Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Item 4 of Article 10 of the
Republic of Lithuania Law on the Approval of the
Financial Indices of the 1998 Budget of the State
and Those of the Budgets of Local Governments,
Item 2 of Government of the Republic of Lithuania
Resolution No. 105 "On the Reorganisation of the
Department for Standardisation of Lithuania Under
the Ministry of Public Administration Reforms and
Local Government Affairs" of 27 January 1998, Item
2 of Government of the Republic of Lithuania
Resolution No. 117 "On the Transfer of the Right
of the Founder of the Lithuanian Zoological
Garden" of 30 January 1998, and Item 3 of
Government of the Republic of Lithuania Resolution
No. 366 "On the Transfer of Certain Functions of
the Ministry of Agriculture and Forestry to the
Ministry of Environmental Protection and on the
Establishment of the Department for Forests and
Protected Territories Under the Ministry of
Environmental Protection" of 30 March 1998 with
the Constitution of the Republic of Lithuania
Vilnius, 9 July 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 representative of the petitioner-a group of the
members of the Seimas of the Republic of Lithuania-Česlovas
Juršėnas, a Seimas member,
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 28
June 1999 in its public hearing conducted the investigation of
Case No. 18/98 subsequent to the petition submitted to the
Court by the petitioner-a group of Seimas members-requesting to
investigate if Item 4 of Article 10 of the Republic of
Lithuania Law on the Approval of the Financial Indices of the
1998 Budget of the State and Those of the Budgets of Local
Governments, Item 2 of Government of the Republic of Lithuania
Resolution No. 105 of 27 January 1998, Item 2 of Government of
the Republic of Lithuania Resolution No. 117 of 30 January
1998, and Item 3 of Government of the Republic of Lithuania
Resolution No. 366 of 30 March 1998 were in compliance with
Articles 5, 94 and 132 of the Constitution of the Republic of
Lithuania.
The Constitutional Court
has established:
I
On 2 December 1997, the Seimas adopted the Republic of
Lithuania Law on the Approval of the Financial Indices of the
1998 Budget of the State and Those of the Budgets of Local
Governments (Official Gazette Valstybės žinios, 1997, No.
114-2869, 1998, No. 111-3059; hereinafter referred to as the
Law). Item 4 of Article 10 of the said law provides that the
Government or its authorised institution shall be granted the
right "respectively to change the approved appropriations
following re-assignment of certain functions of ministries,
counties, departments and state services".
Enforcing the Law, the Government adopted several
resolutions: (1) Resolution No. 105 "On the Reorganisation of
the Department for Standardisation of Lithuania Under the
Ministry of Public Administration Reforms and Local Government
Affairs" of 27 January 1998 (Official Gazette Valstybės žinios,
1998, No. 12-276), by Item 2 whereof it commissioned the
Ministry of Finance to "decrease the appropriations approved
for the Department for Standardisation of Lithuania from the
1998 budget for routine spending and reapportion these
appropriations to the State Metrological Service under the
Ministry of Administration Reforms and Local Government Affairs
and the National Accreditation Bureau under the Ministry of
Administration Reforms and Local Government Affairs"; (2)
Resolution No. 117 "On the Transfer of the Right of the Founder
of the Lithuanian Zoological Garden" of 30 January 1998
(Official Gazette Valstybės žinios, 1998, No. 13-307) by Item 2
whereof it commissioned the Ministry of Finance "to specify,
without increasing the general amount of the budget of the
State of the Republic of Lithuania, the appropriations approved
in the 1998 budget of the State of the Republic of Lithuania
for the Ministry of Environmental Protection and the
Administration of the Chief of Kaunas county under the
inter-coordinated planned indices"; (3) Resolution No. 366 "On
the Transfer of Certain Functions of the Ministry of
Agriculture and Forestry to the Ministry of Environmental
Protection and on the Establishment of the Department for
Forests and Protected Territories Under the Ministry of
Environmental Protection" of 30 March 1998 (Official Gazette
Valstybės žinios, 1998, No. 35-939, No. 35-942), by Item 3
whereof it commissioned the Ministry of Finance to "transfer
corresponding budgetary appropriations from the Ministry of
Agriculture and Forestry to the Ministry of Environmental
Protection".
A group of Seimas members appealed to the Constitutional
Court with a petition requesting to investigate whether Item 4
of Article 10 of the Republic of Lithuania Law on the Approval
of the Financial Indices of the 1998 Budget of the State and
Those of the Budgets of Local Governments, as well as the
aforesaid provisions of the governmental resolutions, was in
compliance with Articles 5, 94 and 132 of the Constitution.
II
The request of the petitioner is grounded on the following
arguments.
By Item 4 of Article 10 of the adopted Law the Seimas
granted the right to the Government or its authorised
institution in the course of its maintenance of the national
budget "respectively to change the approved appropriations
following re-assignment of certain functions of ministries,
counties, departments and state services". As particular
appropriations and their particular managers are confirmed by
the budget law, therefore, in the opinion of the petitioner,
the Seimas has delegated part of its rights "to the Government
or its authorised institution", thus this provision of the Law
contradicts Part 2 of Article 132 of the Constitution.
The petition draws a conclusion that the Constitution
clearly establishes the principle of the separation of powers
in the area of the budget and separates the functions of
legislative and executive powers. Neither does the Constitution
provide for any prerogatives of the Seimas to transfer
permanently or temporarily its certain rights to the
Government.
The petitioner points out that the Government conforming
to the defective provision of the disputed Law, by the
resolutions of 27 January 1998, 30 January 1998, and 30 March
1998, commissioned the Ministry of Finance to reapportion the
budgetary appropriations.
On the grounds of this the petitioner believes that the
said items of the aforementioned legal acts contradict Articles
5, 94 and 132 of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing a written explanation of the
representatives of the party concerned Assoc. Prof. Dr. A.
Marcijonas, a consultant to the Legal Department of the
Chancery of the Seimas, and E. Žilevičius, Vice-Minister of
Finance, was received. They contend that under the Constitution
and the Republic of Lithuania Law on Budgeting, the Budget of
the State is approved by law conforming to the indices pointed
out in the Law on Budgeting. The budget is maintained by the
Government. The sum of general expenditures and its purpose is
approved by the law and remained unchanged.
Granting the right to the Government to change the
approved appropriations, the Seimas did not transfer its
exclusive right to change the budget of the State but merely
established additional powers for the Government in the area of
the maintenance of the budget of the State, i.e. respectively
to reapportion the means among the managers of budgetary
appropriations without exceeding the appropriations designated
for financing some or other functions of governance and among
which, in the interests of administration reform, corresponding
administration functions have been redistributed and for the
financing whereof the Seimas has approved budgetary
appropriations.
The right of the Government to reapportion the
appropriations is more likely to be held as a technical rule
creating conditions to utilise the means of budget of the State
in a more effective and faster way for the purpose of
implementation of administration reform without exceeding the
sum of appropriations and those approved by the Seimas which
were designated for the maintenance of individual functions of
administration.
Conforming to the provisions of Article 94 of the
Constitution and the Law on the Government of the Republic of
Lithuania, the Government adopted the disputed resolutions
whereby it reapportioned the budgetary appropriations for
individual institutions, taking account of the change of their
functions. Therefore, in the opinion of the representatives of
the party concerned, neither Item 4 of Article 10 of the Law
nor respective items of the disputed resolutions of the
Government contradict Articles 5, 94 and 132 of the
Constitution.
IV
In the course of the preparation of the case for judicial
investigation, written explanations of the specialists-Assoc.
Prof. Dr. P. Puzinauskas who works at the Department of Finance
and Credit at the Faculty of Economics of Vilnius University,
A. Stankaitienė, Head of the Monetary Markets Division of the
Bank of Lithuania, and J. Kabašinskas, an auditor of the audit
partnership J. Kabašinskas and Partners-were received wherein
it is maintained that the disputed items of the legal acts
contradict the Constitution.
On the grounds of Articles 131 and 132 of the Constitution
and an analysis of the content of the Law on Budgeting, P.
Puzinauskas pointed out in his explanations that the laws which
clearly distinguish the functions of the Seimas and the
Government do not provide for an opportunity for the Seimas to
transfer its prerogatives in the area of the budget to the
Government.
A. Stankaitienė pointed out in her explanation that the
Government, implementing the budget of the State of a
particular year, has certain rights which are granted to it by
the law approving the budget of the State of respective year.
After the finances of one institution have been transferred to
another institution, even though the overall sum of the
expenditures of the budget of the State remains the same, the
size of expenditures for individual managers of appropriations
may either increase or decrease. This, in its turn, contradicts
Article 131 of the Constitution, which stipulates that
"expenditures established by law may not be reduced as long as
said laws are not amended".
The explanation of J. Kabašinskas draws one's attention to
the fact that the Law grants the right to the Government (or
its authorised institution) "respectively to change the
approved appropriations following re-assignment of certain
functions of ministries, counties, departments and state
services" (Item 4 of Article 10 of the Law). On the grounds of
the granted right, in 1998 the Government commissioned the
Ministry of Finance to reapportion the budgetary
appropriations. Due to this reapportionment the confirmed
budget data were specified once again without amending the Law.
Not only the size (sums) provided for in the appendices to the
Law but also the sums among the appendices had to be changed as
the result of the amendments made by the Government. Part 2 of
Article 131 of the Constitution provides: "During the budget
year the Seimas may change the budget. It shall be changed
according to the same procedure by which it was drafted,
adopted and approved." Thus only the Seimas may make amendments
on the grounds of the drafts submitted by the Government in
pursuance of Article 94 of the Constitution, therefore Item 4
of Article 10 of the Law, Item 2 of Government Resolution No.
105 of 27 January 1998, Item 2 of Government Resolution No. 117
of 30 January 1998, and Item 3 of Government Resolution No. 366
of 30 March 1998 contradict Articles 5, 94 and 132 of the
Constitution.
V
During the Constitutional Court hearing Č. Juršėnas,
representative of the group of Seimas members, a Seimas member,
virtually reiterated the arguments set forth in the petition.
VI
The specialists spoke at the Constitutional Court hearing:
Assoc. Prof. Dr. P. Puzinauskas who works at the Department of
Finance and Credit at the Faculty of Economics of Vilnius
University, and J. Kabašinskas, an auditor of the audit
partnership J. Kabašinskas and Partners. They reiterated their
arguments set forth in writing concerning the rights of the
Seimas and the Government in the area of the budget.
The Constitutional Court
holds that:
I
On the compliance of Item 4 of Article 10 of the of the
Republic of Lithuania Law on the Approval of the Financial
Indices of the 1998 Budget of the State and Those of the
Budgets of Local Governments with Articles 5, 94 and 132 of the
Constitution.
1. On 2 December 1997 the Seimas adopted the Republic of
Lithuania Law on the Approval of the Financial Indices of the
1998 Budget of the State and Those of the Budgets of Local
Governments. Article 10 thereof defined the rights of the
Government in the area of budget maintenance. This article
provides: "To grant the right to the Government of the Republic
of Lithuania or its authorised institution:
<
> 4) respectively to change the approved appropriations
following re-assignment of certain functions of ministries,
counties, departments and state services."
The petitioner maintains that Item 4 of Article 10 of the
Law contradicts Articles 5, 94 and 132 of the Constitution.
Reviewing this request, the Constitutional Court is
deciding the question whether the Seimas, after it has provided
for respective appropriations to their managers in the Law, by
the same Law was entitled to grant the right to "the Government
or its authorised institution" to change them provided there
existed the conditions as provided for by the Law.
2. Conforming to the norms of Article 5 and those of other
articles of the Constitution, the Constitutional Court has held
in its rulings that the principle of the separation of powers
means that the legislative, executive and judicial powers must
be separated, sufficiently independent but also there must be
balance between them. Every institution of power is granted the
competence according to its purpose. The concrete content of
such competence also depends on the place of this institution
among the other institutions of power, as well as the relation
of its empowerment with that of the other institutions.
In its ruling of 3 June 1999, the Constitutional Court
noted: in cases when the powers of a concrete branch of power
are directly established in the Constitution, then no
institution may take over these powers, while an institution
whose powers are defined by the Constitution may neither
transfer nor refuse these powers. Such powers may neither be
changed nor restricted by the law.
The Constitution also separates the powers of the
Government and the Seimas in the area of forming and
maintenance of the budget.
The following is attributed to the competence of the
Government: prepare the draft budget of the State and submit it
to the Seimas; to execute the Budget of the State and report on
the fulfilment of the budget to the Seimas (Item 4 of Article
94 of the Constitution).
The Seimas shall approve the Budget of the State and
supervise the implementation thereof (Item 14 of Article 67 of
the Constitution). The draft budget of the State shall be
approved by law by the beginning of the new budget year (Part 1
of Article 131 of the Constitution).
During the budget year the Seimas may change the budget.
It shall be changed according to the same procedure by which it
was drafted, adopted and approved. As necessary, the Seimas may
approve an additional budget (Part 2 of Article 132 of the
Constitution).
3. Under the Constitution, the budget of the State shall
be approved by the Seimas upon passing a law. It is
characteristic of this law that it approves the overall sum of
revenues and expenditures, cash turnover etc. Alongside, in its
appendices the budgetary expenditures are distributed and
particularised: those of ministries, departments, state
services, enterprises, institutions and organisations according
to the titles of the managers of appropriations (Appendix 1);
according to the finances for the social economic programmes
from the appropriations approved in Appendix 1 by indicating
the titles of ministries, departments, state services and
organisations, which are managers of the appropriations
(Appendix 2); the expenditures of the budget of the State
according to the titles, i.e. by singling out the expenditures
designed for general governance of the State, defence,
education, medical care etc. (Appendix 3). The other appendices
(Appendices 4 and 5) provide for the portions of the tax of
natural persons designated for the budgets of local
governments, the general subsidy from the budget of the State
for equalising the differences between tax revenues and the
structure of expenditures, etc.
The Constitutional Court notes that all parts of the
normative legal act (including its appendices) constitute a
whole, they are inseparably interrelated and have equal legal
power. It is impossible to isolate the appendices from the
legal act as in the case that the content particularly set
forth therein is changed, consequently, the content of the
whole legal act is changed as well. Thus, not only the articles
wherein the revenues and expenditures of the budget of the
State, the financial indices of the budgets of local
governments etc. are confirmed constitute the Law passed by the
Seimas but also the appendices to the Law which particularise
the revenues as well as the expenditures set forth according to
the managers of the appropriations and other indices.
4. In the opinion of the party concerned, the Seimas,
granting the right to the Government to change the approved
appropriations, did not transfer its exclusive right to change
the budget of the State but merely established its additional
empowerment to maintain the budget, i.e. respectively to
redistribute the means by not exceeding the appropriations
designated for financing some or other administration functions
among those managers of budgetary appropriations, among which,
in the course of the implementation of the administration
reform, respective administration functions were redistributed,
and for which the Seimas had approved budgetary appropriations.
The Constitutional Court emphasises that it is impossible
to ascribe the change of the size of appropriations for its
individual managers to budget maintenance. After the Government
or its authorised institution has been granted the right to
change the sums of expenditures provided for in the appendices
to the Law for individual managers of appropriations by the
disputed norm of the Law, alongside, it was provided that the
Government or its authorised institution has the right to amend
the Law by a substatutory act. A law, however, may only be
changed by a law.
Thus there are grounds to assert that the Seimas
transferred some of its rights to "the Government or its
authorised institution" by Item 4 of Article 10 of the Law,
i.e. it delegated some of its rights in the area of the budget
to the Government. The Constitution does not provide for
delegation of legislation (the Constitutional Court ruling of
26 October 1995).
Part 2 of Article 135 of the Constitution stipulates:
"During the budget year the Seimas may change the budget. It
shall be changed according to the same procedure by which it
was drafted, adopted and approved." The Government must fulfil
the approved budget of the State according to its purpose and
in such an extent as provided for by the law on the budget (the
Constitutional Court ruling of 3 June 1999). Thus, under the
Constitution, the Government, let alone its authorised
institution, is not to be granted powers to change the budget
on its own accord.
On the grounds of the arguments set forth, it is to be
concluded that Item 4 of Article 10 of the Republic of
Lithuania Law on the Approval of the Financial Indices of the
1998 Budget of the State and Those of the Budgets of Local
Governments contradicts Article 5, Item 4 of Article 94 and
Part 2 of Article 132 of the Constitution.
II
On the compliance of Item 2 of Government Resolution No.
105 "On the Reorganisation of the Department for
Standardisation of Lithuania Under the Ministry of Public
Administration Reforms and Local Government Affairs" of 27
January 1998, Item 2 of Government Resolution No. 117 "On the
Transfer of the Right of the Founder of the Lithuanian
Zoological Garden" of 30 January 1998, and Item 3 of Government
Resolution No. 366 "On the Transfer of Certain Functions of the
Ministry of Agriculture and Forestry to the Ministry of
Environmental Protection and on the Establishment of the
Department for Forests and Protected Territories Under the
Ministry of Environmental Protection" of 30 March 1998 with
Article 5, Article 94 and Article 132 of the Constitution.
1. Conforming to Item 4 of Article 10 of the Law, the
Government adopted the disputed resolutions whereby
commissioned the Ministry of Finance to reapportion the
budgetary appropriations.
In Item 2 of Resolution No. 105 of 27 January 1998, the
Government established: "To commission the Ministry of Finance
to decrease the appropriations approved for the Department for
Standardisation of Lithuania from the 1998 budget for routine
spending <
> and reapportion these appropriations to the State
Metrological Service under the Ministry of Administration
Reforms and Local Government Affairs <
> and the National
Accreditation Bureau under the Ministry of Administration
Reforms and Local Government Affairs <
>."
In Item 2 of Resolution No. 105 of 27 January 1998, the
Government established: "To commission the Ministry of Finance
to specify, without increasing the general amount of the budget
of the State of the Republic of Lithuania, the appropriations
approved in the 1998 budget of the State of the Republic of
Lithuania for the Ministry of Environmental Protection and the
Administration of the Chief of Kaunas county under the
inter-coordinated planned indices."
2. The basis to adopt the disputed resolutions was created
by the right conferred to the Government or its authorised
institution to change the approved appropriations.
In its ruling of 3 June 1999, the Constitutional Court
noted that during the budget year "it is only the Seimas that
may change the budget, and only according to the same procedure
by which it was drafted, adopted and approved", and that "only
the Seimas was entitled to change the size of the
appropriations allocated to the abolished Ministry of the
European Affairs, Ministry of Communications and Informatics
and Ministry of Construction and Urban Planning and it was only
possible to do so by passing a law changing the law whereby the
budget had been approved".
In this Constitutional Court ruling the grant of the right
to the Government or its authorised institution to reapportion
the appropriations approved by the Law also has been assessed
as contradicting the Constitution.
Adopting the disputed resolution, the Government was
acting according to the powers established by the Law, which,
however, are attributed to another institution, i.e. the
Seimas, in the Constitution.
Thus a conclusion is to be drawn that Item 2 of Government
Resolution No. 105 of 27 January 1998 and Item 2 of Government
Resolution No. 117 of 30 January 1998 contradict Article 5,
Item 4 of Article 94 and Part 2 of Article 132 of the
Constitution.
3. The Government established in Item 3 of its Resolution
of 30 March 1998: "To commission the Ministry of Finance to
transfer corresponding budgetary appropriations from the
Ministry of Agriculture and Forestry to the Ministry of
Environmental Protection." The Constitutional Court holds that
this governmental resolution was partially amended by
Resolution No. 424 of 9 April of the same year whereby the
Ministry of Finance was commissioned to change the budgetary
appropriations for their other managers as well.
The repeal of the disputed legal act constitutes the basis
to adopt a decision to dismiss the initiated legal proceedings.
Conforming to Part 4 of Article 69 of the Law on the
Constitutional Court, the initiated legal proceedings in this
part of the case is to be dismissed.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55, 56 and Part 4 of
Article 69 of the Republic of Lithuania Law on the
Constitutional Court, the Constitutional Court has passed the
following
ruling:
1. To recognise that Item 4 of Article 10 of the Republic
of Lithuania Law on the Approval of the Financial Indices of
the 1998 Budget of the State and Those of the Budgets of Local
Governments contradicts Article 5, Item 4 of Article 94 and
Part 2 of Article 132 of the Constitution of the Republic of
Lithuania.
2. To recognise that Item 2 of Government of the Republic
of Lithuania Resolution No. 105 "On the Reorganisation of the
Department for Standardisation of Lithuania Under the Ministry
of Public Administration Reforms and Local Government Affairs"
of 27 January 1998 and Item 2 of Government of the Republic of
Lithuania Resolution No. 117 "On the Transfer of the Right of
the Founder of the Lithuanian Zoological Garden" of 30 January
1998 contradict Article 5, Item 4 of Article 94 and Part 2 of
Article 132 of the Constitution of the Republic of Lithuania.
3. To dismiss the initiated legal proceedings concerning
the compliance of Item 3 of Government of the Republic of
Lithuania Resolution No. 366 "On the Transfer of Certain
Functions of the Ministry of Agriculture and Forestry to the
Ministry of Environmental Protection and on the Establishment
of the Department for Forests and Protected Territories Under
the Ministry of Environmental Protection" of 30 March 1998 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.