Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Parts 2 and 4 of Article 8,
Item 4 of Part 1 and Part 4 of Article 9, Item 1
of Article 22, Items 5 and 11 of Part 2 of Article
24, Item 7 of Part 3 of Article 26, Parts 2 and 4
and Item 2 of Part 6 of Article 31, Part 4 of
Article 37, and Part 4 of Article 45 of the
Republic of Lithuania Law on the Government of the
Republic of Lithuania with the Constitution of the
Republic of Lithuania
Vilnius, 23 November 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 members of
the Seimas of the Republic of Lithuania-Petras Papovas, a
Seimas member,
the representative of the party concerned-Ona Buišienė, a
senior consultant to the Law Department of the Chancery of the
Seimas,
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 10
November 1999 in its public hearing conducted the investigation
of Case No. 17/98 subsequent to the petition submitted to the
Court by the petitioner-a group of members of the Seimas of the
Republic of Lithuania-requesting to investigate if Part 2 of
Article 8 and Part 4 of Article 9 of the Republic of Lithuania
Law on the Government of the Republic of Lithuania which was
amended by the 28 April 1998 Republic of Lithuania Law on
Amending the Law on the Government of the Republic of Lithuania
were in conformity with Part 2 of Article 55, Part 4 of Article
92 and Item 4 of Part 3 of Article 101 of the Constitution of
the Republic of Lithuania, Part 4 of Article 8 of the said law
with Article 93 of the Constitution, Item 1 of Article 22 of
the said law with Articles 5 and 94 of the Constitution, Items
5 and 11 of Part 2 of Article 24, Item 7 of Part 3 of Article
26 of the said law with Part 1 of Article 98 of the
Constitution, Parts 2 and 4 and Item 2 of Part 6 of Article 31
of the said law with Article 98 of the Constitution, Part 4 of
Article 37 of the said law with Part 1 of Article 95 of the
Constitution, and Part 4 of Article 45 of the said law with
Part 1 of Article 98 of the Constitution.
The Constitutional Court
has established:
I
On 28 April 1998, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on the Government of the
Republic of Lithuania (Official Gazette Valstybės žinios, 1998,
No. 41(1)-1131) whereby the Republic of Lithuania Law on the
Government of the Republic of Lithuania (hereinafter referred
to as the Law) was set forth in a new wording.
The petitioner-a group of Seimas members-requests to
investigate if Part 2 of Article 8 and Part 4 of Article 9 of
the Law were in conformity with Part 2 of Article 55, Part 4 of
Article 92 and Item 4 of Part 3 of Article 101 of the
Constitution, Part 4 of Article 8 of the said law with Article
93 of the Constitution, Item 1 of Article 22 of the said law
with Articles 5 and 94 of the Constitution, Items 5 and 11 of
Part 2 of Article 24, Item 7 of Part 3 of Article 26 of the
said law with Part 1 of Article 98 of the Constitution, Parts 2
and 4 and Item 2 of Part 6 of Article 31 of the said law with
Article 98 of the Constitution, Part 4 of Article 37 of the
said law with Part 1 of Article 95 of the Constitution, and
Part 4 of Article 45 of the said law with Part 1 of Article 98
of the Constitution.
II
The arguments of the petitioner are based on the following
arguments.
1. Part 2 of Article 8 of the Law provides: "Upon the
election of a new Seimas the Government shall return its powers
to the President of the Republic on the day when the
newly-elected Seimas convenes for the first sitting."
Meanwhile, Part 4 of Article 92 of the Constitution stipulates
that the Government shall return its powers to the President of
the Republic after the Seimas elections or upon electing the
President of the Republic. Part 2 of Article 55 of the
Constitution provides that the Seimas shall be deemed elected
when at least three-fifths of the Seimas members have been
elected. The Constitution does not provide that the Government
may return its powers only after the Seimas convenes for its
first sitting. Under Item 4 of Part 3 of Article 101 of the
Constitution, the Government must resign after Seimas
elections, when a new Government is formed. This provision
supplements Part 4 of Article 92 of the Constitution. Thus,
Part 2 of Article 8 of the Law contradicts Part 2 of Article
55, Part 4 of Article 92 and Item 4 of Part 3 of Article 101 of
the Constitution. In the opinion of the petitioner, Item 4 of
Part 1 of Article 9 of the Law also contradicts the aforesaid
articles of the Constitution.
2. Article 8 of the Law does not explain when it is
recognised that more than a half of the ministers have changed,
nor does it regulate as to what ministers, i.e. whether all the
ministers or only the newly appointed ones, must take an oath
before the Government, after it has returned its powers and has
received confidence anew, begins to perform its duties. Article
93 of the Constitution provides that on entering upon their
duties, the Prime Minister and the individual ministers shall,
in the Seimas, take an oath. According to the petitioner, the
legal regulation set forth in the Law creates a possibility to
interpret the norms of Part 4 of Article 8 of the Law in varied
manner when comparing them with Article 93 of the Constitution.
3. Item 1 of Article 22 of the Law provides that the
Government shall protect the constitutional order. Article 94
of the Constitution which enumerates the main powers of the
Government does not provide that the Government shall protect
the constitutional order. Under Article 5 of the Constitution,
the powers of the State shall be exercised by the Seimas, the
President of the Republic and the Government, and the
Judiciary. In this article the principles of separation of
powers and their limits are established. Thus, in the opinion
of the petitioner, it must be concluded that the norms of Item
1 of Article 22 of the Law extends the powers of the Government
if compared to those established by the Constitution therefore
the said norm contradicts Articles 5 and 94 of the
Constitution.
4. Item 5 of Part 2 of Article 24 of the Law provides that
the Prime Minister has the right to appoint and dismiss the
heads of departments under ministries, and upon the
recommendation of individual ministers he has the right to
appoint vice-ministers, and to fix the number thereof. A
similar provision is established in Item 11 of Part 2 of the
same article whereby the Prime Minister has the right to
appoint, upon the recommendation of individual ministers, the
heads of other establishments under ministries as well. Items 7
and 11 of Part 3 of Article 26 of the Law provide for the right
of individual ministers to present recommendations to the Prime
Minister as regards appointment and dismissal of
vice-ministers, and the heads of other establishments under
ministries. Article 98 of the Constitution prescribes that
ministers shall head their respective ministries. Under Article
96 of the Constitution, the ministers shall be responsible to
the Seimas, the President of the Republic, and directly
subordinate to the Prime Minister. This pre-supposes
independence of ministers and their accountability and
responsibility in adoption of decisions. Ministers, heading
their respective ministries, have an independent right to
choose their team and officials. According to the petitioner,
Items 5 and 11 of Part 2 of Article 24, Item 7 of Part 3 of
Article 26 of the Law contradict Article 96 and Part 1 of
Article 98 of the Constitution.
5. Article 31 of the Law employs the concept
vice-minister. According to A Dictionary of International
Words, this concept means a deputy minister. Part 2 of Article
31 provides that a minister shall direct subdivisions of the
ministry either directly or through the vice-ministers or the
secretary of the ministry. Part 4 of the same article provides
that a vice-minister shall ensure the implementation of the
policy established by the minister in the attributed area of
his powers, shall submit draft laws and other legal acts to the
minister. Such powers of a vice-minister, in the opinion of the
petitioner, attribute to him the powers of a deputy minister,
therefore Parts 2 and 4 of Article 31 of the Law contradict
Parts 1 and 2 of Article 98 of the Constitution.
6. Item 2 of Part 6 of Article 31 of the Law provides that
the secretary of a ministry shall be responsible for the
economic and financial activity of the ministry. Under Part 1
of Article 98 of the Constitution, ministers shall head their
respective ministries, therefore they are responsible for the
economic and financial activity of their ministries. According
to the petitioner, Item 2 of Part 6 of Article 31 of the Law
contradicts Article 98 of the Constitution.
7. Part 4 of Article 37 of the Law provides that the most
important issues may be discussed before sittings of the
Government in the permanent or temporary committees of the
Government which are created by the Prime Minister and in
convocational conferences of the secretaries of ministries
organised by the Secretary of the Government. It is not clear
from this wording as to what most important issues might be
discussed in convocational conferences of the secretaries of
ministries organised by the Secretary of the Government. If
these are the issues ascribed to the competence of the
Government, thus Part 4 of Article 37 contradicts Part 1 of
Article 95 of the Constitution.
8. Part 4 of Article 45 of the Law provides that the
Secretary of the Government may issue, within his competence,
instructions-resolutions to the ministries (secretaries of
ministries) or establishments under the Government. According
to the petitioner, as ministries are headed by ministers, then
the fact that the said right is granted to the Secretary of the
Government contradicts Part 1 of Article 98 of the
Constitution.
III
In the course of the preparation of the case for the
judicial hearing, explanations of D. Kutraitė-Giedraitienė,
Chancellor of the Government of the Republic of Lithuania, Dr.
T. Birmontienė, Head of the Constitutional Law Department of
the Public Administration Faculty of the Law Academy of
Lithuania, and those of the Central Electoral Committee, were
received.
In the explanations of D. Kutraitė-Giedraitienė and T.
Birmontienė it is maintained that the articles of the Law as
well as their parts and items indicated by the petitioner are
in conformity with the Constitution.
Z. Vaigauskas, Chairman of the Central Electoral
Committee, in his written paper explains as to how the Central
Electoral Committee interprets the concepts after the election
of the Seimas, upon election of a new Seimas, and the Seimas
shall be held elected.
The Constitutional Court
holds that:
I
1.1. The petitioner requests to investigate whether Part 4
of Article 9 of the Law is in compliance with the Constitution.
In the argumentative part of the petition he also points out
another Part of Article 9 of the Law: according to him, not
only Part 4 of Article 9 but also Item 4 of Part 1 of Article 9
of the Law contradicts the Constitution.
Taking account of this, the petitioner requests to
investigate the compliance of individual articles, their parts
and items of the Law regulating returning of powers of the
Government and resignation of the Government with the
Constitution, while Item 4 of Part 1 of Article 9 of the Law
which was pointed out in the argumentative part of the petition
regulates the questions of resignation of the Government. The
Constitutional Court will also investigate whether Item 4 of
Part 1 of Article 9 of the Law is in compliance with Part 2 of
Article 55, Part 4 of Article 92 and Item 4 of Part 3 of
Article 101 of the Constitution.
1.2. In his petition the petitioner also requests to
investigate whether Items 5 and 11 of Part 2 of Article 24 of
the Law are in compliance with Part 1 of Article 98 of the
Constitution, however in the argumentative part of the petition
he reduces his request and points out that, in his opinion,
only the provisions of Item 5 of Part 2 of Article 24 of the
Law under which the Prime Minister is entitled to appoint and
dismiss vice-ministers, to establish the number thereof, and to
appoint and dismiss the heads and deputy heads of departments
under ministries, contradict the Constitution.
Taking account of the aforesaid motives, the
Constitutional Court will only investigate the compliance of
the legal norms contained by Item 5 of Part 2 of Article 24 of
the Law which regulate the right of the Prime Minister to
appoint and dismiss vice-ministers, the heads and deputy heads
of departments under ministries but not that of the whole said
item with the Constitution.
1.3. The petitioner requests to investigate whether Items
5 and 11 of Part 2 of Article 24 and Item 7 of Part 3 of
Article 26 of the Law are in compliance with Part 1 of Article
98 of the Constitution wherein the competence of ministers to
head respective ministries is established. In the argumentative
part of the petition the petitioner also points out that, in
his opinion, the said items of said articles of the Law also
contradict Article 96 of the Constitution.
Taking account of the arguments set down by the petitioner
and the content of Part 2 of Article 96 of the Constitution,
the Constitutional Court will also investigate whether the said
items of said articles of the Law are in compliance with Part 2
of Article 96 of the Constitution.
II
On the compliance of Part 2 of Article 8 of the Law with
Part 2 of Article 55, Part 4 of Article 92 and Item 4 of Part 3
of Article 101 of the Constitution.
2.1. Part 2 of Article 8 of the Law provides: "After the
election of a new Seimas the Government shall return its powers
to the President of the Republic on the day when the
newly-elected Seimas convenes for the first sitting." The
petitioner maintains that this contradicts Part 2 of Article
55, Part 4 of Article 92 and Item 4 of Part 3 of Article 101 of
the Constitution. In the opinion of the petitioner, the
Government must return its powers to the President of the
Republic upon the election of the Seimas but not on the day
when the Seimas convenes for its first sitting.
2.2. Part 4 of Article 92 of the Constitution provides
that "the Government shall return its powers to the President
of the Republic after the Seimas elections or upon electing the
President of the Republic".
In the course of the investigation of the question of
returning of powers of the Government after Seimas elections it
is impossible to construe the norm of Part 4 of Article 92 of
the Constitution by separating it from the other norms of the
Constitution as the constitutional norms regulating various
questions of Government formation, as well as those of
interrelations between the Seimas, the President of the
Republic and the Government, are set down in various articles
of the Constitution. Therefore, disclosing the content of Part
4 of Article 92 of the Constitution, the Court will apply not
only the linguistic but also systematic method of construction.
When it is investigated as to when particularly the
Government must return its powers, it is very important to
disclose the content of the concept after the election of the
Seimas.
Disclosing the concept after the election of the Seimas,
one is to take account of the fact that under Part 1 of Article
59 of the Constitution "the term of office of Seimas members
shall commence from the day that the newly-elected Seimas
convenes for the first sitting. The powers of the previously
elected Seimas members shall expire as from the opening of the
sitting". The President of the Republic shall convene the first
sitting of the newly-elected Seimas which must be held within
15 days of the Seimas election. If the President of the
Republic fails to convene the sitting of the Seimas, the
members of the Seimas shall assemble the day following the
expiration of the 15-day period (Article 65 of the
Constitution). Under Part 2 of Article 55 of the Constitution,
the Seimas shall be deemed elected when at least three-fifths
of the Seimas members have been elected. The fact that at least
three-fifths of the Seimas members have been elected shall be
announced by the Central Electoral Committee (Part 1 of Article
82 of the Statute of the Seimas).
Thus, under the Constitution, after the Seimas has been
elected, there is a certain time period until the newly-elected
Seimas convenes for its first sitting and when the new Seimas
begins to function as an institution of state power. Its
duration depends on when the President of the Republic convenes
the newly-elected Seimas, however this period may not be longer
than 15 days (Article 65 of the Constitution). During this
period, the Seimas which is finishing its office continues to
enjoy all the powers granted to it by the Constitution and the
laws. At the same time the link of the Government with the
former Seimas persists as it was that Seimas that participated
in the formation of the Government: it had approved the
candidature of the Prime Minister and the Programme of the
Government, and in this way it had empowered the Government to
act (Part 5 of Article 92 of the Constitution). From the
announcement of the election results until its first sitting
the newly-elected Seimas still does not function as an
institution of state power as the elected Seimas members have
not acquired all the rights of the representatives of the
People.
After the newly-elected Seimas convenes for its first
sitting, from the beginning of this sitting the powers of the
former Seimas members terminate. Upon termination of these
powers, the former Seimas, i.e. one of the subjects by which
the Government had been empowered to act, ceases to exist. It
is for this fact that the Government returns its powers to the
President of the Republic on the day when the powers of the
former Seimas are terminated.
On the grounds of the aforesaid motives a conclusion is to
be drawn that Part 2 of Article 8 of the Law is in compliance
with Part 4 of Article 92 of the Constitution.
2.3. Part 2 of Article 55 of the Constitution provides
that "the Seimas shall be deemed elected when at least
three-fifths of the Seimas members have been elected". This
constitutional norm provides as to how many Seimas members must
be elected so that the legal fact might be stated that a new
Seimas has been elected. As mentioned, the fact that not less
than three-fifths of the Seimas members have been elected is
stated by the Central Electoral Committee. The statement of
this legal fact is very important as it gives rise to the legal
effects provided for in the Constitution: a duty for the
President of the Republic occurs to convene the newly-elected
Seimas for its first sitting which must be held within 15 days;
if the President of the Republic fails to convene the sitting
of the Seimas, the members of the Seimas shall assemble the day
following the expiration of the 15-day period (Article 65 of
the Constitution).
Deciding whether Part 2 of Article 8 of the Law is in
conformity to Part 2 of Article 55 of the Constitution, one is
to pay attention to the fact that in this part there is no
regulation as to when the Government must return its powers to
the President of the Republic. It is established therein as to
when the Seimas is deemed to be elected. The returning of the
Government's powers to the President of the Republic is
established in Part 4 of Article 92 and Item 6 of Part 6 of
Article 84 of the Constitution and, as it was held in this
ruling, is linked with the termination of powers of the former
Seimas.
On the grounds of the motives set forth it is to be
concluded that Part 2 of Article 8 of the Law is in compliance
with Part 2 of Article 55 of the Constitution.
2.4. Item 4 of Part 3 of Article 101 of the Constitution
provides that the Government must resign "after Seimas
elections, when a new Government is formed". This legal norm
establishes one of the bases for resignation of the Government.
Part 2 of Article 8 of the Law stipulates that "after the
election of a new Seimas the Government shall return its powers
to the President of the Republic on the day when the
newly-elected Seimas convenes for the first sitting". This
legal norm regulates relations of different kind, i.e.
returning of powers of the Government. It needs to be noted
that the concepts resignation of the Government and returning
of powers of the Government are not identical, they are linked
with different legal situations and different legal effects
(the ruling of the Constitutional Court of 10 January 1998).
Taking account of the fact that Item 4 of Part 3 of
Article 101 of the Constitution regulates the relations of
resignation of the Government but not those of returning of
powers of the Government, one is to conclude that Part 2 of
Article 8 of the Law is in compliance with Item 4 of Part 3 of
Article 101 of the Constitution.
III
On the compliance of Item 4 of Part 1 and Part 4 of
Article 9 of the Law with Part 2 of Article 55, Part 4 of
Article 92 and Item 4 of Part 3 of Article 101 of the
Constitution.
3.1. Item 4 of Part 1 of Article 9 of the Law provides
that the Government must resign "upon election of a new Seimas
when the newly-elected Seimas convenes for the first sitting".
In the opinion of the petitioner, Item 4 of Part 1 of Article 9
contradicts Part 2 of Article 55, Part 4 of Article 92 and Item
4 of Part 3 of Article 101 of the Constitution.
It needs to be noted that the disputed Item 4 of Part 1 of
Article 9 of the Law points out one of the cases when the
Government must resign, meanwhile Part 2 of Article 55 of the
Constitution establishes as to when the Seimas is deemed to be
elected.
Taking account of the fact that Part 2 of Article 55 of
the Constitution does not regulate the questions of resignation
of the Government, one is to conclude that Item 4 of Part 1 of
Article 9 of the Law is in compliance with Part 2 of Article 55
of the Constitution.
3.2. Part 4 of Article 92 of the Constitution provides
that "the Government shall return its powers to the President
of the Republic after the Seimas elections or upon electing the
President of the Republic". Thus Part 4 of Article 92 of the
Constitution regulates the questions of returning of powers of
the Government. Meanwhile, Item 4 of Part 1 of Article 9 of the
Law points out that upon the election of a new Seimas when the
newly-elected Seimas convenes for the first sitting the
Government must resign. Thus Item 4 of Part 1 of Article 9 of
the Law regulates the relations linked with resignation of the
Government but not those of returning of powers of the
Government.
Taking account of the fact that Part 4 of Article 92 of
the Constitution does not regulate the questions of resignation
of the Government, one is to conclude that Item 4 of Part 1 of
Article 9 of the Law is in compliance with Part 4 of Article 92
of the Constitution.
3.3. Item 4 of Part 3 of Article 101 of the Constitution
provides that the Government must resign "after Seimas
elections, when a new Government is formed". Under Part 3 of
Article 101 of the Constitution, "the Government must also
resign if: 1) the Seimas disapproves two times in succession of
the programme of the newly-formed Government; 2) 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)
the Prime Minister resigns or dies". In addition, the
Government must resign in cases when the Government is not
re-invested with authority by the Seimas when more than half of
the ministers are changed (Part 2 of Article 101 of the
Constitution). It needs to be noted that the list of bases of
compulsory resignation of the Government provided for by the
Constitution is a final one. It means that it is not permitted
to establish any new bases for compulsory resignation of the
Government by the laws, nor to change (reduce or extend) these
bases by the laws.
Item 4 of Part 1 of Article 9 of the Law provides that the
Government must resign "upon the election of a new Seimas when
the newly-elected Seimas convenes for the first sitting".
Meanwhile, Item 4 of Part 3 of Article 101 of the Constitution
provides that the Government must resign "after Seimas
elections, when a new Government is formed". On comparing the
bases of resignation of the Government established in the Law
and the Constitution, one is to conclude that they do not
coincide as they describe different legal situations: under
Item 4 of Part 1 of Article 9 of the Law provides that the
Government must resign upon the election of a new Seimas when
the newly-elected Seimas convenes for the first sitting, while
under Item 4 of Part 3 of Article 101 of the Constitution it
must resign after Seimas elections, when a new Government is
formed.
It needs to be noted that formation of the Government is
not a one time action but a process including various actions:
for instance, the President of the Republic must submit to the
Seimas the candidature of a new Prime Minister for
consideration (Item 8 of Article 84 of the Constitution), the
Seimas must approve this candidature (Item 6 of Article 67 of
the Constitution), the President of the Republic must appoint
the Prime Minister, charge him or her to form the Government,
and approve its composition (Item 4 of Article 84 of the
Constitution).
The concepts the first sitting of the newly-elected Seimas
and formation of the Government are not identical as they
describe different legal situations. Thus Item 4 of Part 1 of
Article 9 of the Law provides for a basis of resignation of the
Government which is not provided for in the Constitution.
Under Part 2 of Article 5 of the Constitution, the scope
of powers shall be circumscribed by the Constitution. After a
basis of resignation of the Government which is not provided
for in the Constitution had been established in the Law, the
powers of the Seimas provided for in the Constitution were
overstepped.
Taking account of the motives set forth, one is to draw a
conclusion that Item 4 of Part 1 of Article 9 of the Law
contradicts Part 2 of Article 5 and Item 4 of Part 3 of Article
101 of the Constitution.
3.4. Part 4 of Article 9 of the Law provides that "the
President of the Republic shall accept resignation 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". In the opinion of the petitioner, this contradicts
Part 2 of Article 55, Part 4 of Article 92 and Item 4 of Part 3
of Article 101 of the Constitution.
As mentioned, Part 2 of Article 55 of the Constitution
provides that "the Seimas shall be deemed elected when at least
three-fifths of the Seimas members have been elected". The
purpose of this legal norm is establishment as to when the
Seimas must be deemed elected.
Meanwhile, the content of the legal norm contained in Part
4 of Article 9 of the Law is different: it indicates the
subject who is empowered to accept resignation of the
Government (this is ascribed to the competence of the President
of the Republic), and provides what actions the President of
the Republic may perform after he has accepted resignation of
the Government. It needs to be noted that the text of Part 4 of
Article 9 of the Law repeats the text of the first sentence of
Item 7 of Article 84 of the Constitution.
Taking account of the fact that Part 2 of Article 55 of
the Constitution provides when the Seimas must be deemed
elected but it does not provide for the procedure of
resignation of the Government, one is to conclude that Part 4
of Article 9 of the Law is in compliance with Part 2 of Article
55 of the Constitution.
3.5. As mentioned, in Part 4 of Article 92 of the
Constitution the questions of returning of the powers of the
Government are regulated. Meanwhile, in disputed Part 4 of
Article 9 of the Law the questions of resignation of the
Government are regulated. Taking account of the fact that Part
4 of Article 92 does not regulate the questions of resignation
of the Government, one is to conclude that Part 4 of Article 9
of the Law is in compliance with Part 4 of Article 92 of the
Constitution.
3.6. Item 4 of Part 3 of Article 101 of the Constitution
provides that the Government must resign "after Seimas
elections, when a new Government is formed". It is pointed out
in this legal norm as to when the Government must resign.
Meanwhile, as mentioned, Part 4 of Article 9 of the Law
provides that resignation of the Government shall be accepted
by the President of the Republic, and indicates what actions he
may perform after he has accepted resignation of the
Government.
Taking account of the fact that Item 4 of Part 3 of
Article 101 regulates relations different from those regulated
in Part 4 of Article 9 of the Law, one is to conclude that Part
4 of Article 9 of the Law is in compliance with Item 4 of Part
3 of Article 101 of the Constitution.
IV
On the compliance of Part 4 of Article 8 of the Law with
Article 93 of the Constitution.
Part 4 of Article 8 of the Law provides that when more
than half of the ministers are changed, the Government must be
re-invested with authority by the Seimas. The petitioner
requests to investigate whether this is in compliance with
Article 93 of the Constitution.
Article 93 of the Constitution provides that "on entering
upon their duties, the Prime Minister and the individual
Ministers shall, in the Seimas, take an oath to be loyal to the
Republic of Lithuania and to observe the Constitution and the
laws. The text of the oath shall be established by the Law on
the Government". This constitutional norms provides for a
condition which must be fulfilled by the Prime Minister and the
ministers so that they might enter upon their duties, i.e. they
must take an oath in the Seimas. As long as the Prime Minister
or the ministers have not taken an oath in the Seimas, they may
not enter upon their duties, i.e. they may not exercise their
powers provided for in the Constitution, the laws and other
legal acts.
Part 4 of Article 8 of the Law provides as to when the
Government must be re-invested with authority by the Seimas
(i.e. when more than half of the ministers are changed). It
needs to be noted that this text verbally repeats the text of
the first sentence of Part 2 of Article 101 of the
Constitution. In its ruling of 20 April 1999 the Constitutional
Court held that "the institute 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".
Taking account of the fact that Article 93 of the
Constitution regulates the questions of swearing of the Prime
Minister and the ministers but does not regulate re-investment
of the Government with authority, one is to draw a conclusion
that Part 4 of Article 8 of the Law is in compliance with
Article 93 of the Constitution.
V
On the compliance of Item 1 of Article 22 of the Law with
Articles 5 and 94 of the Constitution.
5.1. Item 1 of Article 22 of the Law provides that the
Government shall "protect the constitutional order and the
inviolability of the territory of the Republic of Lithuania,
administer the affairs of the country, ensure State security
and public order". The petitioner maintains that the provision
"the Government shall protect the constitutional order"
contradicts Articles 5 and 94 of the Constitution. In the
opinion of the petitioner, the said provision of the Law
extends the powers of the Government attributed to it by the
Constitution.
Article 94 of the Constitution provides that the
Government shall administer the affairs of the country, protect
the inviolability of the territory of the Republic of
Lithuania, ensure State security and public order, coordinate
the activities of the ministries and other governmental
institutions, prepare the draft budget of the state and submit
it to the Seimas, establish diplomatic relations and maintain
relations with foreign countries etc. The powers of the
Government are also established in the other articles of the
Constitution (Articles 84, 89, 123, 128 etc.). It needs to be
noted that the list of powers of the Government provided for in
the Constitution is not a final one. Under Item 7 of Article 94
of the Constitution, the Government shall "discharge other
duties prescribed to the Government by the Constitution and
other laws".
Such constitutional regulation of the powers of the
Government is determined by the fact that the areas of state
administration and functions of administration are very much
varied and subject to change. The activity of the Government is
not only of executive but also procedural nature. Enforcing the
laws and resolutions adopted by the Seimas, the Government
itself passes normative and individual legal acts and ensures
their enforcement. On the other hand, when the Government
exercises the functions ascribed to it by the Constitution, its
powers may depend on the economic and social situation of this
country, the problems at issue and a number of other
circumstances, after the change of which the content and scope
of the powers of the Government may also be changed. Therefore,
as mentioned, only the main powers of the Government are
provided for in the Constitution, and it is established therein
that the Government shall discharge the duties prescribed to it
not only in the Constitution but other laws as well (Item 7 of
Article 94 of the Constitution).
5.2. As mentioned, Item 1 of Article 22 of the Law
provides, among the other powers of the Government, that the
Government shall protect the constitutional order.
The constitutional order of the Republic of Lithuania is
based on of the priority of the rights and freedoms of
individuals and citizens as the ultimate value, as well as on
the principles establishing the sovereignty of the People,
independence and territorial integrity of the state, democracy,
republic as the form of state governance, separation of state
powers, their independence and balance, local self-government
etc. Protection of the constitutional order means that it is
not permitted that the social, economic and political relations
established in the Constitution which constitute the
fundamentals of the life of individuals, society and the state
be encroached upon.
5.3. Article 5 of the Constitution provides that the
powers of the State shall be exercised by the Seimas, the
President of the Republic and the Government, and the
Judiciary. It is also provided for therein that the scope of
powers shall be circumscribed by the Constitution. The
Constitutional Court has held that that 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
(rulings of 21 April 1998 and 3 June 1999).
It needs to be noted that the Constitution does not
ascribe the function of protection of the constitutional order
to a single institution of state power. This is a
constitutional obligation of all institutions of state power
(the Seimas, the President of the Republic, the Government, the
Judiciary) and other state establishments and organisations.
This obligation derives not only from particular laws but also
from the principle of the state under the rule of law
established in the Constitution and the requirement to adhere
to the Constitution, to enforce it, not to violate it and to
protect it. Of course, every state institution protects the
constitutional order only by means of the forms of the activity
characteristic to it and only on the grounds of the powers
attributed to it by the Constitutions and the laws.
Deciding whether Item 1 of Article 22 of the Law is in
conformity with the Constitution, the fact is of essential
importance that the said item does not establish any additional
powers to the Government related to protection of the
constitutional order which might otherwise alter or restrict
the powers of the other institutions of state power established
in the Constitution.
The Constitutional Court notes that the disputed provision
of the Law whereby the Government shall protect constitutional
order may not be construed as the one providing the basis for
the Government by its resolutions to establish such powers for
institutions of state administration by which the competence of
other institutions of state power might be interfered.
Taking account of the fact that, under Item 7 of Article
94 of the Constitution, the Seimas is empowered to establish
the functions of the Government, and after it had been
established in Item 1 of Article 22 of the Law that the
Government shall protect the constitutional order, and that by
this legal norm the constitutional powers of other institutions
of state power have not been changed nor restricted, one is to
draw a conclusion that the Seimas did not overstep the powers
granted to it by the Constitution.
On the grounds of the motives set forth, it is to be
concluded that Item 1 of Article 22 of the Law is in compliance
with Articles 5 and 94 of the Constitution.
VI
On the compliance of Items 5 and 11 of Part 2 of Article
24 and Item 7 of Part 3 of Article 26 of the Law with Part 2 of
Article 96 and Part 1 of Article 98 of the Constitution.
6.1. The petitioner maintains that under the Constitution
it is a minister but never the Prime Minister that has to
appoint respective vice-ministers, heads of departments and
those of other establishments under respective ministries.
Therefore, in the opinion of the petitioner, Items 5 and 11 of
Part 2 of Article 24 of the Law contradict Article 96 and Part
1 of Article 98 of the Constitution.
Item 5 of Part 2 of Article 24 of the Law provides that
the Prime Minister shall "appoint and dismiss the heads of
governmental establishments-departments under the
Government-upon the recommendation of the Chancellor of the
Government, and in the cases provided for by legal acts also
the heads of departments under ministries upon the
recommendation of individual ministers, and deputy heads of
these departments upon the recommendation of the heads of the
departments; upon the recommendation of individual ministers
appoint and dismiss vice-ministers, and fix the number thereof;
on his own initiative dismiss the state officials who have been
appointed by the Prime Minister on the basis of political and
personal confidence and other officials appointed by the Prime
Minister by expressing a lack of confidence in them. In such
cases the Law on Labour Agreement shall not be applicable to
the said officials, they shall be paid a separation pay the
size of two average monthly salaries with the exception of the
political officials to whom the social guarantees provided for
in Article 13 of the said law shall be applicable".
Under Item 11 of Part 2 of Article 24 of the Law, the
Prime Minister shall "in the cases provided for in the laws and
governmental resolutions appoint the heads of the departments
and other establishments under ministries upon the
recommendation of individual ministers".
As mentioned, taking account of the motives set forth in
the petition of the petitioner, the Constitutional Court will
investigate the compliance of not all Item 5 of Part 2 of
Article 24 of the Law but only the norms contained in the said
item establishing the right of the Prime Minister to appoint
and dismiss vice-ministers and the heads and deputy heads of
departments under ministries with the Constitution.
6.2. Part 1 of Article 98 of the Constitution provides
that "ministers shall head their respective ministries, shall
resolve issues assigned to the competence of their ministries,
and shall also discharge other functions prescribed by the
laws".
It needs to be noted that the Constitution does not
directly provide for the procedure for appointment and
dismissal of vice-ministers, the heads and deputy heads of
departments under ministries or other heads of establishments
under ministries. This procedure may be regulated by the laws
or other legal acts. The Seimas may establish by laws only such
procedure of appointment and dismissal of officials which would
be in conformity with the provisions of the Constitution. In
the context of the request at issue it means that the procedure
of appointment and dismissal of the aforementioned officials
may neither deny nor restrict the competence of a minister
established in the Constitution.
Thus, while deciding the compliance of the norms of Item 5
and Item 11 of Part 2 of Article 24 of the Law with Part 1 of
Article 98 of the Constitution, it is important to disclose the
content of the provision "ministers shall head their respective
ministries" contained in Part 1 of Article 98 of the
Constitution and to establish whether the procedure for
appointment of vice-ministers, the heads and deputy heads of
departments under ministries or other heads of establishments
under ministries denies the constitutional competence of
ministers or not.
6.3. It needs to be noted that the following elements
constitute the content of the provision "ministers shall head
their respective ministries" contained in Part 1 of Article 98
of the Constitution: under procedure established by the laws or
other legal acts a minister is entitled to choose employees of
his ministry and to appoint and dismiss them; a minister is
entitled to organise the work of employees of his ministry so
that the functions established for the ministry by the laws and
other legal acts might be performed; a minister is entitled to
give instructions to all employees of his ministry who must
perform them; a minister is entitled to apply disciplinary
measures to all the employees of his ministry who do not
perform their duties or do not carry out the instructions of
the minister or who do not carry out them properly, and he is
entitled to give an incentive to all employees of his ministry.
After it had been established in Items 5 and 11 of Part 2
of Article 24 of the Law that the Prime Minister shall appoint
and dismiss vice-ministers, while in the cases provided for in
the laws and governmental resolutions he shall appoint and
dismiss the heads of departments and other establishments under
ministries upon the recommendation of a respective minister,
the competence of a minister to head his ministry established
in Part 1 Article 98 of the Constitution was restricted as
there not any established right for the minister to decide on
his own as to who is to be appointed as a vice-minister, or the
head or deputy head of a department under the ministry or the
head of another establishment under the ministry. Even though
under the said provisions of the Law the Prime Minister shall
appoint and dismiss vice-ministers, while in the cases provided
for in the laws and governmental resolutions he shall appoint
and dismiss the heads of departments and other establishments
under ministries upon the recommendation of a respective
minister, however the recommendation of the minister is not a
sufficient guarantee ensuring that the constitutional right of
the minister to head his ministry will not be violated.
It needs to be noted that the competence of a minister to
head his ministry established in Part 1 of Article 98 of the
Constitution presupposes his personal responsibility for the
activities of the ministry. Under Part 2 of Article 96 of the
Constitution, the ministers, in directing the spheres of
administration entrusted to them, shall be responsible to the
Seimas, the President of the Republic, and directly subordinate
to the Prime Minister. Part 1 of Article 101 of the
Constitution provides that individual ministers must give an
account of their activities to the Seimas. The responsibility
of a minister for the activities of his ministry is also
provided for in the Law: for example, Item 1 of Part 3 of
Article 26 of the Law provides that a minister shall be
"personally responsible for the implementation of the Programme
of the Government within the competence of administration
entrusted to his ministry"; Item 2 of the same part provides
that a minister shall "ensure the enforcement of the laws,
international agreements of the Republic of Lithuania, decrees
of the President of the Republic, governmental resolutions,
directives of the Prime Minister and other legal acts". The
responsibility of ministers is also provided for in the other
items of this article as well.
After the procedure for the appointment and dismissal of
the heads and deputy heads of departments under ministries and
the heads of other establishments under ministries had been
established in the Law whereby a minister has not any right to
appoint and dismiss the said officials on his own, such legal
situation was created when the responsibility of a minister for
the activity of his ministry provided for in Part 2 of Article
96 of the Constitution is in part denied: the minister is not
independent when he has to choose personalities for
vice-ministers, the heads and deputy heads of departments under
his ministry, or the heads of other establishments under the
ministry, as he is legally bound by the opinion and decision of
the Prime Minister who appoints and dismisses the
aforementioned officials.
On the grounds of the motives set forth, one is to draw a
conclusion that Item 5 of Part 2 of Article 24 of the Law in
the scope whereby the right of the Prime Minister to appoint
and dismiss vice-ministers, the heads and deputy heads of
departments under ministries, and Item 11 of Part 2 of Article
24 of the Law contradict Part 2 of Article 96 and Part 1 of
Article 98 of the Constitution.
6.4. Item 7 of Part 3 of Article 26 of the Law provides
that a minister shall "submit to the Prime Minister his
proposals regarding the appointment or dismissal of
vice-ministers, and those concerning the imposition of
disciplinary sanctions to them or giving an incentive to them".
As mentioned, the provisions of the Law whereby the Prime
Minister appoints and dismisses vice-ministers, the heads and
deputy heads of departments under ministries, the heads of
other establishments under ministries contradicts Part 2 of
Article 96 and Part 1 of Article 98 of the Constitution. As
under the Constitution the Prime Minister may not be granted by
law the right to appoint vice-ministers, the heads and deputy
heads of departments under ministries and the heads of other
establishments under ministries, thus it is not permitted that
by law the right to the Prime Minister to impose disciplinary
sanctions to the said officials or to give them an incentive be
granted. The right to impose disciplinary sanctions or to give
an incentive is one of important control levers assisting a
person in charge to achieve performance of his subordinates of
their duties properly and his instructions carried out. After
it had been established in Item 7 of Part 3 of Article 26 of
the Law that a minister shall "submit to the Prime Minister his
proposals regarding the appointment or dismissal of
vice-ministers, and those concerning the imposition of
disciplinary sanctions to them or giving an incentive to them",
a legal situation was created when a minister has the right
only to propose but not to decide the questions of appointment
and dismissal of vice-ministers and those of imposition of
disciplinary sanctions to them or giving an incentive to them.
Such legal regulation restricts the competence of a minister to
head his ministry established in the Constitution.
On the grounds of the motives set forth one is to draw a
conclusion that Item 7 of Part 3 of Article 26 of the Law
contradicts Part 2 of Article 96 and Part 1 of Article 98 of
the Constitution.
VII
On the compliance of Parts 2 and 4 and Item 2 of Part 6 of
Article 31 of the Law with Part 1 of Article 98 of the
Constitution.
7.1. Part 2 of Article 31 of the Law provides that "a
minister shall direct: structural units of the ministry either
directly or through the vice-ministers or the secretary of the
ministry; departments, services and inspectorates under the
ministry, other establishments and organisations under its
jurisdiction through the heads of these institutions". In the
opinion of the petitioner, this contradicts Article 98 of the
Constitution.
Part 2 of Article 31 of the Law regulates the way how a
minister may implement the competence to head the ministry
granted to him in Part 1 of Article 98 of the Constitution.
While deciding the compliance of Part 2 of Article 31 of the
Law with Part 1 of Article 98 of the Constitution, it is of
essential importance that Part 1 of Article 98 of the
Constitution does not provide for a procedure under which a
minister must implement the competence granted to him by the
Constitution. This procedure is provided for in the laws,
governmental resolutions and other legal acts. The provision
set forth in Part 2 of Article 31 of the Law whereby a minister
may head structural units either directly or through
vice-ministers, the secretary of the ministry or the heads of
other establishments under the jurisdiction of the ministry
permits the minister to choose independently and in unhindered
manner and apply the most rational, in the opinion of the
minister, ways of guidance of structural units of the ministry
and the establishments under its jurisdiction. The said
provision of the Law neither denies nor restricts the
competence of the minister to head his ministry and to decide
the questions prescribed to the sphere of its competence as
established in Part 1 of Article 98 of the Constitution.
7.2. Part 4 of Article 31 of the Law provides that "a
vice-minister shall take care of the work in the ministry
allotted by the minister, through the secretary of the ministry
and respective heads of the establishments of the ministry he
shall coordinate and ensure within the sphere of his powers the
implementation of the policy established by the minister,
submit to the minister draft laws and other legal acts". In the
opinion of the petitioner, this contradicts Article 98 of the
Constitution.
It needs to be noted that under Part 3 of Article 31 of
the Law, the competence of a vice-minister shall be established
by the minister and that a vice-minister shall be directly
accountable to a respective minister. Enjoying the right to
establish the competence of the vice-minister, the minister
also has the right to regulate the activity of the
vice-minister in his relations with the structural units of the
ministry or the establishments within its jurisdiction and to
establish the powers of the vice-minister in the area of
performance of administrative functions. Therefore there is not
any legal basis to assert that the norm contained in Part 4 of
Article 31 of the Law restricts or limits the competence of a
minister to head his ministry as established in Part 1 of
Article 98 of the Constitution.
In the context of the question at issue the fact is of
importance that the competence of a vice-minister established
in Part 4 of Article 31 of the Law is different from that of a
minister which is provided in the Constitution and this Law. A
vice minister does not have the right to head the ministry, he
may not decide the questions ascribed to the sphere of its
jurisdiction, he does not have the right to issue directives
whereby legal acts are confirmed etc. As mentioned, a
vice-minister takes care of the work in the ministry allotted
by the minister, coordinates and ensures within the sphere
ascribed to him the implementation of the policy established by
the minister etc. By Part 2 of Article 26 of the Law, "a
minister may be temporarily substituted only by another member
of the Government appointed by the Prime Minister". This legal
norm merely repeats the norm set forth in Part 2 of Article 98
of the Constitution. Thus the Law does not provide that a
vice-minister is entitled to exercise the powers attributed to
the minister by the Constitution or substitute him.
On the grounds of the motives set forth, one is to draw a
conclusion that Parts 2 and 4 of Article 31 of the Law are in
compliance with Part 1 of Article 98 of the Constitution.
7.3. Item 2 of Part 6 of Article 31 of the Law provides
that in the cases that the laws regulating the activity of
ministries do not provide otherwise, the secretary of a
ministry shall be "responsible for the economic and financial
activity of the ministry". The petitioner maintains that this
contradicts Article 98 of the Constitution. According to the
petitioner, under the Constitution it is the minister but not
the secretary of the ministry that should be responsible for
the economic and financial activity of the ministry.
It needs to be noted that the legal norm contained in Item
2 of Part 6 of Article 31 of the Law is to be interpreted as
the one establishing as to what area of activity is ascribed to
the secretary of the ministry and pointing out as to what
particular official of the ministry must take care of the
economic and financial activity of the ministry and be
responsible for it. This norm may not be interpreted as the one
establishing that a minister is not responsible for the
economic and financial activity of the ministry. A minister,
who is empowered to head his ministry by Part 1 of Article 98
of the Constitution, is also responsible for the activity of
all the ministry headed by him and for enforcement of the laws,
governmental resolutions and other legal acts. Thus, a minister
is also responsible for the economic and financial activity of
his ministry regardless of the nature of this activity and of
the fact that under the Law this area of activity is ascribed
to the secretary of the ministry, while the Law also provides
that also another subject-the secretary of the ministry-is
responsible for this activity.
On the grounds of the motives set forth, one is to
conclude that Item 2 of Part 6 of Article 31 of the Law is in
compliance with Part 1 of Article 98 of the Constitution.
VIII
On the compliance of Part 4 of Article 37 of the Law with
Part 1 of Article 95 of the Constitution.
8.1. Part 4 of Article 37 of the Law provides that "the
most important issues may be discussed before sittings of the
Government in the permanent or temporary committees of the
Government which are created by the Prime Minister and in
convocational conferences of the secretaries of ministries
organised by the Secretary of the Government". In the opinion
of the petitioner, this contradicts Part 1 of Article 95 of the
Constitution.
Part 1 of Article 95 of the Constitution provides that
"the Government of the Republic of Lithuania shall resolve the
affairs of State administration at its sittings by adopting
resolutions which must be passed by a majority vote of all
members of the Government".
The aforesaid legal norm establishes the organisational
form of the activity of the Government, i.e. questions are
decided in Government sittings; it is indicated therein as to
what kind of majority vote is necessary in order to adopt a
resolution, i.e. it must be passed by a majority vote of all
members of the Government; the type of the legal act to be
adopted by the Government is established therein, i.e. state
administration affairs are decided by adopting a resolution of
the Government. Summarising the content of the legal norm set
forth in Part 1 of Article 95 of the Constitution, one is to
draw a conclusion that this norm determines the manner as to
how state administration affairs are to be decided by the
Government.
8.2. The norm "the most important issues may be discussed
before sittings of the Government in the permanent or temporary
committees of the Government which are created by the Prime
Minister and in convocational conferences of the secretaries of
ministries organised by the Secretary of the Government"
contained in Part 4 of Article 37 of the Law regulates
relations of different nature, i.e. it determines the
organisational forms (in the case at issue this is the
discussion of issues in the permanent or temporary committees
of the Government or in convocational conferences of the
secretaries of ministries) in the course of the application
whereof it is possible to discuss the ways to decide issues, to
harmonise different opinions, to listen to considerations of
the specialists before deciding these issues at the sittings of
the Government. Thus Part 4 of Article 37 of the Law merely
regulates the preparation for discussion of these issues at the
sittings of the Government. Such an interpretation of this norm
is also confirmed by Article 39 of the Law wherein it is
pointed out that in cases when disputes arise regarding draft
legal acts encompassing the sphere of administration of several
ministries, then such questions may be discussed in a committee
of the Government.
Part 4 of Article 37 of the Law does not provide that the
questions ascribed to the competence of the Government might be
decided in the permanent or temporary committees of the
Government or in convocational conferences of the secretaries
of ministries nor that there decisions having legal effects
might be adopted. Under Part 5 of Article 39 of the Law, when a
draft resolution in the Government sitting which has been
discussed in a committee is decided, the chairman of the
sitting of the said committee shall inform about the agreements
reached by the ministers (or those reached by their authorised
representatives) or conclusions of the discussions. The Law
does not provide that the Government, deciding the questions
attributed to its competence, is bound in any way by the
agreements reached by the ministers or conclusions of the
discussions which took place nor by the provisions worded in
the conferences of the secretaries of ministries. Such a
conclusion is confirmed by said Part 1 of Article 37 of the Law
wherein it is established that the Government of the Republic
of Lithuania shall resolve the affairs of State administration
at its sittings by adopting resolutions which must be passed by
a majority vote of all members of the Government. It needs to
be noted that this norm repeats the legal norm set down in Part
1 of Article 95 of the Constitution.
On the grounds of the motives set forth, one is to
conclude that Part 4 of Article 37 of the Law is in compliance
with Part 1 of Article 95 of the Constitution.
IX
On the compliance of Part 4 of Article 45 of the Law with
Part 1 of Article 98 of the Constitution.
9.1. Part 4 of Article 45 of the Law provides that "within
his competence the Secretary of the Government may issue
instructions-resolutions to the ministries (secretaries of the
ministries) or establishments under the Government". In the
opinion of the petitioner, this contradicts Part 1 of Article
98 of the Constitution.
9.2. It needs to be noted that the post of the Secretary
of the Government is not mentioned in the Constitution. The
Seimas, when it establishes the legal status of the Secretary
of the Government, is bound by the principle of the
law-governed state formulated in the Preamble of the
Constitution and by that defining that the scope of powers
shall be circumscribed by the Constitution entrenched in Part 2
of Article 5 of the Constitution. In the context of the request
at issue, the latter principle means that it is not permitted
to grant the Secretary such powers by the laws or any other
legal acts that are ascribed to other subjects by the
Constitution, nor such powers that might deny or restrict or
impede the constitutional right of these subjects to exercise
the powers attributed to them by the Constitution.
9.3. Under Part 1 of Article 98 of the Constitution,
ministers shall head their respective ministries. The right of
the Secretary of the Government to issue
instructions-resolutions to the ministries as established in
Part 4 of Article 45 of the Law virtually means the right to
give instructions to a minister.
Under Part 2 of Article 96 of the Constitution, the
ministers shall be directly subordinate to the Prime Minister.
It means that legally a minister is not subordinate to any
other subjects, and that under the Constitution, only the Prime
Minister, and in the cases provided for by the Constitution,
the President of the Republic, may give instructions to a
minister. The Constitution does not provide any right of giving
instructions to a minister to any other subject, including the
Secretary of the Government.
After the right of the Secretary of the Government to
issue instructions-resolutions to ministries had been
established in Part 4 of Article 45 of the Law, a legal
situation was created when a subject, i.e. a minister,
subordinate only to the Prime Minister may be given
instructions to act in respective manner by another subject,
i.e. the Secretary of the Government. In addition, such legal
regulation is also groundless from the constitutional point of
view as it provides that a subject pointed out in the
Constitution, i.e. a minister, may be given instructions by a
subject who is not mentioned in the Constitution at all.
9.4. Under Part 1 of Article 31 of the Law, the secretary
of a ministry shall be the highest in rank career official in
the ministry. The secretary of a ministry shall be appointed
and dismissed by the minister. As mentioned, the competence of
a minister to head his ministry established in the Constitution
means that he has the right to adopt decisions regarding the
issues within the competence of the ministry, to give
instructions compulsory to all the employees of the ministry,
to demand that these instructions be carried out, to apply
disciplinary sanctions and other measures to those employees of
the ministry who do not carry out his instructions etc. The
powers to head the ministry presuppose personal responsibility
of the minister for all activity of the ministry and for the
proper performance of the duties of the employees of the
ministry. Meanwhile, the legal norm contained in Part 4 of
Article 45 of the Law under which the Secretary of the
Government may give instructions to the secretary of a ministry
creates such a legal situation when an official of a ministry
who is subordinate to the minister may be given instructions to
act in respective manner by an official of another state
institution (in the case at issue this is the Chancery of the
Government). Such legal regulation restricts the competence of
a minister to head his ministry established in Part 1 of
Article 98 of the Constitution.
9.5. While deciding whether Part 4 of Article 45 of the
Law whereby the Secretary of the Government is entitled to
issue instructions-resolutions to the establishments under the
Government is in conformity with the Constitution, it is
important to establish as to what establishments are considered
the ones under the Government, their legal status, and who the
heads of establishments under the Government are subordinate
to.
It needs to be noted that the Constitution employs the
concept governmental establishment (Item 3 of Article 94). The
Constitution does not particularise as to what establishments
are considered "governmental establishments", nor does it point
out the legal status of the said establishments.
The law employs various concepts, for example,
governmental establishment (Article 33), governmental
institution (Part 3 of Article 45), establishments under the
Government (Part 4 of Article 45).
Only one of these concepts is disclosed in the Law, i.e.
the concept of governmental establishment is explained therein.
Under Part 1 of Article 33 of the Law, governmental
establishments are departments, services performing the
functions of control and inventory-making, agencies,
inspectorates and other establishments which may be established
in order to decide the questions not attributed to the
functions of ministries. The concepts establishment under the
Government and governmental institution are not disclosed in
the Law.
The Law defines the legal status of governmental
establishments only: they are established by the Government;
they are established in order to decide the questions not
attributed to the functions of ministries; the establishment is
headed by its head (a department-by Director General, a
service-by the director, an inspectorate-by the chief); the
tasks, functions and rights of the establishments are
established in their regulations confirmed by the Government;
by a governmental resolution, a governmental establishment may
be subordinate to a minister (Article 33); governmental
establishments may pass legal acts whereby legal norms may be
established, amended or recognised as null and void (Part 2 of
Article 34). The Law also points out certain other elements of
the legal status of governmental establishments.
The Law does not contain any legal norms which would
provide peculiarities of the legal status of governmental
institutions or establishments under the Government and
distinguish them according to their legal status or other
elements from governmental institutions. On the contrary, on
the grounds of Part 1 of Article 45 of the Law which mentions
departments under the Government, and on the grounds of Part 1
of Article 33 of the Law whereby departments are one of the
types of governmental establishments, it is possible to draw a
conclusion that a department under the Government is a
governmental establishment. Thus, in the course of a systematic
analysis of the interrelation of the concepts governmental
establishment, governmental institution, establishment under
the Government it is possible to draw a conclusion that
establishment under the Government is to be attributed to the
group of governmental establishments and is a constituent part
of the system of governmental establishments. The concept
governmental institution is a more general one and is to be
interpreted as including governmental establishments as well.
9.6. Under Part 3 of Article 33 of the Law, a governmental
establishment shall be headed by its head. The head of a
governmental establishment decides the questions attributed to
the competence of the establishment and performs other
functions provided for by law and governmental resolutions.
Part 4 of Article 33 of the Law stipulates that "the head of a
governmental establishment shall be personally responsible for
the decision of the tasks entrusted to his establishment". The
head of a governmental establishment shall be subordinate to
the Prime Minister (Part 3 of Article 33 of the Law).
Taking account of the fact that under the Law a
governmental establishment shall be headed by its head, the
powers of the Secretary of the Government to issue
instructions-resolutions to establishments under the Government
as established in Part 4 of Article 45 of the Law virtually
mean powers to give instructions to the heads of establishments
under the Government.
As mentioned, while establishing the legal status of the
Secretary of the Government, the Seimas is bound by the
principles entrenched in the Constitution, the principle of a
law-governed state among them. In the context of the case at
issue this principle also means that it is possible, in the
area of state administration, to establish by law or other
legal act that one subject has the right to give instructions
to another subject only when there exist relations of
subordination between them. In other words, instructions may be
given to a subordinate. After it had been established in Part 4
of Article 45 of the Law that the Secretary of the Government
has the right to issue instructions-resolutions to
establishments under the Government, the said principle of the
law-governed state is violated as the Secretary of the
Government is granted the right to give instructions to the
head of an establishment under the Government who, under the
Law, is subordinate not to the Secretary of the Government but
the Prime Minister.
On the grounds of the motives set forth a conclusion is to
be drawn that Part 4 of Article 45 of the Law wherein the right
of the Secretary of the Government to issue
instructions-resolutions to ministries (secretaries of
ministries) or establishments under the Government contradicts
Part 2 of Article 5, Part 2 of Article 96 and Part 1 of Article
98 of the Constitution.
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:
1. To recognise that Parts 2 and 4 of Article 8, Part 4 of
Article 9, Item 1 of Article 22, Parts 2 and 4 and Item 2 of
Part 6 of Article 31, Part 4 of Article 37 of the Republic of
Lithuania Law on the Government of the Republic of Lithuania
are in compliance with the Constitution of the Republic of
Lithuania.
2. To recognise that Item 4 of Part 1 of Article 9 of the
Republic of Lithuania Law on the Government of the Republic of
Lithuania contradicts Part 2 of Article 5 and Item 4 of Part 3
of Article 101 of the Constitution of the Republic of
Lithuania.
3. To recognise that Item 5 of Part 2 of Article 24 of the
Republic of Lithuania Law on the Government of the Republic of
Lithuania in the scope whereby the right of the Prime Minister
to appoint and dismiss vice-ministers, the heads and deputy
heads of departments under ministries, and Item 11 of Part 2 of
Article 24 and Item 7 of Part 3 of Article 26 of the Republic
of Lithuania Law on the Government of the Republic of Lithuania
contradict Part 2 of Article 96 and Part 1 of Article 98 of the
Constitution of the Republic of Lithuania.
4. To recognise that Part 4 of Article 45 of the Republic
of Lithuania Law on the Government of the Republic of Lithuania
contradicts Part 2 of Article 5, Part 2 of Article 96 and Part
1 of Article 98 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.