Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the 1 June 1998 Government of
the Republic of Lithuania Resolution No. 647 "On
the Consent for Carrying Out Public Purchase by
Way of Closed Competitive Tender and the Consent
for Allocation of Means" with the Constitution of
the Republic of Lithuania and Article 8 of the Law
on the Government of the Republic of Lithuania
Vilnius, 20 April 1999
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner-a group of Seimas
members-Česlovas Juršėnas, a Seimas member, and Vytenis Povilas
Andriukaitis, a Seimas member,
the representative of the party concerned-Ramutė Ruškytė,
a representative of the Government, Head of the Division for
Legal Affairs and Law and Order at the Chancery of the
Government,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 30
March 1999 in its public hearing conducted the investigation of
Case No. 13/98 subsequent to the petition submitted to the
Court by the petitioner-a group of Seimas members-requesting to
investigate if the 1 June 1998 Government of the Republic of
Lithuania Resolution No. 647 "On the Consent for Carrying Out
Public Purchase by Way of Closed Competitive Tender and the
Consent for Allocation of Means" was in compliance with the
Constitution of the Republic of Lithuania and Article 8 of the
Law on the Government of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 1 June 1998 the Government adopted Resolution No. 647
"On the Consent for Carrying Out Public Purchase by Way of
Closed Competitive Tender and the Consent for Allocation of
Means" (Official Gazette Valstybės žinios, 1998, No. 52-1427).
The petitioner-a group of Seimas members-requests to
investigate whether the said resolution is in compliance with
Part 2 of Article 101 of the Constitution and Part 4 of Article
8 of the Law on the Government.
II
The request of the petitioner is based on the following
arguments.
On 27 November 1996, after the 1996 Seimas elections
Algirdas Brazauskas, the President of the Republic, submitted
to the Seimas the candidature of Gediminas Vagnorius for the
office of the Prime Minister for consideration. On 28 November
1996 the Seimas approved of this candidature. On the same day
the President of the Republic appointed G. Vagnorius Prime
Minister and commissioned him to form the Government. On 4
December 1996, the President confirmed the Government where
there were 17 ministers.
On 10 December 1996 the Seimas approved of the Programme
of the Government submitted by the Prime Minster. On the same
day the members of the Government were sworn in at the Seimas.
After the 1997 elections of the President of the Republic,
the Government headed by G. Vagnorius returned its powers to
the President of the Republic Valdas Adamkus. In the opinion of
the petitioner, on 10 March 1998 the Seimas anew approved of
the candidature of G. Vagnorius submitted by the President of
the Republic, therefore this Government and that implementing
its programme approved by the Seimas on 10 December 1996 must
be held to be the same. According to the petitioner, however,
in 1996-1998 not less than 9 ministers, i.e. more than half of
all the ministers, were changed in the Government. Taking
account of this, the petitioner draws a conclusion that the
Government, as provided for by Part 2 of Article 101 of the
Constitution and Part 4 of Article 8 of the Law on the
Government, had to be re-invested with authority by the Seimas.
For this purpose a new programme of the Government had to be
submitted to the Seimas for approval. By the Statute of the
Seimas, the Government had to do this within 7 days, however,
not any corresponding document was registered at the
secretariat of the Seimas. Thus, the petitioner believes that
from 31 May 1998 the present Government is to be held to be
lacking the authorisation by the Seimas, and its acts are to be
assessed as unlawful.
III
In the course of the preparation of the case for the
judicial hearing, the representative of the party concerned R.
Ruškytė noted that after the 1997 elections of the President of
the Republic the Government had been approved in its all
composition, all necessary procedures were performed which
meant that the Government was "anew empowered to exercise its
functions" as pointed out in Item 3.3 of the stating part of
the Constitutional Court Ruling "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" of 10 January 1998. In its 17
December 1998 Decision "On the construction of the 10 January
1998 ruling of the Constitutional Court of the Republic of
Lithuania" the Constitutional Court held that the statement
"the Government is anew empowered to exercise its functions"
means that a new period of the powers of the Government begins,
therefore the change of ministers in the Government is to be
calculated from the beginning of this period.
The representative of the party concerned also explained
that after the President of the Republic approved the
composition of the Government submitted by the Prime Minister,
until the date of 31 May 1998 as indicated by the petitioner,
only the minister of internal affairs had been changed. Thus,
until 31 May 1998 the Government did not have to be re-invested
with authority by the Seimas and all the acts adopted by the
Government, including that disputed by the petitioner, are
lawful and are in compliance with the Constitution and the Law
on the Government.
IV
During the judicial hearing the representative of the
petitioner Č. Juršėnas explained the position of the petitioner
as for the wording of Part 2 of Article 101 of the Constitution
whereby "the Government must be re-invested with authority by
the Seimas". Part 2 of Article 101 of the Constitution must be
linked with Part 5 of Article 92 of the Constitution which
prescribes: "A new Government shall be empowered to act after
the Seimas approves its programme by majority vote of the
Seimas members participating in the sitting." In the opinion of
the petitioner, the programme of the Government must be
submitted to the Seimas not only after the Seimas elections but
also after the President of the Republic elections, as a legal
form of empowerment is voting in the Seimas by approving of the
programme of the Government.
The representative of the petitioner also expressed his
opinion as to how changes of ministers are to be calculated.
Individual articles of the Constitution mention particular
ministers but not ministers in general. Every change of the
area headed by a minister, even though the personality of the
minister remains the same, means that a minister is changed in
the Government. Therefore the petitioner draws a conclusion
that until 1 May 1998, when the new wording of the Law on the
Government came into force, more than half of the ministers had
been changed in the Government.
In the judicial hearing the representative of the
petitioner V. P. Andriukaitis explained that changes of
ministers in the Government must be linked with the
administration area of the ministry. Establishing, abolishing
or reorganising ministries, the Seimas, alongside, forms a new
area of administration which should be headed by a minister.
One ought to follow this criterion in calculating changes of
ministers. In case when a member of the Government, no matter
whether he was previously appointed or a new one, performs new
functions, it is to be presumed that this is a new function of
the minister and the minister himself is a new one.
V
In the judicial hearing the representative of the party
concerned, disputing the opinion of the petitioner according to
which after the President of the Republic elections the
programme of the Government must be anew confirmed, explained
that the Seimas, by approving of the programme of the
Government, expresses its confidence in the Government for the
whole term of its (i.e. the Seimas) powers. Therefore, until
the present Seimas performs its functions the programme
submitted by the Prime Minister for the Seimas as well as the
10 December 1996 Seimas Resolution whereby the Programme of the
Government was approved of remains in force.
The representative of the party concerned also noted that
the President of the Republic who was elected during the 1997
elections, before confirming a new composition of the
Government, dismissed all the ministers who were temporarily
performing their functions. It is evident that in such a case 7
ministers from the list of ministers presented by the
petitioner did not have to be re-invested with authority by the
Seimas. Besides, the petitioner also entered the ministers of
abolished ministries into the list even though those ministers
were merely provisionally performing their functions, too. The
representative of the party concerned is of the opinion that
only in cases when another minister replaces a minister who is
empowered to act is it possible to recognise that the minister
was changed.
The Constitutional Court
holds that:
1. On 1 June 1998 the Government adopted Resolution No.
647 "On the Consent for Carrying Out Public Purchase by Way of
Closed Competitive Tender and the Consent for Allocation of
Means". Requesting to investigate whether this resolution is in
compliance with Part 2 of Article 101 of the Constitution and
Part 4 of Article 8 of the Law on the Government, the
petitioner maintains that from 10 December 1996 until 31 May
1998 not less than 9 ministers were changed in the Government.
The petitioner pointed out various cases of changing of the
composition of the Government: replacement of one minister by
another; dismissal of a minister and his appointment as a
minister of a newly established ministry; dismissal of a
minister due to abolition of the ministry; changing the duties
of a minister by appointing him to head a reorganised ministry
(e.g., one established instead of two former ministries). In
the opinion of the petitioner, all these cases must be held
"change of ministers" under the meaning of Part 2 of Article
101 of the Constitution. Therefore, after more than half of the
members of the Government headed by G. Vagnorius had changed,
one is to hold that from 31 May 1998 the Government no longer
enjoys the empowerment by the Seimas.
The petitioner does not dispute the Government resolution
as for its content, scope of regulation or the form, therefore
the Constitutional Court will investigate the compliance of the
said resolution with the Constitution and the Law on the
Government from the aspect indicated by the petitioner, i.e.
whether the Government, adopting it, was enjoying the
empowerment by the Seimas.
2. During the time period pointed out by the petitioner
the laws differently regulated as to what might be considered
changing of ministers. Under the previous, i.e. 19 May 1994
wording of the Law on the Government, its Article 9 prescribed:
"When more than half of the Ministers, including those who have
resigned and those who have been removed from office, as well
as the Ministers of newly founded or reorganised Ministries,
are changed, the Government must be re-invested with authority
by the Seimas [...]." Part 4 of Article 8 of the new wording 1
May 1998 Law on the Government provides that when more than
half of the ministers are changed, the Government must be
re-invested with the authority by the Seimas. This norm of the
law repeats the text of Part 2 of Article 101 of the
Constitution, however, as to what is meant by changing of
ministers is not revealed.
3. Part 2 of Article 101 of the Constitution provides:
"When more than half of the Ministers are changed, the
Government must be re-invested with authority by the Seimas.
Otherwise, the Government must resign."
Article 5 of the Constitution prescribes that in
Lithuania, the powers of the State shall be exercised by the
Seimas, the President of the Republic and the Government, and
the Judiciary. This provision of the Constitution provides
grounds for the separation and balance of the powers of the
State. The Government is a joint State governance institution
of general competence. By Article 91 of the Constitution, the
Government of the Republic of Lithuania shall consist of the
Prime Minister and Ministers. The Prime Minister shall, with
the approval of the Seimas, be appointed or dismissed by the
President of the Republic (Part 1 of Article 92 of the
Constitution). Under Part 3 of Article 92 of the Constitution,
the Prime Minister, within 15 days of being appointed, shall
present the Government which he or she has formed and which has
been approved by the President of the Republic to the Seimas
and shall submit the programme of its activities to the Seimas
for consideration.
The personal composition of the Government is formed by
the Prime Minister and the President of the Republic. However,
the mere confirmation of the composition of the Government is
not enough so that the Government might begin to act. The
Government must have the confidence of the Seimas. Therefore
Part 5 of Article 92 of the Constitution provides that "a new
Government shall be empowered to act after the Seimas approves
of its programme by majority vote of the Seimas members
participating in the sitting". Approval of the programme of the
Government means that the Government is empowered to implement
its programme provisions.
The Seimas not only empowers the Government to act but
also, conforming to Item 9 of Article 67 of the Constitution,
supervises the activities of the Government. For instance,
under Part 1 of Article 101 of the Constitution, upon the
request of the Seimas, the Government or individual Ministers
must give an account of their activities to the Seimas. The
Seimas also may by the majority of all the Seimas members
express a lack of confidence in the Government in a secret
ballot vote (Item 2 of Part 3 of Article 101 of the
Constitution). The Constitution also provides for other ways as
to how the Seimas might carry out the supervision of the
Government.
The composition of the Government may change due to
various reasons. Under Part 2 of Article 101 of the
Constitution, when more than half of the Ministers are changed,
the Government must be re-invested with authority by the
Seimas, otherwise, the Government must resign. The institution
of re-investment of the Government with new authority is one of
the forms of the supervision of the Government by the
parliament. Applying it, the Seimas can check whether, after
changing of more than half of the ministers, the programme of
the Government which was approved of by the Seimas is still
carried out. The procedure for the new empowerment is regulated
by the Statute of the Seimas.
Such constitutional regulation of the powers of
institutions of authority and their interrelations in the
course of the formation of the Government and its re-investment
with authority reflects the principle of separation and balance
of State powers which is established in the Constitution.
4. By establishing as to what is to be considered a change
of ministers under Part 2 of Article 101 of the Constitution,
the circumstance is of essential importance that the Government
is a jointly acting institution which is jointly accountable
for its joint activities to the Seimas. Therefore, by the
Constitution the beginning of the powers of the Government is
linked with the approval by the Seimas of its programme but not
the personal composition of the Government. Considering whether
to approve of the programme of the Government, the Seimas does
not discuss the issues of the personal composition of the
Government as appointment of ministers is the prerogative of
the Prime Minister and the President of the Republic. Voting
for the approval of the programme of the Government, the Seimas
expresses its consent that the Government administer the
affairs of this country in the manner as provided for by the
programme. Until the consent of the Seimas to the programme of
the Government, it is not empowered to act.
As mentioned, the Government is comprised of the Prime
Minister and ministers. A minister heads the respective
ministry, he is accountable to the Seimas and the President of
the Republic and directly subordinate to the Prime Minister.
Even though the ministers head ministries and are responsible
for individual areas of administration, however the common
affairs of State administration are resolved by the Government
at its sittings by issuing directives which must be passed by a
majority vote of all members of the Government (Part 1 of
Article 95 of the Constitution).
On the grounds of systematic interpretation of the said
provisions of the Constitution, it is possible to draw a
conclusion that by approval of the programme of the Government
whereby the Government is empowered to act, the principle of
the confidence in the Government in corpore by the Seimas is
established. Changing of the area administered by a minister is
important from the aspect of the responsibility of the
minister. From the standpoint of the interrelations of the
Government in corpore and the Seimas not the change of
individual ministers in the Government (in cases when a member
of that Government is appointed to head another ministry etc.)
is important but the fact whether due to such changes more than
half of the new ministers appear in the Government. Then the
Seimas has a constitutional basis to check whether the
programme of the Government is still carried out which the
Seimas previously approved of. Therefore, in the opinion of the
Constitutional Court, the provision of Part 2 of Article 101 of
the Constitution relating to change of ministers is to be
understood that a new person who is not a member of that
Government is appointed either instead of a dismissed head of a
ministry or as the head of a newly established ministry.
In deciding whether more than half of the ministers were
changed in the Government, it is also very important to
establish as to what is the number of the ministers from which
their changing must be calculated. In such a case one has to
take account of the fact that under Part 1 of Article 98 of the
Constitution ministers shall head their respective ministries.
From this a conclusion is to be drawn that the number of
ministers is determined by the number of ministries which is
established by the Law on the Government.
5. The petitioner, disputing the said Government
resolution in the case at issue, pointed out the change of
ministers in the Government during the term from 10 December
1996 till 31 May 1998.
Assessing changing of ministers during the aforesaid term,
one has to note that this term is not continuous. It must be
analysed by taking account of the fact that in 1997 the
elections of the President of the Republic took place after
which the Government returned its powers to the President of
the Republic. Therefore one must make distinction between two
phases of this term: the first one includes the changing of
ministers until the new empowerment of the Government to act
after the elections of the President of the Republic, while the
second one includes those after the Government was anew
empowered to act.
5.1. The Constitutional Court held in Item 3.3 of the
stating part of its Ruling "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" of 10 January 1998 that the
returning of powers procedure provides the President of the
Republic with the opportunity to check whether the Seimas
remains to be confident in the Government. Following the
established procedure, the President of the Republic submits
the candidature of the Prime Minister of the Government that
has returned its powers to the Seimas for consideration. Upon
the consent of the Seimas to the candidature of the Prime
Minister and upon appointment of the Prime Minister by the
President of the Republic and upon approval of the composition
of the Government submitted by the Prime Minister, it is
recognised that the Government is anew empowered to exercise
its functions, unless more than half of the ministers have been
changed.
Therefore, taking account of the interpretation of the
provision of Part 2 of Article 101 of the Constitution relating
to changing of ministers as set forth in the present ruling, it
is to be concluded that from 4 December 1996 until the new
empowerment of the Government after the elections of the
President of the Republic more than half of the ministers were
not changed in the Government.
5.2. After the 1997 elections of the President of the
Republic the Government returned its powers to the newly
elected President of the Republic. By his decree of 25 March
1998, the President of the Republic, conforming to Item 4 of
Article 84 of the Constitution and taking account of the
recommendation of the Prime Minister, confirmed the respective
composition of the Government of the Republic of Lithuania.
In its 17 December 1998 Decision "On the construction of
the 10 January 1998 ruling of the Constitutional Court of the
Republic of Lithuania" the Constitutional Court held that after
the elections of the President of the Republic, upon the
consent of the Seimas to the candidature, nominated by the
President of the Republic, of the Prime Minister of the
Government which returned its powers, upon the appointment of
the Prime Minister by the President of the Republic, and upon
the approval of the composition of the Government submitted by
the Prime Minister, unless more than half of the ministers have
been changed, it is recognised that a new period of powers of
the Government begins, therefore the change of ministers in the
Government is to be calculated from the beginning of this
period.
Conforming to the interpretation of the provision of Part
2 of Article 101 of the Constitution relating to change of
ministers which was set forth in the present ruling, it is
possible to assert that from the new empowerment of the
Government until the date pointed out by the petitioner, i.e.
31 May 1998, more than half of the ministers were not changed
in the Government.
Taking account of the arguments set forth in this ruling,
a conclusion is to be drawn that the 1 June 1998 Government
Resolution No. 647 "On the Consent for Carrying Out Public
Purchase by Way of Closed Competitive Tender and the Consent
for Allocation of Means" is in compliance with Part 2 of
Article 101 of the Constitution and Part 4 of Article 8 of the
Law on the Government.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that the 1 June 1998 Government of the
Republic of Lithuania Resolution No. 647 "On the Consent for
Carrying Out Public Purchase by Way of Closed Competitive
Tender and the Consent for Allocation of Means" is in
compliance with the Constitution of the Republic of Lithuania
and Part 4 of Article 8 of the Law on the Government 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.