
shall be enacted in the Seimas in accordance with the procedure
established by law." These procedures are regulated by the
Statute of the Seimas which has the force of law, and,
particularly, by Part V thereof which is entitled The Procedure
of Law-making. This part of the Statute particularises the
right of the subjects (Seimas members, the President of the
Republic, the Government, 50,000 citizens who have the right to
vote) who are established by Article 68 of the Constitution to
the right of legislative initiative to submit draft legal acts.
The right of legislative initiative is equal to its every
subject, and it is being implemented by submitting a concrete
draft law to the parliament, or by formulating in writing a new
fundamental idea concerning law-making. After an appropriate
subject has submitted a draft law, the process of law-making
begins. Then a duty occurs for the legislative institution-the
Seimas-to begin to deliberate about the presented draft law or
the idea of the project of the law. After this, the other parts
of the stages of the legislation process as provided for in the
Statute ensue.
According to the doctrine, as well as the content of the
norms of the Statute of the Seimas, the right of legislative
initiative is linked with creative activities of law but not
with appointment of state officials. Thus, in this respect, the
Seimas did not violate the right of legislative initiative of
the President of the Republic. The President of the Republic,
by recommending a person to temporarily act as the Procurator
General, was accomplishing not his right of legislative
initiative but another one-to present candidatures of state
officials to the Seimas.
2.3. An analysis of the constitutional norms permits to
conclude that when officials are being appointed, it is always
indicated, as a rule, as to what subject is entitled to present
candidatures. For instance, Article 84 of the Constitution
provides that the President of the Republic shall propose to
the Seimas candidatures for Supreme Court judges,
Constitutional Court judges, the state Controller, the
Chairperson of the Board of the Bank of Lithuania, etc. In all
other cases the subjects, entitled to propose candidatures for
the posts of officials that are to be appointed, are indicated
in laws. The fact that appointment of state officials is a
special parliamentary procedure is consolidated in Chapter 32
of the Statute of the Seimas. Therein possible subjects who are
entitled to propose candidatures for the state official are
also provided for. Part 1 of Article 203 of the Statute
prescribes that the persons "who may present candidatures for
these posts shall be determined by the Constitution and
respective laws".
As it has been mentioned in the present ruling of the
Constitutional Court, the Constitution does not particularly
indicate as to who may submit candidatures for the Procurator
General. At the time of adoption of the disputed resolution,
the exclusive right of the President of the Republic to
recommend the Seimas to appoint or dismiss the Procurator
General was entrenched in both the Law on Courts, as well as
the Law on the Procurator's Office.
Until the law is valid, it is mandatory for everyone,
including the legislator. In its ruling of 8 November 1993, the
Constitutional Court held that the self-dependence of the
Seimas is within its competence established in the Constitution
as well as is limited by its duty to act in compliance with the
Constitution and valid laws. To observe their requirements, as
well as those of the Statute of the Seimas, which has the force
of law, is the constitutional duty of the Seimas and every
Seimas member.
When one assesses the lawfulness of the disputed Seimas
resolution, the fact is of essential importance whether the
appointment of a state official to act temporarily should be
accomplished under the same procedure as his appointment to act
permanently. The representative of the party concerned-the
Seimas-maintains in the case at issue, that the procedure of
appointment to temporarily act in a certain position is not
regulated by laws. Therefore, he concludes that in case of the
absence of legal regulation, the Seimas was entitled to adopt a
free decision.
The Constitutional Court notes that these arguments are
not grounded ones. The appointment to temporarily act as the
Procurator General and the appointment to permanently act as
the Procurator General are tightly interconnected. The adoption
of a person to temporarily act as the Procurator General meant
that he acquired all the prerogatives of the Procurator
General, including procedural ones. Thus a conclusion is to be
drawn that the same subject had to recommend that a certain
person be appointed to temporarily act as the Procurator
General, who was entitled to recommend that the Seimas approve
a certain person Procurator General.
Under then valid Law on Courts and Law on the Procurator's
Office, the President of the Republic was entitled to submit
candidatures for the Procurator General to the Seimas. Thus,
the Seimas could appoint a person to act as the Procurator
General only in case there existed a recommendation of the
President of the Republic. By his decree the President proposed
that a respective person should act as the Procurator General.
The Seimas had to deliberate upon the said candidature and was
entitled to either approve or reject him. However, the Seimas,
on the grounds of a motion of a Seimas member, appointed
another person to act as the Procurator General, thereby
violating the powers of the President of the Republic which had
been established by the aforesaid laws.
On the grounds of the set forth above, a conclusion is to
be drawn that Item 2 of the Seimas Resolution "On Dismissing V.
Nikitinas from the Post of the Procurator General" contradicts
Part 1 of Article 5 and Part 4 of Article 89 of the
Constitution.
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:
1. To recognise that the Law "On Implementation of the Law
'On Amending Article 29 of the Republic of Lithuania Law on the
Provision of Information to the Public'" is in compliance with
the Constitution of the Republic of Lithuania.
2. To recognise that Item 2 of the 25 February 1997
Republic of Lithuania Seimas Resolution "On Dismissing V.
Nikitinas from the Post of the Procurator General" contradicts
Part 1 of Article 5 and Part 4 of Article 89 of 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.