Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF THE REPUBLIC OF LITHUANIA LAW
ON THE AMENDMENT AND SUPPLEMENTATION OF ARTICLES
7, 11, 15 OF THE LAW ON STATE PENSIONS, PARAGRAPHS
1 AND 4 OF ARTICLE 7 OF THE REPUBLIC OF LITHUANIA
LAW ON STATE PENSIONS AND PARAGRAPH 2 OF ARTICLE
20 OF THE LAW ON THE PRESIDENT OF THE REPUBLIC OF
LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
19 June 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Kūris, Kęstutis Lapinskas, Zenonas
Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas
Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the petitioner, the Seimas of the
Republic of Lithuania, who was Algimantas Salamakinas, a Seimas
member,
the representative of the party concerned, the Seimas of
the Republic of Lithuania, who was Jadvyga Andriuškevičiūtė, a
senior consultant at the Legal Department of the Office of the
Seimas of the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Republic of
Lithuania Law on the Constitutional Court, on 6 June 2002 in
its public hearing heard Case No. 29/2000 which originated in a
petition of a group of members of the Seimas of the Republic of
Lithuania, the petitioner, requesting to determine whether the
Republic of Lithuania Law on the Amendment and Supplementation
of Articles 7, 11, 15 of the Law on State Pensions was in
compliance with Articles 71 and 90 of the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
On 13 June 2000, the Seimas enacted the Republic of
Lithuania Law on the Amendment and Supplementation of Articles
7, 11, 15 of the Law on State Pensions (Official Gazette
Valstybės žinios, 2000, No. 52-1487; hereinafter also referred
to as the Law).
The petitioner, a group of Seimas members, requests the
Constitutional Court to determine whether the Republic of
Lithuania Law on the Amendment and Supplementation of Articles
7, 11, 15 of the Law on State Pensions is in compliance with
Articles 71 and 90 of the Constitution of the Republic of
Lithuania.
II
The request of the petitioner is based on the following
arguments.
1. Under Paragraph 2 of Article 71 of the Constitution, in
the event that the law enacted by the Seimas is not referred
back or signed by the President of the Republic within the
established period, the law shall become effective upon the
signing and official promulgation thereof by the Chairperson of
the Seimas. In the opinion of the petitioner, it is only the
Chairperson of the Seimas who enjoys independent constitutional
powers, while Deputy Chairperson of the Seimas may preside over
sittings of the Seimas (Paragraph 1 of Article 66 of the
Constitution) and, at the behest of the Seimas, temporarily
carry out the duties of the Chairperson of the Seimas (Article
89 of the Constitution).
The petitioner maintains that neither the Constitution,
nor the Statute of the Seimas and the laws provide that a law
may become effective after it is signed by a Deputy Chairperson
of the Seimas. Meanwhile, the disputed Law was signed and
officially promulgated by the First Deputy Chairperson of the
Seimas. In the opinion of the petitioner, after the disputed
Law was signed and promulgated, the procedure of signing,
promulgation and coming into force of laws which is established
in the Constitution was violated. The petitioner doubts whether
the disputed Law is in compliance with Article 71 of the
Constitution.
2. By Article 1 of the Law on the Amendment and
Supplementation of Articles 7, 11, 15 of the Law on State
Pensions, Paragraph 4 of Article 7 of the Republic of Lithuania
Law on State Pensions was amended and set forth as follows:
"The state pension of the President of the Republic shall be
granted and paid according to the Law on the President of the
Republic of Lithuania to the Chairman of the Supreme
Council-Reconstituent Seimas after he leaves state service".
The petitioner points out that, under Article 90 of the
Constitution, the financing of the President of the Republic
and of the President's residence shall be established by law,
and that to implement this constitutional provision, a special
Law on the President of the Republic of Lithuania was adopted.
In the opinion of the petitioner, the Law on the President of
the Republic of Lithuania provides for the financing of the
activities and social guarantees for the President of the
Republic only, therefore this law may not be applied in respect
to persons who have not been elected President of the Republic.
Therefore, according to the petitioner, Article 1 of the
disputed Law conflicts with Article 90 of the Constitution.
III
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
the representative of the party concerned J. Andriuškevičiūtė.
1. Under Article 76 of the Constitution, the structure and
procedure of activities of the Seimas shall be determined by
the Statute of the Seimas. The representative of the party
concerned points out that the Statute of the Seimas provides
for such a structure of the Seimas so that the Seimas would be
able to implement the sovereign will of the People in a
constructive, effective and continuous manner in any possible
situation in this country.
The representative of the party concerned maintains that
the governing body of the Seimas is the main part of structural
subdivisions of the Seimas. Its functions are established in
the Constitution.
In the opinion of J. Andriuškevičiūtė, under the
Constitution a Deputy Chairperson of the Seimas is not
prohibited from exercising the constitutional powers of the
Chairperson of the Seimas for a certain (limited) duration of
time. On the contrary, the status of the Seimas as legislative
power which is entrenched in the Constitution obligates to
regulate and coordinate the powers of the governing body of the
Seimas so that the continuity of the constitutional powers of
the Seimas might be ensured. Under Article 30 of the Statute of
the Seimas, Deputy Chairpersons of the Seimas shall discharge
the functions assigned to them by the Chairperson of the
Seimas. It is also provided in the same article that "in the
event that the Chairperson of the Seimas is temporarily absent
or has fallen ill and by reason thereof is temporarily unable
to fulfil his or her duties of office, the said duties shall be
performed by the First Deputy Chairperson of the Seimas or, on
a mandate from the Seimas, by another Deputy Chairperson for a
specified period." According to the representative of the party
concerned, this provision of the Statute of the Seimas is to be
assessed as a mandate of the Seimas for the First Deputy
Chairperson of the Seimas to perform the duties of the
Chairperson of the Seimas in the event that the Chairperson of
the Seimas is temporarily absent or has fallen ill and by
reason thereof is temporarily unable to fulfil his or her
duties of office.
The disputed Law was signed on 26 June 2000. At that time
the Chairman of the Seimas was on a trip abroad (Decision No.
2091 of 14 June 2000 of the Seimas Board). In the opinion of
the representative of the party concerned, when the First
Deputy Chairman signed and promulgated the Law, the procedure
of signing, promulgation and coming into force of laws which is
established in the Constitution was not violated.
2. Article 52 of the Constitution provides that the state
shall guarantee the right of citizens to old age and disability
pension, as well as to social assistance in the event of
unemployment, sickness, widowhood, loss of breadwinner, and
other cases provided by law. J. Andriuškevičiūtė notes that
Article 90 of the Constitution does not contain any provisions
regulating the procedure of granting of one or another pension.
The representative of the party concerned maintains that
Article 7 of the Law on State Pensions points out the top state
officials who enjoy the right to the state pension. Paragraph 4
of the same article names the Chairman of the Supreme
Council-Reconstituent Seimas as a state official of the highest
rank. The Law on State Pensions does not regulate the procedure
of granting a state pension for this official, therefore, in
order to define the procedure under which such a pension is
granted, Paragraph 4 of Article 7 of the same law makes
reference to the Republic of Lithuanian Law on the Office of
President. In the opinion of the representative of the party
concerned, Article 1 of the disputed Law is in compliance with
the Constitution.
IV
At the court hearing, the representative of the petitioner
A. Salamakinas virtually reiterated the arguments set forth in
his written explanations.
At the court hearing, the representative of the party
concerned J. Andriuškevičiūtė virtually reiterated the
arguments set forth in her written explanations.
The Constitutional Court
holds that:
I
1. On 13 June 2000, the Seimas enacted the Law on the
Amendment and Supplementation of Articles 7, 11, 15 of the Law
on State Pensions.
The petitioner doubts whether the Law on the Amendment and
Supplementation of Articles 7, 11, 15 of the Law on State
Pensions is in compliance with Articles 71 and 90 of the
Constitution.
2. Although the petitioner requests to determine whether
the Law on the Amendment and Supplementation of Articles 7, 11,
15 of the Law on State Pensions is in compliance with Article
90 of the Constitution, however, it is clear from the arguments
of the petition that the petitioner does not doubt whether the
entire disputed Law is in compliance with Article 90 of the
Constitution but only Article 1 of the Law whereby Paragraph 4
of Article 7 of the Law on State Pensions was amended and set
forth as follows: "The state pension of the President of the
Republic shall be granted and paid according to the Law on the
President of the Republic of Lithuania to the Chairman of the
Supreme Council-Reconstituent Seimas after he leaves state
service".
Taking account of the fact that by Article 1 of the Law on
the Amendment and Supplementation of Articles 7, 11, 15 of the
Law on State Pensions Paragraph 4 of Article 7 of the Law on
State Pensions was amended, one is to hold that the petitioner
doubts whether Paragraph 4 of Article 7 of the Law on State
Pensions (wording of 13 June 2000, Official Gazette Valstybės
žinios, 2000, No. 52-1487) according to the content of its
norms is in compliance with Article 90 of the Constitution.
3. Although the petitioner requests to determine whether
the Law on the Amendment and Supplementation of Articles 7, 11,
15 of the Law on State Pensions is in compliance with Article
71 of the Constitution, however, it is clear from the arguments
of the petition that the petitioner does not doubt whether the
disputed Law is in compliance with entire Article 71 of the
Constitution but only Paragraph 2 of the same article which
provides: "In the event that the law enacted by the Seimas is
not referred back or signed by the President of the Republic
within the established period, the law shall become effective
upon the signing and official promulgation thereof by the
Chairperson of the Seimas."
It is clear from the motives of the request that the
opinion of the petitioner that the disputed Law is in conflict
with the Constitution according to the procedure of signing and
promulgation which is established therein is based on the fact
that the Law was signed and officially promulgated not by the
President of the Republic or the Chairperson of the Seimas but
the First Deputy Chairperson of the Seimas.
It needs to be noted that the petitioner names Paragraph 2
of Article 71 of the Constitution as Paragraph 4 of Article 71
of the Constitution. Under Paragraph 4 of Article 71 of the
Constitution, in the event that the President of the Republic
does not sign and promulgate the laws adopted by referendum
within the established period, said laws shall become effective
upon being signed and officially promulgated by the Chairperson
of the Seimas. Meanwhile, the disputed law was adopted not by
referendum but by the Seimas. Therefore, the powers of the
Chairperson of the Seimas concerning the signing and official
promulgation of the disputed Law stem from Paragraph 2 of
Article 71 of the Constitution but not from Paragraph 4 of the
same article.
Thus the petitioner doubts whether the Law on the
Amendment and Supplementation of Articles 7, 11, 15 of the Law
on State Pensions according to the procedure of signing and
promulgation of laws which is established in the Constitution
is in compliance with Paragraph 2 of Article 71 of the
Constitution.
4. Subsequent to the petition of the petitioner, the
Constitutional Court will consider whether Paragraph 4 of
Article 7 of the Law on State Pensions (wording of 13 June
2000) according to the content of its norms is in compliance
with Article 90 of the Constitution and whether the Law on the
Amendment and Supplementation of Articles 7, 11, 15 of the Law
on State Pensions according to the procedure of signing and
promulgation of laws which is established in the Constitution
is in compliance with Paragraph 2 of Article 71 of the
Constitution.
II
On the compliance of Paragraph 4 of Article 7 of the Law
on State Pensions (wording of 13 June 2000) with Article 90 of
the Constitution.
1. Paragraph 4 of Article 7 of the Law on State Pensions
(wording of 13 June 2000) provides: "The state pension of the
President of the Republic shall be granted and paid according
to the Law on the President of the Republic of Lithuania to the
Chairman of the Supreme Council-Reconstituent Seimas after he
leaves state service".
2. The petitioner doubts whether Paragraph 4 of Article 7
of the Law on State Pensions (wording of 13 June 2000) is in
compliance with Article 90 of the Constitution which specifies:
"The President of the Republic shall have a residence. The
financing of the President of the Republic and of the
President's residence shall be established by law."
The petitioner grounds his doubts on the fact that, in his
opinion, the financing of and social guarantees to the
President of the Republic only are established in the Law on
the President of the Republic of Lithuania, therefore, this law
may not be applied in respect to persons who have not been
elected President of the Republic.
3. The Constitution shall be an integral and directly
applicable statute (Paragraph 1 of Article 6 of the
Constitution). The norms laid down in the Constitution are
harmonised with each other and constitute a whole
(Constitutional Court ruling of 9 November 1999). Article 90 of
the Constitution which was pointed out by the petitioner may
not be construed by disassociating it from the other articles
of the Constitution in which the institution of the President
of the Republic is established.
4. Article 77 of the Constitution provides:
"The President of the Republic is Head of State.
The President shall represent the State of Lithuania and
shall perform all the duties which he or she is charged with by
the Constitution and laws."
While construing Article 77 of the Constitution, the
Constitutional Court held in its ruling of 8 May 2000: "Only
one person acquires the status of the Head of State for the
period determined in the Constitution, i.e. the President of
the Republic who is elected by citizens of the Republic of
Lithuania. The legal status of the President of the Republic as
the Head of State is an individual one, different from that of
the rest of the citizens." Under the Constitution, the legal
status of the President of the Republic as Head of State is
different from that of the rest state officials.
The exceptional legal status of the President of the
Republic as Head of State is revealed in various provisions of
the Constitution which establish: the inviolability of the
person of the President of the Republic; impossibility for the
President of the Republic to be a Seimas member or to hold
another office, or receive any remuneration other than the
salary established for the President of the Republic as well as
compensation for creative activities; a duty for the person
elected President of the Republic to suspend his or her
activities in political parties and political organisations;
requirements for the candidates seeking the post of the
President of the Republic and the bases and procedure of the
elections of the President of the Republic; the oath of the
President of the Republic; the powers of the President of the
Republic, their commencement and termination, etc.
Article 89 of the Constitution provides:
"In the event that the President dies or is removed from
office according to the procedure for impeachment proceedings,
or if the Seimas resolves that the President of the Republic is
unable to fulfil the duties of office for reasons of health,
the duties of President shall temporarily be passed over to the
Seimas Chairperson. In such a case, the Chairperson of the
Seimas shall lose his or her powers in the Seimas, and at the
behest of the Seimas, the duties of Chairperson shall
temporarily be carried out by the Deputy Chairperson. In said
cases, the Seimas shall announce, within 10 days, an election
for the President of the Republic which must be held within two
months. If the Seimas cannot convene and announce the election
for the President of the Republic, the election shall be
announced by the Government.
The Chairperson of the Seimas shall act for the President
of the Republic when the President is temporarily absent beyond
the boundaries of the country or has fallen ill and by reason
thereof is temporarily unable to fulfil the duties of office.
While temporarily acting for the President of the
Republic, the Chairperson of the Seimas may neither announce
pre-term elections of the Seimas nor dismiss or appoint
Ministers without the agreement of the Seimas. During the said
period, the Seimas may not consider the issue of lack of
confidence in the Chairperson of the Seimas.
The powers of the President of the Republic may not be
executed in any other cases, or by any other persons or
institutions."
5. One is to interpret the provisions of Article 90 of the
Constitution while taking account of the fact that under the
Constitution the legal status of the President of the Republic
is an individual one, different from that of other state
officials. It has been mentioned that Article 90 of the
Constitution provides that the President of the Republic shall
have a residence and that the financing of the President of the
Republic and of the President's residence shall be established
by law. These constitutional provisions also mean that the
activities of the President of the Republic are financed and
the material as well as social guarantees for the President of
the Republic are guaranteed by the state, that the funds
necessary for this must be provided for in the state budget,
that the financing of the President of the Republic and of the
President's residence must be regulated by laws. Under the
Constitution, the legislature is not permitted to establish
such legal regulation which would deny the individual legal
status of the President of the Republic, which is different
from that of other state officials, and which might create
legal pre-conditions to equate any other person with the
President of the Republic, Head of State.
The Constitutional requirements that the financing of the
President of the Republic and of the President's residence
shall be established by law and that it is not permitted to
establish such legal regulation which would deny the individual
legal status of the President of the Republic, which is
different from that of other state officials, and which might
create legal pre-conditions to equate any other person with the
President of the Republic also mean that it is not permitted to
establish such legal regulation which would create legal
pre-conditions to equate any other person with a former
President of the Republic.
The legislature may, without violating the Constitution,
establish the financing of a former President of the Republic
while taking account of the constitutional grounds upon which
the powers of the President of the Republic were terminated and
whether the same person was re-elected or newly elected
President of the Republic.
The provisions of Article 90 of the Constitution
presuppose that an inseparable element of the financing of the
President of the Republic and a social guarantee of the Head of
State is the pension of the President of the Republic. Under
the Constitution, the legislature has a duty to establish such
a size of this pension, such conditions of its granting and
payment which would be in line with the dignity of the
President of the Republic as the Head of State and his
individual, exceptional legal status. The provisions of Article
90 of the Constitution also mean that that the legislature is
prohibited from establishing such legal regulation whereby a
person who has not been elected President of the Republic might
receive the pension of the President of the Republic.
6. One of the laws establishing the financing of the
President of the Republic is the Law on the President of the
Republic of Lithuania.
6.1. Paragraph 2 of Article 20 of the same law (Official
Gazette Valstybės žinios, 1993, No. 5-89) provides:
"Upon leaving state service, the President of the Republic
shall, for the rest of his life, be:
1) given a monthly pension equal to 50 percent of the
salary of the President of the Republic <...>."
The pension of the President of the Republic as a type of
state pensions is established in Item 1 of Paragraph 1 of
Article 1 of the Law on State Pensions (wording of 4 July
1995), while Paragraph 3 of the same article inter alia
provides that the pension of the President of the Republic
shall be granted according to a special law. Paragraph 1 of
Article 7 of the Law on State Pensions (Official Gazette
Valstybės žinios, 1994, No. 101-2018) specifies that a state
pension for the President of the Republic shall be awarded and
paid to the President of the Republic upon culmination of his
state service according to the Law on the President of the
Republic of Lithuania. Item 1 of Paragraph 2 of Article 20 of
the Law on the President of the Republic of Lithuania provides
for the amount, duration of payment and periodicity of a
pension of the President of the Republic upon culmination of
his state service.
The legal regulation established in Paragraph 2 of Article
20 of the Law on the President of the Republic of Lithuania
means that the pension of the President of the Republic is
established under this law only for the person who has been
President of the Republic and not for any other person.
6.2. The establishment of the pension of the President of
the Republic as an essential social guarantee for the Head of
State is linked, under the Constitution, with the following
conditions: (1) the person has been elected President of the
Republic, and (2) his powers have terminated.
The formula employed in Paragraph 2 of Article 20 of the
Law on the President of the Republic of Lithuania and Paragraph
1 of Article 7 of the Law on State Pensions "upon leaving state
service" means that the pension of the President of the
Republic is established (granted and paid) to a former
President of the Republic only if he is not any longer in any
other state service. Thus, the establishment (granting and
payment) of this pension is linked not only with the
termination of the powers of the President of the Republic but
also with the fact that the former President of the Republic is
not any longer in any other state service. Such legal
regulation means that the pension of the President of the
Republic is not established (granted and paid) to a former
President of the Republic if he is in any other state service.
It needs to be emphasised that the Constitution does not
link the social guarantees and financing of a former President
of the Republic with leaving of state service by the former
President of the Republic.
The legal regulation established in Paragraph 2 of Article
20 of the Law on the President of the Republic of Lithuania and
Paragraph 1 of Article 7 of the Law on State Pensions under
which the pension of the President of the Republic is
established (granted and paid) for a former President of the
Republic if he is not any longer in any other state service are
not in line with the said constitutional requirement. Paragraph
2 of Article 20 of the Law on the President of the Republic of
Lithuania and Paragraph 1 of Article 7 of the Law on State
Pensions provide for an additional condition, which is not
specified in the Constitution, to receive the pension of the
President of the Republic, i.e. leaving of state service. After
it was established that the pension of the President of the
Republic is established (granted and paid) for a former
President of the Republic if he is not any longer in any other
state service, the constitutional-social guarantee for the
President of the Republic as the Head of State to receive a
pension of the President of the Republic upon expiration of the
powers of the President of the Republic is denied. Therefore,
pre-conditions are created to deny an exceptional
constitutional status of the President of the Republic as Head
of State. Thus Paragraph 1 of Article 77 of the Constitution is
violated.
6.3. Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 20 of the Law on the
President of the Republic of Lithuania to the extent that the
establishment of the pension of the President of the Republic
is linked with leaving of state service by a former President
of the Republic and Paragraph 1 of Article 7 of the Law on
State Pensions to the extent that the establishment of the
pension of the President of the Republic is linked with leaving
of state service by a former President of the Republic conflict
with Paragraph 1 of Article 77 of the Constitution.
It needs to be noted that the petitioner does not dispute
the conformity of Paragraph 2 of Article 20 of the Law on the
President of the Republic of Lithuania and Paragraph 1 of
Article 7 of the Law on State Pensions with the Constitution.
The Constitutional Court, having established that the
provisions of a law the compliance with the Constitution of
which is not disputed by the petitioner but by which the social
relations regulated by the disputed law are interfered with
conflict with the Constitution, must state so (Constitutional
Court ruling of 14 January 2002).
7. It has been mentioned that Paragraph 4 of Article 7 of
the Law on State Pensions (wording of 13 June 2000) provides
that the state pension of the President of the Republic shall
be granted and paid according to the Law on the President of
the Republic of Lithuania to the Chairman of the Supreme
Council-Reconstituent Seimas after he leaves state service.
While deciding whether Paragraph 4 of Article 7 of the Law
on State Pensions (wording of 13 June 2000) is in compliance
with the Constitution, one must determine whether, under the
Constitution, the post of the Chairman of the Supreme
Council-Reconstituent Seimas may be equated with the
institution of the President of the Republic as Head of State.
7.1. Upon restoration of the independent State of
Lithuania on 11 March 1990 and upon adoption of the Provisional
Basic Law, the institution of the Head of State was not
provided for therein. The constitutional institution of the
Head of State was established in 1992 after the institution of
the President of the Republic was established in the
Constitution.
7.2. Article 151 of the Constitution provides: "This
Constitution of the Republic of Lithuania shall become
effective the day following the official publication of the
results of the Referendum, provided that in the Referendum more
than half of the electorate of Lithuania voted in favour
thereof."
In its ruling of 21 April 1994, the Constitutional Court
held: "The Constitution of the Republic of Lithuania was
adopted on 25 October 1992 by referendum of all citizens of the
Republic, and came into force the following day after the
official publication of the results of the referendum, i.e. on
2 November 1992."
Article 152 of the Constitution provides: "The procedure
for the enforcement of this Constitution and separate
provisions thereof shall be regulated by Law of the Republic of
Lithuania 'On the Procedure for the Enforcement of the
Constitution of the Republic of Lithuania,' which, together
with this Constitution of the Republic of Lithuania, shall be
adopted by referendum."
Article 6 of the Law "On the Procedure for the Enforcement
of the Constitution of the Republic of Lithuania" provides that
the legal situation during the period that there is no
President of the Republic shall be equivalent to the situation
which is provided for in Article 89 of the Constitution; as
necessary, the Seimas, by a majority vote of more than half of
all the members of the Seimas, may prolong the term provided in
Article 89 for a period not exceeding four months.
7.3. The post of the Chairman of the Supreme
Council-Reconstituent Seimas is not pointed out in the
Constitution under this name.
On 28 November 1996, the Seimas of the Republic of
Lithuania adopted the Declaration "On the Supreme
Council-Reconstituent Seimas of the Republic of Lithuania"
whereby it was decided and declared that "the Supreme Council
of the Republic of Lithuania that worked in 1990-1992 shall be
named the Supreme Council-Reconstituent Seimas". This
declaration presents not legal but a historical and political
evaluation of the Supreme Council of the Republic of Lithuania
that worked in 1990-1992; it does not mean that the name of the
Supreme Council that worked in 1990-1992 or titles of its
officials are changed in the legal acts passed prior to the
adoption of the said declaration.
Thus, according to its legal content, the post of the
Chairman of the Supreme Council-Reconstituent Seimas which is
pointed out in Paragraph 4 of Article 7 of the Law on State
Pensions (wording of 13 June 2000) is identical to the post of
the Chairman of the Supreme Council that worked in 1990-1992.
The post of the Chairman of the Supreme Council was
established in the Provisional Basic Law of the Republic of
Lithuania which was valid until the Constitution coming into
force. Under Article 1 of the Law "On the Procedure for the
Enforcement of the Constitution of the Republic of Lithuania",
upon the enforcement of the Constitution of the Republic of
Lithuania, the Provisional Basic Law of the Republic of
Lithuania shall become null and void.
Under Article 4 of the Law "On the Procedure for the
Enforcement of the Constitution of the Republic of Lithuania",
the powers of the Supreme Council and its deputies shall be
terminated when the elected Seimas of the Republic of Lithuania
convenes into its first sitting. Thus, under the Constitution,
from the moment when the elected Seimas of the Republic of
Lithuania convenes into its first sitting the powers of the
Chairman of the Supreme Council are terminated too.
Therefore, the post of the Chairman of the Supreme Council
is provided for in the 1992 Constitution as a provisional one,
it is linked with the transitional legal situation when the
Seimas of the Republic of Lithuania is elected but has not
convened into its first sitting. The Constitution provides for
one duty of the Chairman of the Supreme Council only, i.e. to
sign and promulgate within 15 days the Constitution of the
Republic of Lithuania and the Law "On the Procedure for the
Enforcement of the Constitution of the Republic of Lithuania",
upon their adoption by referendum (Article 154 of the
Constitution). On 6 November 1992, the Chairman of the Supreme
Council signed the Constitution.
After the newly elected Seimas of the Republic of
Lithuania convened into its first sitting, the post of the
Chairman of the Supreme Council ceased to exist according to
Article 4 of the Law "On the Procedure for the Enforcement of
the Constitution of the Republic of Lithuania".
7.4. Taking account of the fact that the institution of
the Head of State was established in the 1992 Constitution upon
the consolidation of the institution of the President of the
Republic, and the fact that under the Constitution the legal
status of the President of the Republic as Head of State is
different from that of all other state officials, as well as
the fact that the post of the Chairman of the Supreme Council
is provided in the Constitution only as a provisional one and
is linked with the transitional legal situation when the Seimas
of the Republic of Lithuania is elected but has not convened
into its first sitting, it is clear that the status of the
Chairman of the Supreme Council that worked in 1990-1992 is not
identical with the status of the President of the Republic as
Head of State established in the 1992 Constitution.
Thus, under the Constitution, the post of the Chairman of
the Supreme Council is different from the institution of the
President of the Republic as Head of State.
8. The provision of disputed Paragraph 4 of Article 7 of
the Law on State Pensions (wording of 13 June 2000) that the
state pension of the President of the Republic shall be granted
and paid according to the Law on the President of the Republic
of Lithuania to the Chairman of the Supreme
Council-Reconstituent Seimas after he leaves state service
implies that under the Law on the President of the Republic of
Lithuania the pension of the President of the Republic may be
paid not only to a former President of the Republic as former
Head of State but also to another person, i.e. the Chairman of
the Supreme Council upon his leaving state service.
Thus legal pre-conditions have been created to equate the
Chairman of the Supreme Council that worked in 1990-1992 upon
leaving state service with a former President of the Republic
as former Head of State.
Alongside, legal pre-conditions have been created to
equate the institution of the Chairman of the Supreme Council
that worked in 1990-1992 with the institution of the President
of the Republic as Head of State and thereby to deny the
constitutional status of the President of the Republic as
differing from the status of all other state officials.
It has been held in this Constitutional Court ruling that
the legislature is not permitted to establish such legal
regulation which might deny the individual legal status of the
President of the Republic, which is different from that of all
other state officials, and which might create legal
pre-conditions to equate any other person with the President of
the Republic, Head of State. By the legal regulation
established in Paragraph 4 of Article 7 of the Law on State
Pensions (wording of 13 June 2000) the constitutional status of
the President of the Republic as differing from the status of
all other state officials is denied. Thus Paragraph 1 of
Article 77 of the Constitution is violated.
It has also been held in this Ruling of the Constitutional
Court that the provisions of Article 90 of the Constitution
also mean that that the legislature is prohibited from
establishing such legal regulation whereby a person who has not
been elected President of the Republic might receive the
pension of the President of the Republic. By the legal
regulation established in Paragraph 4 of Article 7 of the Law
on State Pensions (wording of 13 June 2000) violates the
provision of Article 90 of the Constitution that the financing
of the President of the Republic shall be established by law.
9. Taking account of the arguments set forth, one is to
conclude that Paragraph 4 of Article 7 of the Law on State
Pensions (wording of 13 June 2000) conflicts with Paragraph 1
of Article 77 and Article 90 of the Constitution.
III
On the compliance of the Law on the Amendment and
Supplementation of Articles 7, 11, 15 of the Law on State
Pensions with Article 71 of the Constitution.
1. On 13 June 2000, the Seimas enacted the Law on the
Amendment and Supplementation of Articles 7, 11, 15 of the Law
on State Pensions. On 16 June 2000 the Law was delivered to the
President of the Republic. The President of the Republic
neither signed the Law and officially promulgated it, nor on a
motivated basis referred it back to the Seimas for a repeated
deliberation. The disputed Law was signed and officially
promulgated by the First Deputy Chairman of the Seimas on 26
June 2000. On 28 June 2000 the Law was published in the
official gazette Valstybės žinios and came into force as of 1
July 2000.
The Law indicates that the First Deputy Chairman
promulgates the Law on the basis of Paragraph 2 of Article 71
of the Constitution.
In the opinion of the petitioner, the First Deputy
Chairman does not enjoy constitutional powers to sign and
officially promulgate laws, therefore the disputed Law
according to the procedure of signing, promulgation and coming
into force of laws which is established in the Constitution
conflicts with Paragraph 2 of Article 71 of the Constitution.
2. It is impossible to construe the procedure of signing,
promulgation and coming into force of laws which is established
in the Constitution by dissociating the provisions of Article
71 of the Constitution pointed out by the petitioner from other
constitutional provisions, since the norms regulating the
signing, official promulgation and coming into force of laws,
as well as establishing the constitutional powers of the Deputy
Chairperson of the Seimas are set down in various articles of
the Constitution.
3. The procedure of signing, promulgation and coming into
force of laws and other legal acts adopted by the Seimas is
entrenched not only in Article 71 of the Constitution which is
pointed out by the petitioner but also Article 70, Item 24 of
Article 84 and Article 149 of the Constitution.
3.1. Article 71 of the Constitution provides:
"Within ten days of receiving a law passed by the Seimas,
the President of the Republic shall either sign and officially
promulgate said law, or shall refer it back to the Seimas
together with relevant reasons for reconsideration.
In the event that the law enacted by the Seimas is not
referred back or signed by the President of the Republic within
the established period, the law shall become effective upon the
signing and official promulgation thereof by the Chairperson of
the Seimas.
The President of the Republic must, within five days, sign
and officially promulgate laws and other acts adopted by
referendum.
In the event that the President of the Republic does not
sign and promulgate such laws within the established period,
said laws shall become effective upon being signed and
officially promulgated by the Chairperson of the Seimas."
3.2. Article 70 of the Constitution provides:
"The laws enacted by the Seimas shall be enforced after
the signing and official promulgation thereof by the President
of the Republic, unless the laws themselves establish a later
enforcement date.
Other acts adopted by the Seimas and the Statute of the
Seimas shall be signed by the Chairperson of the Seimas. Said
acts shall become effective the day following the publication
thereof, unless the acts themselves provide for another
procedure of enforcement."
3.3. Item 24 of Article 84 of the Constitution provides
that the President of the Republic shall "sign and promulgate
laws enacted by the Seimas or refer them back to the Seimas
according to the procedure provided for in Article 71 of the
Constitution."
3.4. Article 149 of the Constitution provides:
"The adopted law on an amendment to the Constitution shall
be signed by the President of the Republic and officially
promulgated within 5 days.
If the President of the Republic does not sign and
promulgate such a law in due time, this law shall become
effective when the Chairperson of the Seimas signs and
promulgates it.
The law on an amendment to the Constitution shall become
effective no earlier than one month after the adoption
thereof."
4. Paragraph 1 of Article 7 of the Constitution provides
that "any law or other statute which conflicts with the
Constitution shall be invalid." The Constitution is a legal act
having the supreme legal power and serving as a basis for the
legal system of this country. All other legal acts must be in
conformity with the Constitution. The main provisions of legal
regulation are entrenched in the Constitution, the Constitution
forms the basis for legislation (Constitutional Court ruling of
29 May 1997). The legislature enjoys discretion to
particularise and detail the provisions of the Constitution and
to regulate relations in a legal manner, which are not
regulated expressis verbis in the Constitution. It is important
that in doing so, the legislature not violate the principles
and norms of the Constitution.
Item 2 of Article 67 of the Constitution provides that the
Seimas shall enact laws. Enactment of laws is one of the most
important functions of the Seimas as the representation of the
People, its constitutional competence. The Seimas, while
enacting laws (Item 2 of Article 67 of the Constitution) and
determining the structure and procedure of activities of the
Seimas by the Statute of the Seimas (Article 76 of the
Constitution) enjoys constitutional competence to particularise
and detail the procedure of signing, promulgation and coming
into force of laws and other legal acts passed both by
referendum and the Seimas, which is established in the
Constitution. While doing so, the Seimas may not violate the
provisions of the Constitution.
5. Articles 70, 71, Item 24 of Article 84 and Article 149
of the Constitution consolidate the observance of the procedure
of signing, promulgation and coming into force of laws and
other legal acts adopted by the Seimas, which is established in
the Constitution. The observance of such a procedure is an
important pre-condition of ensuring the supremacy of the
Constitution.
Paragraph 2 of Article 7 of the Constitution provides:
"Only laws which are published shall be valid." The signing and
official publication of laws, i.e. promulgation of laws, is the
final stage of the legislative process. The signing and
official publication of laws is a necessary condition of their
coming into force.
Under the Constitution, a law which has not been signed by
the official indicated in the Constitution may not be
officially promulgated and come into force. Also, a law which
has been signed by an official who does not enjoy corresponding
constitutional powers may not be officially promulgated and
come into force.
6. In the course of a systemic construction of the
provisions of Articles 70, 71, Item 24 of Article 84 as well as
Paragraphs 1 and 2 of Article 149 of the Constitution, it
becomes clear that the signing and official promulgation of the
laws adopted by the Seimas as well as laws adopted by
referendum are always linked with the President of the
Republic.
6.1. Under the Constitution, the signing and official
promulgation (within the time limits pointed out in Article 71)
of the laws adopted by the Seimas as well as laws adopted by
referendum is competence of the President of the Republic.
Enjoying the constitutional powers to sign and officially
promulgate laws, the President of the Republic takes part in
the legislative process (Constitutional Court ruling of 19
January 1994).
6.2. The President of the Republic also has the right not
to sign a law passed by the Seimas and, within ten days of
receiving, to refer it back to the Seimas together with
relevant reasons for reconsideration (Paragraph 1 of Article 71
of the Constitution), i.e. he enjoys the right of delayed veto.
The Constitution does not provide that the President of the
Republic has the right of delayed veto in connection with laws
passed by referendum or in connection with laws amending the
Constitution. Under the Constitution, the President of the
Republic enjoys such a right only with regard to the laws
adopted by the Seimas save laws amending the Constitution.
While implementing the right of delayed veto, the President of
the Republic may also submit proposals how the law adopted by
the Seimas but not signed by the President of the Republic yet
ought to be amended or supplemented. Under Paragraph 1 of
Article 72 of the Constitution, the Seimas may reconsider and
enact laws which have been referred back by the President of
the Republic. After reconsideration by the Seimas, a law shall
be deemed enacted if the amendments and supplements submitted
by the President of the Republic were adopted, or if more than
half of all the Seimas members vote in the affirmative, and if
it is a constitutional law-if at least three-fifths of all the
Seimas members vote in the affirmative (Paragraph 2 of Article
72 of the Constitution); the President of the Republic must,
within three days, sign and forthwith officially promulgate
laws re-enacted by the Seimas (Paragraph 3 of Article 72 of the
Constitution). Such a relation between the powers of the
President of the Republic and the Seimas is an important aspect
of the separation of powers entrenched in the Constitution.
Under Article 85 of the Constitution, the President of the
Republic, implementing the powers vested in him or her, shall
issue acts-decrees. Under Paragraph 1 of Article 71 of the
Constitution, the President of the Republic referring back,
within ten days of receiving, a law passed by the Seimas, must
indicate in his or her decree relevant reasons for the
referring back of the law. Meanwhile, submission of draft
amendments and supplements to the law referred back for the
Seimas is not a constitutional duty of the President of the
Republic but his constitutional right.
6.3. The provisions of Paragraph 1 of Article 71, Item 24
of Article 84 and Paragraph 2 of Article 71 of the Constitution
are interrelated. Under the Constitution, the President of the
Republic has the right, within ten days of receiving a law
passed by the Seimas, to perform one legal action from among
those pointed out in the above provisions: either to sign and
officially promulgate the law passed by the Seimas (the right
of promulgation), or to refer it back to the Seimas together
with relevant reasons for reconsideration (the right of delayed
veto). To perform one of such legal actions is a constitutional
duty of the President of the Republic.
The formula "the law enacted by the Seimas is not referred
back or signed by the President of the Republic within the
established period" employed in Paragraph 2 of Article 71 of
the Constitution is not to be interpreted as meaning that the
President of the Republic has the right not to sign and thus
not to promulgate officially the law passed by the Seimas
without referring the said law back to the Seimas together with
relevant reasons. This formula denotes such a factual situation
when the President of the Republic, although having the
constitutional duty to sign and officially promulgate a law
passed by the Seimas within ten days of receiving it, or to
refer it back to the Seimas together with relevant reasons for
reconsideration, still, for certain reasons neither promulgates
the law passed by the Seimas nor makes use of the right of
delayed veto. Paragraph 2 of Article 71 of the Constitution
provides that in such a case the law shall be signed and
officially promulgated by the Chairperson of the Seimas.
Thus the constitutional powers of the Chairperson of the
Seimas to sign and officially promulgate laws are linked with
strict conditions established in the Constitution: the
Chairperson of the Seimas shall sign and officially promulgate
laws only in the event that the President of the Republic
neither signs nor officially promulgates them (Paragraphs 2 and
4 of Article 71, Paragraph 2 of Article 149). Besides, in order
that the Chairperson of the Seimas have the constitutional
powers to sign and officially promulgate laws adopted by the
Seimas, it is necessary that the President of the Republic not
only not promulgate these laws but also that he not use his
right of the delayed veto (save laws amending the
Constitution). Thus the powers of the Chairperson of the Seimas
to sign and officially promulgate laws are conditioned by
corresponding actions of the President of the Republic.
7. The situations when the President of the Republic
neither promulgates laws passed by the Seimas nor makes use of
his right of the delayed veto are to be interpreted under the
Constitution depending on whether the powers of the President
of the Republic are terminated, or not terminated, and whether
the President of the Republic is holding office or is
temporarily unable to perform his duties.
7.1. While establishing which official enjoys the
constitutional powers to sign and officially promulgate a law
passed by the Seimas which was neither signed nor officially
promulgated by the President of the Republic and which was not
referred back to the Seimas together with relevant reasons for
reconsideration due to the fact that the powers of the
President of the Republic are terminated, one must take account
of the provisions of Article 88 of the Constitution.
Article 88 of the Constitution provides:
"The powers of the President of the Republic shall be
terminated:
1) upon the expiration of the term of office;
2) upon holding a pre-term presidential election;
3) upon resignation from office;
4) upon the death of the President of the Republic;
5) when the Seimas removes the President from office
according to the procedure for impeachment proceedings; and
6) when the Seimas, taking into consideration the
conclusion of the Constitutional Court and by three-fifths
majority vote of all the Seimas members, adopts a resolution
stating that the President of the Republic is unable to fulfil
the duties of office for reasons of health."
It needs to be noted that the list of the bases of
termination of the powers of the President of the Republic
which is established in Article 88 of the Constitution is final
and may not be interpreted in an expanding manner.
7.1.1. Upon termination of the powers of the President of
the Republic on the bases provided for in Items 1 and 2 of
Article 88 of the Constitution, a newly elected President of
the Republic takes over the powers of the President of the
Republic. The newly elected President of the Republic has all
the powers which are provided for the President of the Republic
in the Constitution and the laws, thus including the powers to
sign and officially promulgate laws within ten days of
receiving them, which were passed by the Seimas at the time
when the previous President of the Republic was in office.
7.1.2. Upon expiration of the powers of the President of
the Republic pursuant to the bases established in Items 3, 4, 5
and 6 of Article 88 of the Constitution, there appears such a
legal situation when a new President of the Republic is not
elected yet. Paragraph 1 of Article 89 of the Constitution
provides that in the event that the President of the Republic
dies or is removed from office according to the procedure for
impeachment proceedings, or if the Seimas resolves that the
President of the Republic is unable to fulfil the duties of
office for reasons of health, the duties of President shall
temporarily be passed over to the Seimas Chairperson. In such a
case, the Chairperson of the Seimas shall lose his or her
powers in the Seimas, and at the behest of the Seimas, the
duties of Chairperson shall temporarily be carried out by the
Deputy Chairperson.
It needs to be noted that the realisation of the
constitutional right of the Chairperson of the Seimas to
temporarily perform the duties of the President of the Republic
is linked with an establishment of the legal fact, i.e. one of
the circumstances pointed out in Paragraph 1 of Article 89 of
the Constitution due to which the powers of the President of
the Republic become terminated pursuant to Items 3, 4, 5 or 6
of Article 88 of the Constitution. That the legal effects
pointed out in the Constitution may appear, this legal fact
must be established while observing due legal procedure. This
is coming into force of the act of the President of the
Republic in which he states about his resignation (Item 3 of
Article 88 of the Constitution); establishment of the fact of
death of the President of the Republic under procedure provided
for in laws (Item 4 of Article 88 of the Constitution); the
coming into force of the Seimas legal act removing the
President of the Republic from office by three-fifths majority
vote of all the Seimas members according to the procedure for
impeachment proceedings established in the Statute of the
Seimas (Item 5 of Article 88 and Article 74 of the
Constitution); the coming into force of the Seimas resolution
adopted while taking into consideration the conclusion of the
Constitutional Court and by three-fifths majority vote of all
the Seimas members and stating that the President of the
Republic is unable to fulfil the duties of office for reasons
of health (Item 6 of Article 88 and Item 2 of Paragraph 3 of
Article 105 of the Constitution).
Paragraph 2 of Article 77 of the Constitution provides
that the President shall represent the State of Lithuania and
shall perform all the duties which he or she is charged with by
the Constitution and laws. Thus, the Chairperson of the Seimas,
under Paragraph 1 of Article 89 of the Constitution temporarily
performing the duties of the President of the Republic,
discharges everything that the Constitution and laws commission
the President of the Republic to do. Thus, he has the powers to
sign and officially promulgate the laws passed by the Seimas
within 10 days of receiving them, or to refer them back to the
Seimas together with relevant reasons for reconsideration.
It needs to be noted that the Chairperson of the Seimas
who temporarily performs the duties of the President of the
Republic exercises the constitutional powers of the President
of the Republic but not those of the Chairperson of the Seimas
because he has lost them temporarily. Meanwhile, the Deputy
Chairperson of the Seimas who temporarily performs the duties
of the Chairperson of the Seimas at the behest of the Seimas
also takes over the powers of the Chairperson of the Seimas
established in Paragraph 2 of Article 71 of the Constitution to
sign and officially promulgate the laws in the cases when the
Chairperson of the Seimas who temporarily performs the duties
of the President of the Republic for certain reasons neither
signs and officially promulgates the said laws, nor refers them
back to the Seimas together with relevant reasons for
reconsideration.
One is to pay attention to the fact that the formula "at
the behest of the Seimas" employed in Paragraph 1 of Article 89
of the Constitution means not general but individual legal
regulation when a corresponding Seimas legal act commissions a
particular Deputy Chairperson of the Seimas to temporarily
perform the functions of the Chairperson of the Seimas, and
only for the period until the Chairperson of the Seimas resumes
his duties again.
In the situations provided for in Paragraph 1 of Article
89 of the Constitution, the Chairperson of the Seimas performs
the duties of the President of the Republic until a new
President of the Republic is elected and begins to fulfil his
duties. After the Chairperson of the Seimas begins to
temporarily perform the duties of the President of the
Republic, the Seimas must announce, within 10 days, an election
for the President of the Republic which must be held within two
months; if the Seimas cannot convene and announce the election
for the President of the Republic, the election shall be
announced by the Government (Paragraph 1 of Article 89 of the
Constitution). After the newly elected President of the
Republic begins to perform his duties, the Chairperson of the
Seimas ceases the temporary performance of the duties of the
President of the Republic and resumes the duties of the
Chairperson of the Seimas, while the Deputy Chairperson of the
Seimas who has been performing the duties of the Chairperson of
the Seimas at the behest of the Seimas, ceases the temporary
performance of the duties of the Chairperson of the Seimas and
resumes the duties of the Deputy Chairperson of the Seimas. The
right of official promulgation of laws passed by the Seimas and
that of the delayed veto are already enjoyed by the elected
President of the Republic.
Also such legal situations are possible when even though
one of the situations provided for in Paragraph 1 of Article 89
of the Constitution is present, but a corresponding legal fact
has not been established in accordance with due legal procedure
(thus, it has not lead to respective legal effects). In such
cases the Chairperson of the Seimas, under the Constitution,
may not temporarily perform the functions of the President of
the Republic yet, thus so far he does not enjoy temporary
powers of the President of the Republic to sign and officially
promulgate the laws passed by the Seimas within 10 days of
receiving them, or to refer them back to the Seimas together
with relevant reasons for reconsideration. In view of the
circumstances pointed out in Paragraph 1 of Article 89 and
Items 3, 4, 5 and 6 of Article 88 of the Constitution,
different legal situations are possible. For instance, in case
the Seimas resolution adopted while taking into consideration
the conclusion of the Constitutional Court and by three-fifths
majority vote of all the Seimas members and stating that the
President of the Republic is unable to fulfil the duties of
office for reasons of health has not come into force (Item 6 of
Article 88 and Item 2 of Paragraph 3 of Article 105 of the
Constitution), or the act of the President of the Republic in
which he states about his resignation has not come into force
(Item 3 of Article 88 of the Constitution), or the Seimas legal
act removing the President of the Republic from office by
three-fifths majority vote of all the Seimas members according
to the procedure for impeachment proceedings established in the
Statute of the Seimas has not come into force (Item 5 of
Article 88 and Article 74 of the Constitution), the said powers
are still vested in the President of the Republic. Until the
establishment of the fact of death of the President of the
Republic under procedure provided for in laws (Item 4 of
Article 88 of the Constitution), no one may implement the
powers of the President of the Republic to sign and officially
promulgate the laws passed by the Seimas within 10 days of
receiving them, or to refer them back to the Seimas together
with relevant reasons for reconsideration.
7.2. The Constitution regulates the legal situations when
the President of the Republic within 10 days of receiving of
the laws passed by the Seimas neither signs and officially
promulgates the said laws, nor refers them back to the Seimas
together with relevant reasons for reconsideration not due to
the reasons that the powers of the President of the Republic
are terminated but that he is temporarily unable to perform his
duties.
Paragraph 2 of Article 89 of the Constitution specifies
that the Chairperson of the Seimas shall act for the President
of the Republic when the President is temporarily absent beyond
the boundaries of the country or has fallen ill and by reason
thereof is temporarily unable to fulfil the duties of office.
It needs to be noted that the formula "the duties <...>
shall temporarily be passed over to the Seimas Chairperson"
employed in Paragraph 1 of Article 89 of the Constitution and
the formula "the Chairperson of the Seimas shall act for"
employed in Paragraph 2 of Article 89 of the Constitution are
not identical as far as their legal content is concerned. The
formula "the duties <...> shall temporarily be passed over to
the Seimas Chairperson" denotes such a legal situation when the
powers of the President of the Republic have terminated, a new
President of the Republic has not been elected, while the
duties of the President of the Republic are temporarily
performed by the Chairperson of the Seimas; as long as he
temporarily performs the duties of the President of the
Republic, the Chairperson of the Seimas does not enjoy his
powers in the Seimas. Meanwhile, the formula "the Chairperson
of the Seimas shall act for" denotes such a legal situation
when the President is temporarily absent beyond the boundaries
of the country or has fallen ill and by reason thereof is
temporarily unable to fulfil the duties of office, and due to
this the Chairperson of the Seimas temporarily acts for the
President of the Republic. While temporarily acting for the
President of the Republic, the Chairperson of the Seimas enjoys
his powers of the Chairperson of the Seimas.
A temporary absence of the President of the Republic
beyond the boundaries of the country or his illness still are
not sufficient constitutional grounds for the Chairperson of
the Seimas to temporarily act for the President of the Republic
because of the sole fact that the President of the Republic is
temporarily absent beyond the boundaries of the country or has
fallen ill he does not lose his legal status as the President
of the Republic and the powers granted to him by the
Constitution and laws. The Chairperson of the Seimas
temporarily acts for the President of the Republic only if
there are both conditions provided for in Paragraph 2 of
Article 89 of the Constitution: (1) the President of the
Republic is temporarily absent beyond the boundaries of the
country or has fallen ill; (2) by reason thereof he is
temporarily unable to fulfil the duties of office. Both these
facts must be established according to due legal procedure. To
establish such a procedure by law is a constitutional duty of
the Seimas. Such a procedure has not been established yet.
It needs to be noted that an interpretation of the
provision of Paragraph 2 of Article 89 of the Constitution that
a temporary absence of the President of the Republic beyond the
boundaries of the country or his illness are sufficient
constitutional grounds for the Chairperson of the Seimas to
temporarily act for the President of the Republic would be
groundless from the constitutional standpoint. Such an
interpretation of Paragraph 2 of Article 89 of the Constitution
would create pre-conditions to treat the Chairperson of the
Seimas who is temporarily acting for the President of the
Republic under Paragraph 2 of Article 89 of the Constitution as
Head of State, even though the President of the Republic is
Head of State and does not lose his powers granted to him by
the Constitution and laws even when he is temporarily absent
beyond the boundaries of the country or has fallen ill. The
President of the Republic is Head of State even in cases when
by reason of his temporary absence beyond the boundaries of the
country or his illness he is unable to fulfil the duties of
office although the Chairperson of the Seimas is acting for him
at this time. Under the Constitution, the Chairperson of the
Seimas, even acting temporarily for the President of the
Republic at the time when the latter by reason of his temporary
absence beyond the boundaries of the country or his illness is
unable to fulfil the duties of office, is not Head of State but
the head of one of state institutions, i.e. the Seimas. There
is only one Head of State in Lithuania, i.e. the President of
the Republic.
While temporarily acting for the President of the Republic
under Paragraph 2 of Article 89 of the Constitution, unlike
that when he temporarily performs the duties of the President
of the Republic under Paragraph 1 of Article 89 of the
Constitution, the Chairperson of the Seimas may not exercise
certain powers of the President of the Republic which are
pointed out expressis verbis by the Constitution: Paragraph 3
of Article 89 of the Constitution provides that, while
temporarily acting for the President of the Republic, the
Chairperson of the Seimas may neither announce pre-term
elections of the Seimas nor dismiss or appoint Ministers
without the agreement of the Seimas. Paragraph 3 of Article 89
of the Constitution also establishes a special guarantee for
the Chairperson of the Seimas temporarily acting for the
President of the Republic: during the said period, the Seimas
may not consider the issue of lack of confidence in the
Chairperson of the Seimas.
It needs to be noted that a temporary performance of the
duties of the President of the Republic or temporary acting for
him are possible only upon the bases pointed out in Paragraphs
1 and 2 of Article 89 of the Constitution, while the
Chairperson of the Seimas is the only state official who may
temporarily perform the duties of the President of the Republic
or to act temporarily for the President of the Republic.
Paragraph 4 of Article 89 of the Constitution specifies that
the powers of the President of the Republic may not be executed
in any other cases, or by any other persons or institutions.
7.3. Still in a different manner the Constitution
regulates the legal situations when the President of the
Republic for certain reasons neither signs and officially
promulgates the laws passed by the Seimas within 10 days of
receiving of these laws nor refers them back to the Seimas
together with relevant reasons for reconsideration, even though
his powers have not terminated and he performs his duties of
office.
As mentioned, under Paragraph 2 of Article 71 of the
Constitution, if during the indicated time (i.e. within 10 days
of receiving, as established in Paragraph 1 of the same
article) the President of the Republic neither signs and
officially promulgates said law, nor refers it back to the
Seimas together with relevant reasons for reconsideration, the
law shall become effective upon the signing and official
promulgation thereof by the Chairperson of the Seimas. Under
Paragraph 4 of Article 71 of the Constitution, in the event
that the President of the Republic does not sign and promulgate
laws adopted by referendum within the established period (i.e.
within five days, as established in Paragraph 3 of the same
article), the said laws shall become effective upon being
signed and officially promulgated by the Chairperson of the
Seimas.
These are independent powers of the Chairperson of the
Seimas to promulgate laws adopted by the Seimas. On the other
hand, the powers of the Chairperson of the Seimas to sign and
officially promulgate the laws passed by the Seimas are linked
with the legal situation when the President of the Republic,
within ten days of receiving laws passed by the Seimas, neither
signs and officially promulgates them, nor refers them back to
the Seimas together with relevant reasons for reconsideration,
even though his powers have not terminated and he performs his
duties of office. Therefore, as it has been held in this Ruling
of the Constitutional Court, the powers of the Chairperson of
the Seimas are determined by corresponding actions of the
President of the Republic. When the President of the Republic,
within ten days of receiving a law passed by the Seimas,
neither signs and officially promulgates it, nor refers it back
to the Seimas together with relevant reasons for
reconsideration, under Paragraph 2 of Article 71 of the
Constitution the Chairperson of the Seimas is empowered to
promulgate this law.
Alongside, it needs to be noted that under Paragraphs 2
and 4 of Article 71 of the Constitution, the Chairperson of the
Seimas has the powers to promulgate the laws adopted by the
Seimas which have not been signed nor officially promulgated by
the President of the Republic but he may not refer them back to
the Seimas together with relevant reasons for reconsideration.
Therefore, the powers of the Chairperson of the Seimas to
promulgate the laws adopted by the Seimas are essentially
different from the powers of the President of the Republic to
promulgate them: the President of the Republic has the right,
while the Chairperson of the Seimas has both the right and duty
to sign the laws passed by the Seimas and officially promulgate
them.
In this context it is to be noted that the Chairperson of
the Seimas implements the said powers only after the time
period of 10 and 5 days expires, which is pointed out in
Article 71 of the Constitution.
The powers of the Chairperson of the Seimas to sign and
officially promulgate the law passed by the Seimas is only the
right and duty of the Chairperson of the Seimas, his
constitutional prerogative which is realised in the event that
during the established time (i.e. within 10 days of receiving a
law) the President of the Republic neither signed the law
passed by the Seimas nor referred it back to the Seimas
together with relevant reasons for reconsideration, while the
Chairperson of the Seimas at this time neither performs the
duties of the President of the Republic nor temporarily acts
for the President of the Republic. The said powers of the
Chairperson of the Seimas are directly established in the
Constitution for the Chairperson of the Seimas.
In its rulings the Constitutional Court has held more than
once that direct establishment of powers in the Constitution
means that one state institution may not take over such powers
from another state institution, transfer or waive such powers.
Thus if the Constitution directly establishes powers for a
certain state official, he may not take over, transfer or waive
such powers except in the cases provided for in the
Constitution itself. Thus the powers of the Chairperson of the
Seimas established in the Constitution to sign and officially
promulgate the laws passed by the Seimas in the event that
within 10 days of receiving them the President of the Republic
neither signed nor referred them back to the Seimas together
with relevant reasons for reconsideration, if the Chairperson
of the Seimas has not temporarily lost his powers under
Paragraph 1 of Article 89 of the Constitution, may not be
transferred nor passed over to a Deputy Chairperson of the
Seimas or any other person.
8. The post of the Deputy Chairperson of the Seimas is
established in the Constitution (Paragraph 1 of Article 66 and
Paragraph 1 of Article 89). While establishing the structure
and procedure of activities of the Seimas by the Statute of the
Seimas, the Seimas enjoys competence to establish the number of
Deputy Chairpersons of the Seimas, their powers and status.
When the Seimas is establishing this, it is bound by the
Constitution. Neither in establishing the structure and
procedure of activities of the Seimas, as well as the powers
and status of the Deputy Chairperson of the Seimas or of Deputy
Chairpersons of the Seimas, nor in commissioning the Deputy
Chairperson of the Seimas or Deputy Chairpersons of the Seimas
to perform certain functions, the Seimas may not establish a
legal regulation (neither general nor individual) which would
compete with that established in the Constitution.
In the context of the case at issue it needs to be noted
that the post of the First Deputy Chairman of the Seimas is not
established in the Constitution. The establishment of such a
post is within the competence of the Seimas.
9. In its ruling of 24 February 1994, the Constitutional
Court held: "Conforming to the Constitution, the Chairperson of
the Seimas is an official of the Seimas in whom independent
constitutional powers are vested, and Deputy Chairperson of the
Seimas, in accordance with the first part of Article 66 of the
Constitution, may perform only one function, i.e. preside over
sittings of the Seimas. The constitutional powers of the
Chairperson of the Seimas shall be passed to the Deputy
Chairperson of the Seimas only in the case prescribed by
Article 89 of the Constitution, i.e. when he, at the behest of
the Seimas, shall temporarily perform the duties of the
Chairperson of the Seimas." Thus, the Deputy Chairperson of the
Seimas acquires the constitutional powers of the Chairperson of
the Seimas only in accordance with the bases pointed out in
Paragraph 1 of Article 89 of the Constitution.
Paragraph 1 of Article 66 of the Constitution provides
that the Deputy Chairperson of the Seimas shall preside over
sittings of the Seimas. The Deputy Chairperson of the Seimas
does not enjoy any other constitutional powers. Meanwhile, the
Deputy Chairperson of the Seimas may perform the powers
established in the Constitution for the Chairperson of the
Seimas but not for the Deputy Chairperson of the Seimas only in
the event that the Chairperson of the Seimas temporarily
performs the duties of the President of the Republic under
Paragraph 1 of Article 89 of the Constitution, and if there is
a Seimas act which has been adopted and gone into effect under
established procedure whereby a particular Deputy Chairperson
of the Seimas is commissioned to temporarily perform the duties
of the Chairperson of the Seimas.
In the event that the Chairperson of the Seimas
temporarily performs the duties of the President of the
Republic under Paragraph 1 of Article 89 of the Constitution,
the duties of the former are temporarily performed by the
Deputy Chairperson of the Seimas. In such cases the Deputy
Chairperson of the Seimas implements not the constitutional
powers of the Deputy Chairperson of the Seimas but those of the
Chairperson of the Seimas whose duties he temporarily performs
at the behest of the Seimas. The fact that under the
Constitution the Deputy Chairperson of the Seimas enjoys and
implements the constitutional powers of the Chairperson of the
Seimas is linked with the fact that the President of the
Republic is unable to perform his duties because of the
circumstances pointed out by Paragraph 1 of Article 89 of the
Constitution, and with the fact that before a newly elected
President of the Republic commences to perform his duties, the
duties of the President of the Republic are temporarily
performed by the Chairperson of the Seimas, who, under
Paragraph 1 of Article 89 of the Constitution, at this time
temporarily does not enjoy his powers in the Seimas. At that
time the Deputy Chairperson of the Seimas, who temporarily
performs the duties of the Chairperson of the Seimas, also
enjoys the powers under Paragraphs 2 and 4 of Article 71 of the
Constitution to sign and officially promulgate laws if they are
not signed and officially promulgated within the established
time by the Chairperson of the Seimas who is temporarily
performing the duties of the President of the Republic and who
does not enjoy temporarily his powers in the Seimas.
Meanwhile, in cases when the Chairperson of the Seimas
temporarily acts for the President of the Republic when the
President is temporarily absent beyond the boundaries of the
country or has fallen ill and by reason thereof is temporarily
unable to fulfil the duties of office under Paragraph 2 of
Article 89 of the Constitution, the Chairperson of the Seimas
does not lose his powers in the Seimas. Therefore, the Deputy
Chairperson of the Seimas, under the Constitution, may not
perform the constitutional duties of the Chairperson of the
Seimas in such cases.
The Seimas enjoys discretion to establish as to which
Deputy Chairperson of the Seimas must perform the powers of the
Chairperson of the Seimas when he is unable to perform his
functions for certain reasons. The Constitution does not
prohibit this. However, establishing this, the Seimas may not
commission this Deputy Chairperson of the Seimas to exercise
the powers which, under the Constitution, are enjoyed by the
Chairperson of the Seimas only, and create legal pre-conditions
for this Deputy Chairperson of the Seimas to exercise the
powers of the Chairperson of the Seimas at the time when he has
not lost his powers in the Seimas under Paragraph 1 of Article
89 of the Constitution as the Constitution provides for only
one legal situation when the powers of the Chairperson of the
Seimas are passed to the Deputy Chairperson of the Seimas, i.e.
the situation pointed out in Paragraph 1 of Article 89 of the
Constitution. The Seimas, while commissioning a particular
Deputy Chairperson of the Seimas to perform the functions of
the Chairperson of the Seimas to temporarily perform the duties
of the Chairperson of the Seimas may establish this
commissioning for the period not longer than one during which
the Chairperson of the Seimas does not enjoy his powers in the
Seimas under Paragraph 1 of Article 89 of the Constitution.
Thus, in addition, the Seimas may not establish such legal
regulation whereby the Deputy Chairperson of the Seimas (be it
the First Deputy Chairperson or any other) is commissioned to
sign and officially promulgate laws passed by the Seimas if
there is not a Seimas act which has been adopted and has come
into force by established procedure and which commissions the
Deputy Chairperson of the Seimas to temporarily perform the
powers of the Chairperson of the Seimas due to the fact that
subsequent to one of the bases pointed out in Paragraph 1 of
Article 89 of the Constitution the Chairperson of the Seimas is
performing the duties of the President of the Republic and has
temporarily lost his powers in the Seimas.
10. It has been mentioned that the President of the
Republic neither signed or officially promulgated the disputed
Law, nor on a motivated basis referred it back to the Seimas
for a repeated deliberation.
10.1. From the evidence collected in this case it is clear
that when the First Deputy Chairperson of the Seimas signed the
disputed Law, the legal situation provided for in Paragraph 1
of Article 89 of the Constitution did not exist at the time:
the President of the Republic was in office.
10.2. As mentioned, in the event that the law enacted by
the Seimas is not referred back to the Seimas on a motivated
basis for a repeated deliberation or signed by the President of
the Republic within 10 days of receiving, under Paragraph 2 of
Article 71 of the Constitution it is signed and officially
promulgated by the Chairperson of the Seimas; the powers of the
Chairperson of the Seimas to sign and officially promulgate the
laws adopted by the Seimas but not signed and officially
promulgated by the President of the Republic nor referred back
to the Seimas for a repeated deliberation is a constitutional
prerogative of the Chairperson of the Seimas. These are the
powers which, if the Chairperson of the Seimas has not
temporarily lost his powers in the Seimas under Paragraph 1 of
Article 89 of the Constitution, may not, under the
Constitution, be transferred to anyone and may not be passed
over to the Deputy Chairperson of the Seimas.
Thus after the disputed Law enacted by the Seimas had not
been referred back to the Seimas for a repeated deliberation
and had not been signed and officially promulgated by the
President of the Republic within 10 days of receiving it, under
Paragraph 2 of Article 71 of the Constitution this Law ought to
have been signed and officially promulgated by the Chairperson
of the Seimas. These powers of the Chairperson of the Seimas
may have been passed to a certain Deputy Chairperson of the
Seimas only in the case that the Chairperson of the Seimas had
temporarily performed the duties of the President of the
Republic under Paragraph 1 of Article 89 of the Constitution,
and if there had been a Seimas act which had been adopted and
had come into force by established procedure and by which a
particular Deputy Chairperson of the Seimas had been
commissioned to temporarily perform the powers of the
Chairperson of the Seimas. From the evidence collected in the
case it is clear that such a situation did not exist.
By its Decision No. 2091 of 14 June 2000, the Seimas Board
decided to approve of the trip of the Chairman of the Seimas to
Germany on 24-26 June 2000. Paragraph 4 of Article 30 of the
Statute of the Seimas (wording of 22 December 1998) specified
that in the event that the Chairperson of the Seimas is
temporarily absent or has fallen ill and by reason thereof is
temporarily unable to fulfil his or her duties of office, the
said duties shall be performed by the First Deputy Chairperson
of the Seimas or, on a mandate from the Seimas, by another
Deputy Chairperson for a specified period. From the evidence
collected in the case it is clear that at the time when the
disputed Law was signed, the First Deputy Chairman of the
Seimas was acting for the Chairman of the Seimas. However,
under the Constitution, when the Chairperson of the Seimas is
temporarily absent, his constitutional powers, thus, including
the powers granted to him by Paragraph 2 of Article 71 of the
Constitution to sign and officially promulgate laws enacted by
the Seimas but within the established period neither signed nor
referred back to the Seimas together with relevant reasons for
reconsideration by the President of the Republic, may not be
taken over neither by the First Deputy Chairperson of the
Seimas nor any other Deputy Chairperson of the Seimas.
10.3. As mentioned, the disputed Law was signed and
officially promulgated by the First Deputy Chairman of the
Seimas, and that it is indicated in the Law that that the First
Deputy Chairman promulgates the Law on the basis of Paragraph 2
of Article 71 of the Constitution.
As it has been held in this Ruling of the Constitutional
Court, under the Constitution, the fact that the Deputy
Chairperson of the Seimas enjoys and fulfils the constitutional
powers of the Chairperson of the Seimas is linked not with the
fact that the Chairperson of the Seimas is unable to exercise
his powers as the Chairperson of the Seimas but with the fact
that the President of the Republic is unable to perform his
duties by reason of the circumstances pointed out in Paragraph
1 of Article 89 of the Constitution and with the fact that
until a newly elected President of the Republic commences to
perform his duties, the duties of the President of the Republic
are temporarily performed by the Chairperson of the Seimas who
temporarily loses his powers in the Seimas for this period
under Paragraph 1 of Article 89 of the Constitution. Only in
such cases the Deputy Chairperson of the Seimas implements the
constitutional powers of the Chairperson of the Seimas, whose
powers he temporarily implements at the behest of the Seimas,
to promulgate laws passed by the Seimas.
Thus, in such a case, under the Constitution, neither the
First Deputy Chairperson of the Seimas, nor any other
Chairperson of the Seimas, had the right to sign and officially
promulgate the disputed Law. It was only the Chairperson of the
Seimas that had the constitutional right to sign and promulgate
officially the Law after the President of the Republic within
the established period neither signed and officially
promulgated nor referred it back to the Seimas together with
relevant reasons for reconsideration.
Thus, in the course of the signing and official
promulgation of the disputed Law, one disregarded the provision
of Paragraph 2 of Article 71 of the Constitution that in the
event that the law enacted by the Seimas is not referred back
or signed by the President of the Republic within the
established period, the law shall become effective upon the
signing and official promulgation thereof by the Chairperson of
the Seimas.
11. Taking account of the arguments set forth, one is to
conclude that Law on the Amendment and Supplementation of
Articles 7, 11, 15 of the Law on State Pensions according to
the procedure of its signing and promulgation conflicts with
Paragraph 2 of Article 71 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Paragraph 4 of Article 7 of the
Republic of Lithuania Law on State Pensions (wording of 13 June
2000) conflicts with Paragraph 1 of Article 77 and Article 90
of the Constitution of the Republic of Lithuania.
2. To recognise that the Republic of Lithuania Law on the
Amendment and Supplementation of Articles 7, 11, 15 of the Law
on State Pensions conflicts with Paragraph 2 of Article 71 of
the Constitution of the Republic of Lithuania.
3. To recognise that Paragraph 1 of Article 7 of the
Republic of Lithuania Law on State Pensions to the extent that
the establishment of the pension of the President of the
Republic is linked with leaving of state service by a former
President of the Republic conflicts with Paragraph 1 of Article
77 of the Constitution of Republic of Lithuania.
4. To recognise that Paragraph 2 of Article 20 of the Law
on the President of the Republic of Lithuania to the extent
that the establishment of the pension of the President of the
Republic is linked with leaving of state service by a former
President of the Republic conflicts with Paragraph 1 of Article
77 of the Constitution of 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.