Lietuviškai
Case No. 04/04
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 4 OF ARTICLE 15 OF
THE STATUTE OF THE SEIMAS OF THE REPUBLIC OF
LITHUANIA (WORDING OF 22 DECEMBER 1998) WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
1 July 2004
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, 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 a group of members of the Seimas of
the Republic of Lithuania, the petitioner, who was Algimantas
Salamakinas, a member of the Seimas,
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Jurgita Meškienė, a
senior consultant to the Legal Department of the Office of the
Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania, and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing on 31 May 2004 heard case No. 04/04 subsequent
to the petition of the petitioner, a group of members of the
Seimas, requesting to investigate as to whether the provisions
of Paragraph 4 of Article 15 of the Statute of the Seimas of
the Republic of Lithuania (wording of 22 December 1998), which
allow members of the Seimas to receive remuneration for
educational and scientific activities if they are engaged in
them not during the sittings of the Seimas, its committees and
commissions, are not in conflict with the provisions of Article
60 of the Constitution of the Republic of Lithuania, which
prohibit members of the Seimas from receiving any other
remuneration, with the exception of remuneration for creative
activities.
The Constitutional Court
has established:
I
On 5 October 1993, the Seimas of the Republic of Lithuania
adopted the Statute of the Seimas of the Republic of Lithuania,
and on 22 December 1998 set it forth in a new wording (Official
Gazette Valstybės žinios, 1999, No 5-97).
A group of members of the Seimas, the petitioner, applied
to the Constitutional Court of the Republic of Lithuania with a
petition requesting to investigate as to whether the provisions
of Paragraph 4 of Article 15 of the Statute of the Seimas of
the Republic of Lithuania (wording of 22 December 1998;
hereinafter also referred to as the Statute of the Seimas),
which allow members of the Seimas to receive remuneration for
educational and creative activities if they are engaged in them
not during the sittings of the Seimas, its committees and
commissions, were not in conflict with the provisions of
Article 60 of the Constitution of the Republic of Lithuania,
which prohibit members of the Seimas from receiving any other
remuneration, with the exception of remuneration for creative
activities.
II
The petition of the petitioner is based on the following
arguments.
1. Article 59 of the Constitution provides that while in
office, members of the Seimas follow the Constitution of the
Republic of Lithuania, the interests of the state, as well as
their own consciences, and may not be bound by any mandates.
Under Article 60 of the Constitution, the duties of a member of
the Seimas, with the exception of his duties in the Seimas, are
incompatible with any other duties in state institutions and
organisations, as well as with work in business, commercial and
other private establishments or enterprises. A member of the
Seimas may not receive any remuneration other than the
remuneration for creative activities.
In the opinion of the petitioner, if a member of the
Seimas performs any duties beyond the limits of the Seimas, he
becomes subordinate to the superior officers who then have a
possibility to influence and press him as a member of the
Seimas.
It is established in Paragraph 4 of Article 15 of the
Statute of the Seimas (wording of 22 December 1998) that a
member of the Seimas may not receive any remuneration, except
remuneration for creative activities-royalties for a piece of
art and performance of it, publications and books, material for
the radio and television broadcasts, as well as remuneration
for educational and scientific activity not during the sittings
of the Seimas, its committees and commissions.
2. The petitioner states that the notion of creative
activities defined in Article 85 of the Statute of the Seimas
(wording of 5 October 1993) comprised educational, scientific
and consultative activities of members of the Seimas, who had a
scientific degree or an educational (scientific) title, while
disputed Paragraph 4 of Article 15 of the Statute of the Seimas
(wording of 22 December 1998) no longer contained a provision
that only those members of the Seimas who had a scientific
degree or educational (scientific) title may have a possibility
to receive remuneration for educational activities. This means
that members of the Seimas may engage in educational activities
and receive remuneration for them at any educational
establishment (for example, at a school or a pre-school
establishment).
3. Paragraph 1 of Article 7 of the Constitution provides
that any law or other act, which is inconsistent with the
Constitution, is invalid. A principle of superiority of the
Constitution is entrenched in this article of the Constitution.
Article 60 of the Constitution consolidates a prohibition for a
member of the Seimas against receiving any remuneration, with
the exception of remuneration for creative activities. Having
compared the provisions entrenched in Paragraph 1 of Article
113 of the Constitution with the provisions of Paragraph 3 of
Article 60 of the Constitution, the petitioner came to a
conclusion that according to the Constitution educational
activities are separated from creative activities, while the
definition of creative activities as per Paragraph 4 of Article
15 of the Statute of the Seimas (wording of 22 December 1998)
comprises both educational and scientific activities and, in
comparison to the regulation defined in Paragraph 3 of Article
60 of the Constitution, is broadened. Therefore, in the opinion
of the petitioner, the provisions of Paragraph 4 of Article 15
of the Statute of the Seimas (wording of 22 December 1998),
which permit members of the Seimas to receive remuneration for
educational and scientific activity not during the sittings of
the Seimas, its committees and commissions, are in conflict
with the Constitution.
4. The petitioner also states that some members of the
Seimas prior to acquiring a mandate of the representative of
the Nation were engaged in agricultural activity; when holding
a position of a member of the Seimas, for which they receive
remuneration from the State Budget, they get income from
agricultural activity as well. The petitioner doubts whether
the fact that members of the Seimas may get income from
agricultural activity is not in conflict with the provision of
Article 60 of the Constitution, which prohibits a member of the
Seimas from receiving any other remuneration.
III
In the course of the preparation of the case for the
Constitutional Court hearing explanations were received from
the representatives of the Seimas, the party concerned, who
were J. Meškienė and P. Griciūnas, senior consultants to the
Legal Department of the Office of the Seimas.
1. It is mentioned in the explanations that Article 60 of
the Constitution defines one of the ways to ensure a free
mandate of a member of the Seimas, it basically regulates the
main conditions of work of a member of the Seimas: it specifies
a source of remuneration for work, consolidates limitations on
holding other positions, engaging in other activities, with the
exceptions specified in this article. The prohibition against
receipt of any other remuneration, with the exception of
remuneration for creative activities, is to be basically
related solely with a prohibition for a member of the Seimas
against being a subject to employment or service relations and
it should not be construed in a broader sense as if it means a
prohibition for a member of the Seimas to have any other income
(income from real property owned by him, income from the
activity, including agricultural activity, performed by an
economic operator owned by him, etc.). Opposite interpretation
of this provision of the Constitution could be evaluated then
as prohibiting a member of the Seimas from disposal of his
property and this would be in conflict with the principle of
inviolability of property entrenched in Article 23 of the
Constitution.
2. The Constitution is an integral act, its norms and
principles comprise a harmonious system, and none of the
provisions of the Constitution may be construed without taking
account of other provisions of the Constitution. While
investigating the compliance of disputed legal norms with
Article 60 of the Constitution, account should also be taken of
the fact that according to Paragraph 3 of Article 42 of the
Constitution those spiritual and material interests of an
author that are related to scientific, technical, cultural, and
artistic work are protected and defended by law. In the opinion
of J. Meškienė and P. Griciūnas, from Article 60, Paragraph 3
of Article 42 of the Constitution and Paragraph 4 of Article 15
(wording of 22 December 1998) of the Statute of the Seimas
follows that the notion "creative activity" is to be related
with creation of intellectual property at large, i.e. not only
with creation of pieces of art (fine art, prose, poetry, etc.)
as defined in Paragraph 4 of Article 15 of the Statute of the
Seimas, but with the results of human brainwork in general as
well.
3. The representatives of the party concerned noted that
having set, in Paragraph 4 of Article 60 of the Constitution, a
prohibition for a member of the Seimas to receive any other
remuneration, with the exception of remuneration for creative
activities, the definition of creative activities and
remuneration for them has not been revealed. Paragraph 4 of
Article 15 (wording of 22 December 1998) of the Statute of the
Seimas provides a concept of remuneration of the members of the
Seimas for creative activities: "Payments made to Seimas
members for creative activities shall include royalties for
works of art and literature, for radio and television
programmes as well as hourly salaries for educational,
scientific and consultative work performed by Seimas members
not during the sittings of the Seimas, its committees and
commissions." J. Meškienė and P. Griciūnas paid attention to
the fact that the prohibition against performing other work or
receiving other remuneration as per Constitution and laws is
set not only to the members of the Seimas, but to the members
of the Government, judges, prosecutors, public servants, as
well as the President of the Republic, however, alongside with
a general prohibition against performing other work and
receiving remuneration for it the exceptions in respect of
creative and educational activity and remuneration for it are
usually established, too.
4. In the opinion of the representatives of the party
concerned, when evaluating the relation of the disputed
provision of the Statute of the Seimas with the Constitution,
account should be taken of a purpose of a prohibition for a
member of the Seimas against performing other work and
receiving remuneration for it: the aim is to protect and ensure
a free mandate of a member of the Seimas. Therefore the concept
"creative activities" should be construed in a broader sense.
IV
In the course of the preparation of the case for the
Constitutional Court hearing explanations were received from V.
Simulik, the Chairman of the Committee on Education, Science
and Culture of the Seimas, A. Monkevičius, the Minister of
Education and Science, G. Švedas, the Vice-Minister of Justice,
V. Junokas, the Director of the Special Investigation Service,
Prof. Hab. Dr. E. Butkus, the Chairman of the Board of Science
of Lithuania, Assoc. Prof. Dr. V. Nekrošius, the Dean of the
Faculty of Law at Vilnius University, Assoc. Prof. Dr. E.
Šileikis, Department of the Constitutional and Administrative
Law of the same faculty, Prof. Dr. T. Birmontienė, the Head of
the Constitutional Law Department at the Faculty of Law of the
Law University of Lithuania, and V. Gončys, the Chairman of the
Scientist Association of Lithuania.
V
1. At the Constitutional Court hearing, the representative
of the petitioner, who was A. Salamakinas, virtually reiterated
the arguments set forth in the written explanations. He also
presented additional reasoning due to which the disputed
provision of the Statute of the Seimas is in conflict with the
Constitution. A. Salamakinas stated that the members of the
Seimas who receive income from agricultural activities are
engaged in the same activities linked with production, sales,
etc. of agricultural products, i.e. in a commercial activity,
as they did before becoming representatives of the Nation. The
representative of the petitioner doubts whether a member of the
Seimas-the representative of the Nation-may be engaged in the
same commercial, agricultural (economic, commercial) activity
as he did before becoming a representative of the Nation.
2. At the Constitutional Court hearing, the representative
of the party concerned, who was J. Meškienė, virtually
reiterated the arguments set forth in the written explanations
given by her and J. Griciūnas.
The Constitutional Court
holds that:
I
1. The petitioner requests to investigate as to whether
the provisions of Paragraph 4 of Article 15 of the Statute of
the Seimas (wording of 22 December 1998), which allow members
of the Seimas to receive remuneration for educational and
scientific activities if they are engaged in them not during
the sittings of the Seimas, its committees and commissions, are
not in conflict with the provisions of Article 60 of the
Constitution, which prohibit members of the Seimas from
receiving any other remuneration, with the exception of
remuneration for creative activities.
2. Article 15 of the Statute of the Seimas (wording of 22
December 1998) provides:
"1. Remuneration for work of a member of the Seimas shall
be paid and expenses related to activity of the said person
with the parliamentary activity shall be recovered from the
State Budget.
2. The amount of salary of a member of the Seimas and the
procedure of payment thereof shall be established by the
Seimas. A law concerning changes in the salary of a member of
the Seimas shall become effective only from the first day of a
session of newly elected Seimas.
3. Members of the Seimas, who at the same time hold office
at the Seimas, and the leader of the opposition at the Seimas
shall be paid salary for the performed work the amount of which
shall be established by law.
4. A member of the Seimas may not receive any other
salary, with the exception of payment for creative activities.
The royalties for a piece of art and performance of it,
publications and books, material for the radio and television
broadcasts, as well as remuneration for educational and
scientific activity not during the sittings of the Seimas, its
committees and commissions shall be considered the salary of a
member of the Seimas."
The disputed by the petitioner provisions of Paragraph 4
of Article 15 of the Statute of the Seimas (wording of 22
December 1998), which permit members of the Seimas to receive
remuneration for educational and scientific activity performed
not during the sittings of the Seimas, its committees and
commissions, constitute a part of the legal regulation
established in this paragraph. It needs to be noted that the
legal regulation consolidated in Paragraph 4 of Article 15 of
the Statute of the Seimas (wording of 22 December 1998) is
single, all the provisions of this paragraph are inseparably
linked to each other.
3. Article 60 of the Constitution provides:
"The duties of a member of the Seimas, with the exception
of his duties in the Seimas, shall be incompatible with any
other duties in State institutions and organisations, as well
as with work in business, commercial and other private
establishments or enterprises. During their term in office,
members of the Seimas shall be exempt from the duty to perform
national defence service.
A member of the Seimas may be appointed only either as
Prime Minister or Minister.
The work as well as all expenses connected with
parliamentary activities of a member of the Seimas shall be
remunerated from the State Budget. A member of the Seimas may
not receive any other remuneration, with the exception of
remuneration for creative activities.
The duties, rights and guarantees of the activities of the
member of the Seimas shall be established by law."
The indicated by the petitioner provisions of Article 60
of the Constitution, which prohibit members of the Seimas from
receiving any other remuneration, with the exception of
remuneration for creative activities, are set forth in
Paragraph 3 of this article.
It should be noted that the indicated by the petitioner
provisions of Paragraph 3 of Article 60 of the Constitution,
which prohibit members of the Seimas from receiving any other
remuneration, with the exception of remuneration for creative
activities, are inseparably linked with the other provisions of
the Constitution that establish the constitutional status of a
member of the Seimas (rights and duties of a member of the
Seimas, guarantees of his work at the Seimas and other
parliamentary activity, limitations applied to a member of the
Seimas, etc.).
4. When investigating, subsequent to the petition of the
petitioner, whether the provisions of Paragraph 4 of Article 15
of the Statute of the Seimas (wording of 22 December 1998),
which permit members of the Seimas to receive remuneration for
educational and scientific activity not during the sittings of
the Seimas, its committees and commissions, are not in conflict
with the Constitution, the investigation of the compliance of
the entire legal regulation established in Paragraph 4 of
Article 15 (wording of 22 December 1998) of the Statute of the
Seimas with the Constitution is necessary due to the fact that
all the provisions consolidated in Paragraph 4 of Article 15 of
the Statute of the Seimas (wording of 22 December 1998) are
linked with one another and that the provisions of Paragraph 3
of Article 60 of the Constitution, which prohibit members of
the Seimas from receiving any other remuneration, with the
exception of remuneration for creative activities, are
inseparably linked with other provisions of the Constitution,
which consolidate the constitutional status of a member of the
Seimas.
II
1. Article 4 of the Constitution provides that the Nation
executes its supreme sovereign power either directly or through
its democratically elected representatives. Paragraph 1 of
Article 33 of the Constitution provides that citizens have the
right to participate in the government of the State both
directly and through their democratically elected
representatives, as well as the right to enter into the State
service of the Republic of Lithuania under equal conditions.
Pursuant to Article 5 of the Constitution in Lithuania, the
Seimas, the President of the Republic and the Government, and
the Judiciary, execute state power (Paragraph 1); the scope of
power is limited by the Constitution (Paragraph 2); state
institutions serve the people (Paragraph 3).
2. State officials, who perform their functions while
exercising state power, bear respective authorities. The
Constitutional Court in its ruling of 25 May 2004 held that in
case state officials perform their duties according to the
Constitution, law, act in the interest of the Nation and the
State of Lithuania, they must be protected from pressure and
unreasonable interference in their activity, when fairly
exercising their duties, they must not suffer threat against
their person, their rights and freedoms.
The Constitution is the supreme law which limits state
power. The Constitution consolidates the principle of
responsible governing.
The fact that under the Constitution the Nation exercises
its supreme sovereign power directly or through its
democratically elected representatives, that the scope of power
is limited by the Constitution and that State institutions
serve the people, implies that State officials who perform
their functions while exercising state power, and all the
persons who make decisions important to the society and the
state, must follow the Constitution, law, the interests of the
Nation and the State of Lithuania. The civil Nation, which has
entrusted the management of common matters as well as
representation of the Nation and the state to the persons who
make decisions important to the society and the state due to
the office they hold or the mandate they have acquired, must be
protected from arbitrariness of state officials, from their
actions based on their personal or group interests instead of
the interests of the Nation and the State of Lithuania, from
the use of their status for their own, their close relatives'
or other persons' private benefit. In its ruling of 25 May 2004
the Constitutional Court held: "in order that the citizens-the
state community-could reasonably trust the state officials,
that it would be possible to ascertain that all the state
institutions and all the state officials follow the
Constitution as well as law and obey them, while those who do
not obey the Constitution and law would not hold the office for
which the confidence of the citizens-the state community-is
needed, a public democratic control over the activity of the
state officials comprising inter alia a possibility to remove
from office the state officials who violate the Constitution
and law, who bring their personal interests or the interests of
the group above the public interests, or who disgrace state
authority by their actions, is needed."
According to the Constitution, the legislator has a duty
to establish by legal acts such legal regulation which would
ensure that state officials, who perform their functions while
exercising state power, and all the persons, who make decisions
important to the society and the state, are able to properly
execute their authority, so that contraposition of public and
private interests would be avoided, that no legal conditions
would be created for state officials, who perform their
functions while exercising state power, and all the persons,
who make decisions important to the society and the state, to
act in the private interests or interests of a group, instead
of the interests of the Nation and the State of Lithuania, and
to use their status for the benefit of their own, their close
relatives or other persons, so that it might be possible to
effectively control how state officials, who perform their
functions while exercising state power, and all the persons,
who make decisions important to the society and the state,
follow the said requirements, and that the above-mentioned
state officials and other persons be held liable pursuant to
the Constitution and law in case they do not follow these
requirements.
3. Under the Constitution only the Seimas is the
representative of the Nation. The Seimas, as the representative
of the Nation, through which the Nation exercises its supreme
sovereign power, acts according to the powers pursuant to the
Constitution vested in it by the Nation.
The constitutional nature of the Seimas as the
representative of the Nation determines its special place
within the system of institutions of state power, as well as
its functions and powers necessary for performing the functions
of the Seimas. When exercising its constitutional powers, the
Seimas performs classical functions of a parliament of a
democratic state under the rule of law: the Seimas passes laws
(legislative function), exercises the parliamentary control
over the institutions of executive power and other institutions
(except courts) (controlling function), establishes state
institutions, appoints their heads and other state officials
and removes them from office (establishment function), adopts
the State Budget and supervises its implementation (budgetary
function), etc. (Constitutional Court ruling of 13 May 2004).
4. The Constitution establishes the organisation of state
power where each institution of state power performs its
functions incessantly. Under the Constitution, no legal
situation may occur where any institution exercising state
power fails to function.
In its ruling of 24 February 1994 the Constitutional Court
held that the Seimas must always ensure that its powers
established in the Constitution are performed incessantly and
that in any situation the representative of the Nation should
be able to constructively, efficiently and incessantly
implement the supreme sovereign power of the Nation.
The continuity of action of the Seimas, as the incessantly
acting representation of the Nation, is ensured by inter alia
the provisions of Article 59 of the Constitution, which provide
that the term of office of members of the Seimas begins to be
counted from the day that the newly-elected Seimas convenes for
the first sitting and that the period of powers of the
previously elected members of the Seimas expires at the
beginning of the sitting.
5. The Seimas is comprised of members of the
Seimas-representatives of the Nation. Each member of the Seimas
represents the entire Nation. When exercising his
constitutional duty to represent the Nation, a member of the
Seimas participates in performing all the constitutional
functions of the Seimas and exercises all the powers of a
member of the Seimas.
The continuity of the activity of the Seimas implies the
continuity of the activity of a member of the Seimas as a
representative of the Nation. Under the Constitution, legal
acts should establish such a structure and procedure of work of
the Seimas, as well as the legal status of a member of the
Seimas, which would provide for an opportunity for each member
of the Seimas to execute his constitutional duty to constantly
participate at the work of the Seimas, the representation of
the Nation, to incessantly perform his constitutional powers,
as a representative of the Nation.
It should be noted that the Constitution treats a member
of the Seimas as a professional politician, i.e. as a
representative of the Nation, whose work at the Seimas is his
professional activity.
6. Paragraph 2 of Article 55 of the Constitution provides
that the Seimas is deemed elected when not less than 3/5 of the
members of the Seimas have been elected. According to the
Constitution, the Seimas is comprised of 141 member. Thus the
Seimas is deemed elected when at least 85 members of the Seimas
have been elected. It is established in Article 65 of the
Constitution that the President of the Republic summons 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 summon the Seimas, the members of the Seimas
assemble by themselves the day following the expiration of the
15-day period. Paragraph 2 of Article 66 of the Constitution
provides that the first sitting of the Seimas directly
following the elections is opened by the eldest member of the
Seimas; it should be held that this is the only provision of
the Constitution, which expressis verbis consolidates the power
at the Seimas of one-the eldest-elected member of the Seimas,
who enjoys this authority prior to gaining all the powers of a
representative of the Nation.
It needs to be noted that according to the Constitution
election of a member of the Seimas in itself does not mean that
the elected member of the Seimas gets all the rights of a
representative of the Nation. Gaining of all rights of a
representative of the Nation as per Constitution is linked with
the oath of a member of the Seimas, which is to be taken by the
elected member of the Seimas at a sitting of the Seimas.
Paragraph 2 of Article 59 of the Constitution provides that a
member of the Seimas acquires all the rights of a
representative of the Nation only after taking an oath in the
Seimas to be faithful to the Republic of Lithuania. This
constitutional provision also means that a member of the Seimas
does not enjoy all the rights of a representative of the Nation
until he takes an oath-such an elected member of the Seimas is
not a representative of the Nation yet, he does not have powers
of a member of the Seimas and may not exercise them yet.
The constitutional provisions that a period of powers of a
member of the Seimas begins to be counted from the day that the
newly-elected Seimas convenes for the first sitting and that
the period of powers of the previously elected members of the
Seimas expires at the beginning of the sitting, which are
construed in the context of the principle of continuity of the
Seimas' activity as entrenched in the Constitution, implies
that the newly-elected Seimas as the full-fledged
representation of the Nation must begin functioning namely from
the beginning of this sitting. Since a member of the Seimas,
under the Constitution, gains all the rights of a
representative of the Nation only after taking an oath in the
Seimas to the faithful to the Republic of Lithuania, the
elected members of the Seimas, under the Constitution, must
take an oath at the first sitting of the newly-elected Seimas.
According to the Constitution the legislator must establish a
procedure of taking an oath of a member of the Seimas, so that
all the members of the Seimas take oath namely at the first
sitting of the newly-elected Seimas. An exemption could be made
to the elected members of the Seimas who are not able to arrive
at the first sitting of the newly-elected Seimas only due to
especially important and justifiable reasons (for example,
illness); under the Constitution, such an elected member of the
Seimas must take an oath at the next earliest sitting of the
Seimas after the end of existence of the especially important
and justifiable reason due to which the elected member of the
Seimas was not able to take the oath at the first sitting of
the newly-elected sitting of the Seimas.
Paragraph 3 of Article 59 of the Constitution provides
that the member of the Seimas who either does not take an oath
in accordance with the procedure established by law, or who
takes a conditional oath, shall lose the mandate of a member of
the Seimas; the Seimas shall adopt a corresponding resolution
thereon. It needs to be stressed that the Constitution does not
tolerate a situation where the elected members of the Seimas
fail to gather to the first sitting of the newly-elected Seimas
or where they gather to the sitting but fail to take the oath.
Such behaviour of the elected member of the Seimas, where he
fails to arrive at the first sitting of the newly-elected
Seimas without especially important and justifiable reasons or
arrives at the sitting but fails to take the oath, is to be
evaluated as a refusal of the elected member of the Seimas to
take the oath and should result in the legal consequences
provided for in Paragraph 3 of Article 59 of the
Constitution-loss of the mandate of a member of the Seimas. The
behaviour where the elected member of the Seimas fails to take
an oath at the next earliest sitting of the Seimas after the
end of existence of the especially important and justifiable
reason due to which the elected member of the Seimas was not
able to take the oath at the first sitting of the newly-elected
sitting of the Seimas is to be evaluated in the same way and it
should result in the same legal consequences. The Seimas must
adopt a corresponding resolution thereon.
The oath of a member of the Seimas is not a mere formal or
symbolic act (Constitutional Court ruling of 25 May 2004). It
is not only a solemn utterance of words of the oath and signing
the act of the oath. In its ruling of 25 May 2004 the
Constitutional Court held that the act of the oath of a member
of the Seimas is constitutionally legally important: when
taking the oath, the elected member of the Seimas publicly and
solemnly accepts an obligation to act in line with the
obligations of the oath and to breach the oath under no
circumstances; from the moment of taking the oath his duty
emerges to act only in the way he is obliged by the oath taken
and to breach this oath under no circumstances.
The text of the oath of a member of the Seimas is
established in Article 5 of the Republic of Lithuania Law "On
the Procedure of Entry Into Effect of the Constitution of the
Republic of Lithuania", which is a constituent part of the
Constitution. A member of the Seimas accepts an obligation to
be faithful to the Republic of Lithuania; to respect and
execute its Constitution and laws and to protect the integrity
of its lands, to strengthen, to the best of his ability, the
independence of Lithuania, and to conscientiously serve the
Homeland, and the welfare of the people of Lithuania. Paragraph
4 of Article 59 of the Constitution provides that while in
office, members of the Seimas follow the Constitution of the
Republic of Lithuania, the interests of the state, as well as
their own consciences, and may not be bound by any mandates.
Thus the oath of a member of the Seimas obligates him in his
activity to follow the Constitution, the interests of the state
and his conscience, and not to be bound by any mandates. His
duty to respect and execute the Constitution and laws, and to
conscientiously exercise the duties of a representative of the
Nation in a manner he is obliged to by the Constitution
originates from the oath of a member of the Seimas. In its
ruling of 25 May 2004 the Constitutional Court held that the
Constitution implies the notion of discretion and conscience of
a member of the Seimas, according to which no gap should exist
between the discretion of the member of the Seimas and the
conscience of the member of the Seimas, and the requirements of
the Constitution, as well as values entrenched in and protected
by the Constitution: according to the Constitution the
discretion of a member of the Seimas and his conscience should
be oriented towards the Constitution, and the interests of the
Nation and the State of Lithuania.
7. Paragraph 4 of Article 59 of the Constitution
consolidates one of the major elements of the constitutional
legal status of a member of the Seimas-a free mandate of a
member of the Seimas as a representative of the Nation. The
Constitution consolidates a free mandate of a member of the
Seimas and prohibits an imperative mandate.
The essence of a free mandate of a member of the Seimas is
the right of the representative of the Nation to exercise the
rights given and duties imposed on him while not limiting this
freedom by mandating by the electors, and political
requirements of the parties or organisations which nominated
him. The free mandate of a member of the Seimas also means that
the electors have no right to revoke a member of the Seimas.
Revocation of a member of the Seimas prior to the expiry of the
term of office would constitute one of the elements of an
imperative mandate. Democratic states do not recognise an
imperative mandate of a member of the parliament, and,
therefore, a possibility to revoke a member of the parliament
from office prior to the expiry of the term (Constitutional
Court rulings of 26 November 1993, 9 November 1999, 25 January
2001, and 30 May 2003).
A free mandate of a member of the Seimas entrenched in the
Constitution reveals the essence of the constitutional legal
status of a member of the Seimas as a representative of the
Nation, and is inseparably linked with the equality of members
of the Seimas. Under the Constitution, each member of the
Seimas represents the entire Nation. All the members of the
Seimas are equal, and they should have the same opportunities
to participate in the activity of the Seimas. In case the
rights of a member of the Seimas were differentiated in a way
that in fact an unequal opportunities for them to participate
in the Seimas' work are established, the basic principle of
this representative institution, the equality of members of the
parliament, would be violated, and thus members of the Seimas
would not have equal opportunities to represent the Nation at
the Seimas, and to express the interests of the entire Nation.
The principles of the free mandate of a member of the Seimas
and equality of members of the Seimas should be followed when
setting the internal structure of the Seimas as well. The free
mandate of a member of the Seimas entrenched in the
Constitution is one of guarantees of independency of activities
and equality of Seimas members (Constitutional Court rulings of
26 November 1993, 9 November 1999, and 25 January 2001).
It should also be noted that the free mandate of a member
of the Seimas entrenched in the Constitution may not be
understood as a permission to act only at one's own discretion,
to act only according to one's own conscience, and to ignore
the Constitution (Constitutional Court ruling of 25 May 2004).
It was mentioned that the Constitution implies the notion of
discretion and conscience of a member of the Seimas, according
to which no gap should exist between the discretion of a member
of the Seimas and the conscience of a member of the Seimas, and
the requirements of the Constitution, as well as the values
entrenched in and protected by the Constitution. The free
mandate of a member of the Seimas is not a privilege of a
representative of the Nation, it is rather one of the legal
measures ensuring that the Nation will be properly represented
in its democratically elected representation, the Seimas, and
that the representation of the Nation, the Seimas, will act
only in the interests of the Nation and the State of Lithuania.
Therefore the free mandate of a member of the Seimas may not be
used in the interests other than those of the Nation and the
State of Lithuania. It may not be used for the private benefit
of a member of the Seimas, his close relatives or other
persons, for their personal interests or the interests of a
group, in the interests of political parties or political
organisations, public or other organisations, and other
persons, which nominated or supported the candidate to the
office of a member of the Seimas, territorial communities,
electors of the electoral district of elections of a member of
the Seimas, i.e. particular interests. Under the Constitution,
a member of the Seimas is not a representative of political
parties or political organisations, public or other
organisations, interest groups, territorial communities or
electors of his electoral district at the Seimas, but he
represents the entire Nation.
The constitutional consolidation of the free mandate of a
member of the Seimas, as well as the essence of the Seimas as
the representation of the Nation, implies the constitutional
duty of the Seimas to set by legal acts the legal regulation,
which would provide no conditions for using the free mandate of
a member of the Seimas in the interests other than the
interests of the Nation and the State of Lithuania, i.e. for
the private benefit of a member of the Seimas, his close
relatives or other persons, for their personal interests or the
interests of a group, in the interests of political parties or
political organisations, public or other organisations, and
other persons, which nominated or supported the candidate to
the office of a member of the Seimas, territorial communities,
electors of the electoral district of elections of a member of
the Seimas. The legislator should set the legal regulation
which would ensure that a member of the Seimas work only for
the Nation and the State of Lithuania, and avoid the
confrontation of the interests of the Nation and the State of
Lithuania with private interests of a member of the Seimas, his
close relatives or other persons (personal interests or the
interests of a group), interests of political parties or
political organisations, public or other organisations, and
other persons, which nominated or supported the candidate to
the office of a member of the Seimas, territorial communities,
electors of the electoral district of elections of a member of
the Seimas. Alongside, the activity of a member of the Seimas
should be legally regulated in the manner so that it would be
possible to efficiently control whether such confrontation does
not exist, whether a member of the Seimas does not use his free
mandate in the interests other than the interests of the Nation
and the State of Lithuania. In case he disregards the
aforementioned requirements of the Constitution, the member of
the Seimas should be held liable pursuant to the Constitution
and laws.
8. The most important rights of a member of the Seimas as
a representative of the Nation are expressis verbis or
implicitly consolidated in the Constitution itself. Some
constitutional rights are exercised by a member of the Seimas
as a single person. For example, a member of the Seimas has the
right of legislative initiative at the Seimas (Paragraph 1 of
Article 68 of the Constitution); he also has the right to
submit an inquiry to the Prime Minister, the Ministers, and the
heads of other State institutions formed or elected by the
Seimas, and the said persons must respond orally or in writing
at the session of the Seimas in accordance with the procedure
established by the Seimas (Paragraph 1 of Article 61 of the
Constitution). A member of the Seimas also has the
constitutional right to aspire to an office at the Seimas; this
right comprises the right to hold the office at the Seimas,
which is directly specified in the Constitution, i.e. the
office of the President of the Seimas or his deputy, as well as
to hold other offices at the Seimas, which are provided for in
the Statute of the Seimas, which, under the Constitution,
establishes the structure and procedure of activities of the
Seimas, and has the power of law (Article 76 of the
Constitution). A member of the Seimas exercises other rights
set forth in the Constitution together with other members of
the Seimas. For example, not less than a group of 1/4 of the
members of the Seimas has the right to present to the Seimas a
proposal to alter or supplement the Constitution of the
Republic of Lithuania (Paragraph 1 of Article 147 of the
Constitution); a group of not less than 1/5 of the members of
the Seimas may interpellate the Prime Minister or a Minister
(Paragraph 2 of Article 61 of the Constitution), and apply to
the Constitutional Court (Paragraph 1 of Article 106 of the
Constitution); a group of members of the Seimas may initiate
the impeachment procedure against the President of the
Republic, the President and justices of the Constitutional
Court, the President and justices of the Supreme Court, the
President and judges of the Court of Appeal, as well as members
of the Seimas (Article 74 of the Constitution, Constitutional
Court ruling of 15 April 2004). Members of the Seimas have the
right on equal basis to participate when the Seimas, as the
representation of the Nation, exercises its powers of the
representation of the Nation established in Article 67 of the
Constitution, other articles of the Constitution, and the laws.
The free mandate of a member of the Seimas entrenched in the
Constitution constitutes a compulsory condition of exercising
the constitutional duty of a member of the Seimas to represent
the entire Nation.
According to Paragraph 4 of Article 60 of the
Constitution, the rights of a member of the Seimas are
established by law. Thus, the Constitution provides for two
levels of legal regulation of the rights of a member of the
Seimas: the rights established in the Constitution itself, and
the rights established in laws by the legislator. The
aforementioned provision of Paragraph 4 of Article 60 of the
Constitution implies the duty of the Seimas to provide in laws
the rights of a member of the Seimas, which would ensure an
opportunity to members of the Seimas to all-sufficiently
exercise their constitutional duty as the one of
representatives of the Nation. When establishing this
provision, the legislator must follow the norms and principles
of the Constitution; for example, he may not establish the
rights of a member of the Seimas, which would unreasonably
grant priorities to members of the Seimas, since the
requirement of inter alia Paragraph 2 of Article 29 of the
Constitution setting forth that a person may not be granted
privileges due to his social status would be ignored.
In this context it needs to be noted that, as already
mentioned, under Article 76 of the Constitution, the structure
and procedure of activities of the Seimas is established by the
Statute of the Seimas. It is obvious that the legal regulation
of the structure and procedure of activities of the Seimas is
linked with the establishment of the rights of a member of the
Seimas and therefore the aforementioned provisions of Paragraph
4 of Article 60 of the Constitution and Article 76 of the
Constitution may not be opposed to each other. For example, in
its ruling of 13 May 2004 the Constitutional Court held that
the abovementioned provision of Article 76 of the Constitution
may not be construed only linguistically. It was also held in
the same ruling of the Constitutional Court that in order that
it could properly discharge its constitutional functions, the
Seimas may require to form also such structural sub-units,
which would enjoy powers in regard of various state and
municipal institutions, their officials, and other persons, and
that in case the powers of authority of a structural sub-unit
of the Seimas in regard to institutions beyond the
accountability to the Seimas, their officials, and other
persons needs to be established, such powers of a structural
sub-unit of the Seimas should be established by law. In the
same way, where the rights of the member of the Seimas comprise
certain powers of the member of the Seimas in regard to
institutions beyond the accountability to the Seimas, their
officials, and other persons, then, under the Constitution,
such powers should be established by the law. However, to the
extent that the rights of the member of the Seimas are linked
only with the activity of the member of the Seimas at the
Seimas, i.e. the structure and procedure of activities of the
Seimas itself, they may be established in the Statute of the
Seimas.
9. The Constitution is an integral act (Paragraph 1 of
Article 6 of the Constitution). When construing this provision
of the Constitution, the Constitutional Court has held more
than once that all the provisions of the Constitution are
interrelated and compose a harmonious system, that a balance
exists between the values consolidated in the Constitution,
that it is not permitted to construe any provision of the
Constitution literally, that no provision of the Constitution
may be construed so that the content of another constitutional
provision could be distorted or denied, since thus the essence
of the whole constitutional regulation would be distorted and
the balance of the constitutional values would be disturbed.
A free mandate of a member of the Seimas is entrenched in
the Constitution, as well as the constitutional duty of a
member of the Seimas to represent the Nation, and his powers
are to be construed with regard to the whole constitutional
legal regulation. On the one hand, the constitutional legal
status of a member of the Seimas and its separate elements (the
rights and duties of a member of the Seimas, the guarantees of
his work at the Seimas and other parliamentary activities,
limitations applied in respect to a member of the Seimas, etc.)
are to be construed not in isolation from each other but as a
whole system, since each element of the constitutional legal
status of a member of the Seimas may be constitutionally
correctly understood only if linked with the other elements of
the constitutional legal status of a member of the Seimas and
evaluated as a part of a single system-the constitutional legal
status of a member of the Seimas. On the other hand, the
constitutional legal status of a member of the Seimas and its
separate elements are to be construed in the context of other
constitutional institutes as well, inter alia in the context of
the entrenched in the Constitution personal rights and
freedoms-the right of ownership, inviolability of property, and
protection of the rights of ownership (Article 23 of the
Constitution), the right to freely choose a job and business
(Paragraph 1 of Article 48 of the Constitution), freedom of
economic activity and initiative (Paragraph 1 of Article 46 of
the Constitution), the citizens' right to freely form
societies, political parties, and associations (Article 35 of
the Constitution), the employees' right to establish trade
unions aimed at protection of their professional, economic, and
social rights and interests (Article 50 of the Constitution),
etc. In the context of the case at issue it needs to be noted
that provisions of the Constitution, which consolidate the
constitutional legal status of a member of the Seimas, may not
be construed in such a way that the aforementioned as well as
other constitutional rights and freedoms of a person would be
violated. Still, not of the less importance is the fact that
provisions of the Constitution, which consolidate the said and
other personal rights and freedoms, may not be construed in a
way, which would deny or distort the content of the
constitutional legal status of the member of the Seimas as a
representative of the Nation, i.e. they may not be interpreted
so that conditions would be created for confronting the public
and private interests of a member of the Seimas, for
non-performance or non-due performance of his constitutional
duty to represent the entire Nation, to act in the interests of
the Nation and the State of Lithuania, to use the free mandate
of a member of the Seimas for the private benefit of a member
of the Seimas, his close relatives or other persons, for their
personal interests or the interests of a group, in the
interests of political parties or political organisation,
public or other organisations, and other persons, which
nominated or supported the candidate to the office of a member
of the Seimas, territorial communities, electors of the
electoral district of elections of a member of the Seimas,
rather than the interests of the Nation and the State of
Lithuania. Therefore, neither the provisions of the
Constitution which consolidate the constitutional legal status
of a member of the Seimas, nor its provisions, in which the
person's rights and freedoms are entrenched, may be construed
only literally, by applying only the linguistic (verbal) method
and ignoring other constitutional provisions and their links
with inter alia the provisions of the Constitution which
consolidate the constitutional status of a member of the Seimas
and/or a person's rights and freedoms, while ignoring the
interrelation of the content of these constitutional
provisions, the balance of the constitutional values, and the
essence of the constitutional legal regulation, as a single
whole.
The Constitutional Court officially construes the
Constitution (Constitutional Court rulings of 30 May 2003, 29
October 2003, and 13 May 2004). When examining the compliance
of the laws and other legal acts (parts thereof) with the
Constitution, the Constitutional Court develops the concept of
provisions of the Constitution, which is presented in its
previous rulings and other acts, and reveals new aspects of the
regulation consolidated in the Constitution, which are
necessary for investigation of a particular case
(Constitutional Court ruling of 30 May 2003). The official
constitutional doctrine inter alia reveals the interrelation of
various constitutional provisions, the relationship of their
content, the balance between the constitutional values, and the
essence of the constitutional legal regulation as a single
whole. Under the Constitution, the Constitutional Court, which
investigates the compliance of laws and other legal acts (parts
thereof) with the Constitution, is assigned with the task to
reveal within its jurisprudence also the relationship between
the content of the provisions of the Constitution establishing
the constitutional legal status of a member of the Seimas and
the content of the provisions of the Constitution establishing
a person's rights and freedoms, and the relationship between
the constitutional protection of the public interest embodied
in the free mandate of a member of the Seimas and the
constitutional protection of the private interests of the
person who bears a mandate of a member of the Seimas.
It needs to be stressed that it would be basically
impossible to reveal the interrelation between various
constitutional provisions, the relationship between their
content, the balance of the constitutional values, the essence
of the constitutional legal regulation as a single whole, if
one ignores the aims of the constitutional regulation,
including inter alia also the aims constituting the basis of
functions of each construed constitutional provision, and the
purpose in regard to the overall constitutional regulation.
10. In order that a member of the Seimas would be able to
incessantly perform his duties, as a representative of the
Nation, the Constitution itself establishes not only certain
rights, but the duties of a member of the Seimas, too. Some
duties of a member of the Seimas are formulated in the
Constitution expressis verbis. The other duties of a member of
the Seimas are not expressis verbis formulated in the
Constitution, but they are entrenched implicitly-they are
derived from the constitutional legal status of a member of the
Seimas as a representative of the Nation. Still, some other
duties of a member of the Seimas are established not in the
Constitution, but in the legal acts of lower power-laws and the
Statute of the Seimas.
The Constitution expressis verbis consolidates only some
duties of a member of the Seimas. For example, a member of the
Seimas must follow the taken oath of the member of the Seimas,
which obligates him to be faithful to the Republic of
Lithuania, to respect and execute its Constitution and laws and
to protect the integrity of its lands, to strengthen, to the
best of his ability, the independence of Lithuania, and to
conscientiously serve the Homeland, and the welfare of the
people of Lithuania (Paragraph 2 of Article 59 of the
Constitution, Article 5 of the Republic of Lithuania Law "On
the Procedure of Entry Into Effect of the Constitution of the
Republic of Lithuania"). Paragraph 4 of Article 59 of the
Constitution provides for a duty of a member of the Seimas,
when he is in office, to follow the Constitution of the
Republic of Lithuania, the interests of the state, as well as
his own conscience, and not to be bound by any mandates.
The other constitutional duties of a member of the Seimas
are formulated in the Constitution as a certain limitations
applied in regard to a member of the Seimas-incompatibility of
the office of a member of the Seimas with other offices or a
job, except the cases established in the Constitution, and the
prohibition for a member of the Seimas from receiving other
remuneration, save the exceptions established in the
Constitution (Article 60 of the Constitution); these
limitations in regard to members of the Seimas are established
in the Constitution in order to ensure the free mandate of a
member of the Seimas as a representative of the Nation, and the
continuity of his work at the Seimas and engaging in other
parliamentary activities.
The members of the Seimas who hold the offices at the
Seimas, which are directly specified in the Constitution, i.e.
the President of the Seimas and his deputy, beyond their duties
of a member of the Seimas as representatives of the Nation also
have other duties and respective rights expressis verbis
specified in the Constitution. For example, the President of
the Seimas has a duty (and the right by the same) to sign the
adopted law on an alteration of the Constitution if the
President of the Republic does not sign it during the indicated
time (Paragraph 2 of Article 149 of the Constitution), to sign
the laws adopted by the Seimas if they are not signed and
referred back by the President of the Republic to the Seimas
for reconsideration within the period indicated in the
Constitution (Paragraphs 2 and 4 of Article 72 of the
Constitution), to sign other acts adopted by the Seimas and the
Statute of the Seimas (Paragraph 2 of Article 70 of the
Constitution), to temporarily hold the office of the President
of the Republic in the cases provided for in the Constitution
(Paragraph 1 of Article 89 of the Constitution), or to
temporarily substitute the President of the Republic (Paragraph
2 of Article 89 of the Constitution), to be a member of the
State Defence Council (Paragraph 1 of Article 140 of the
Constitution), upon the motion of not less than one-third of
all the members of the Seimas to convene extraordinary session
of the Seimas (Paragraph 2 of Article 64 of the Constitution),
to propose three candidates for justices of the Constitutional
Court (Paragraph 1 of Article 103 of the Constitution). The
President of the Seimas and his deputy also has the duty (by
the same-the right) to preside over sittings of the Seimas
(Paragraph 1 of Article 66 of the Constitution).
It needs to be noted that certain constitutional duties of
a member of the Seimas are not expressis verbis formulated in
the Constitution, however, they are inseparably linked with
activities of the member of the Seimas at the Seimas and other
parliamentary activity. For example, the constitutional purpose
of the Seimas as the representation of the Nation, as well as
the constitutional legal status of a member of the Seimas as a
representative of the Nation, implies the constitutional duty
of a member of the Seimas to represent the Nation, thus also
his duty to participate in the sittings of the Seimas, and
activity of the structural sub-units, a member of which he is.
Under Paragraph 4 of Article 60 of the Constitution, the
duties of a member of the Seimas are established by law. Thus,
the Constitution provides for two levels of the legal
regulation of the duties of members of the Seimas: the duties
established in the Constitution itself and the duties
established in laws by the legislator. The said provision of
Paragraph 4 of Article 60 of the Constitution implies the duty
of the Seimas to establish in laws such duties of a member of
the Seimas which would ensure that members of the Seimas will
all-sufficiently exercise their constitutional duty as the one
of representatives of the Nation. When establishing the
aforementioned provisions, the legislator is bound by the
Constitution.
As already mentioned, under Article 76 of the
Constitution, the structure and procedure of activities of the
Seimas are established by the Statute of the Seimas. The legal
regulation of the structure and of procedure of activities of
the Seimas is linked with the establishment of the duties of a
member of the Seimas as well. Under the Constitution, the
duties of a member of the Seimas, which are not related to the
work of a member of the Seimas at the Seimas, i.e. with the
structure and procedure of activities of the Seimas, must be
established by law. However, to the extent that the duties of a
member of the Seimas are linked only with the work of a member
of the Seimas at the Seimas, i.e. with the structure and
procedure of activities of the Seimas, they may be established
in the Statute of the Seimas.
11. One of the elements of the constitutional legal status
of a member of the Seimas is the guarantees of the work of a
member of the Seimas at the Seimas and other parliamentary
activity. When evaluating the entirety of the entrenched in the
Constitution guarantees of the work of a member of the Seimas
at the Seimas and other parliamentary activity it is to be held
that in this regard the legal status of a member of the Seimas,
a representative of the Nation, is different in essence from
the constitutional legal status of other citizens and other
state officials.
11.1. A system of guarantees of the work of a member of
the Seimas at the Seimas and other parliamentary activity inter
alia comprises the immunities of a member of the Seimas.
Article 62 of the Constitution provides that the person of a
member of the Seimas is inviolable (Paragraph 1), a member of
the Seimas may not be held criminally liable, arrested, or have
his freedom otherwise restricted without the consent of the
Seimas (Paragraph 2).
11.2. Paragraph 3 of Article 60 of the Constitution
provides that a member of the Seimas may not be persecuted for
his vote or speeches in the Seimas, and he may be held liable
in accordance with the common procedure only for personal
insult or slander.
11.3. The Constitution also provides for a special
procedure of revoking the mandate of a member of the Seimas:
under Article 74 of the Constitution, the Seimas may, by a 3/5
majority vote of all the members of the Seimas, revoke the
mandate of a member of the Seimas who has grossly violated the
Constitution, breached the oath, or committed a crime.
11.4. Paragraph 1 of Article 60 of the Constitution inter
alia provides that during his term in office, a member of the
Seimas shall be exempt from the duty to perform national
defence service.
11.5. According to Paragraph 3 of Article 60 of the
Constitution, the work of a member of the Seimas shall be
remunerated from the State Budget. When construing this
constitutional provision, the Constitutional Court in its
ruling of 9 November 1999 held that the salary of a Seimas
member must be of sufficient size, paid regularly, as well as
the fact that it is not permitted that during the term of
office of the Seimas the salary of a Seimas member is decreased
from what it was at the beginning of the Seimas' term of office
by establishing it by law. Such constitutional regulation of
the salary of a Seimas member is established so that a Seimas
member might properly perform his duties of a representative of
the Nation.
11.6. The Constitution also consolidates the guarantee of
parliamentary activities of a member of the Seimas, which
ensures that the expenses connected with parliamentary
activities of a member of the Seimas are remunerated from the
State Budget (Paragraph 3 of Article 60 of the Constitution).
11.7. Under Paragraph 4 of Article 60 of the Constitution,
the guarantees of activities of a member of the Seimas are
established by law. Thus, the Constitution sets forth two
levels of legal regulation of the system of guarantees of the
work of a member of the Seimas at the Seimas and other
parliamentary activities: the guarantees established in the
Constitution itself, and the guarantees established in laws by
the legislator. It needs to be stressed that the aforementioned
provision of Paragraph 4 of Article 60 of the Constitution
implies the duty of the Seimas to provide in laws the system of
guarantees of the work of a member of the Seimas at the Seimas
and other parliamentary activities, which would ensure a
possibility to members of the Seimas to all-sufficiently
exercise their constitutional duty as the one of
representatives of the Nation. When establishing this, the
legislator must pay heed to the norms and principles of the
Constitution; he inter alia may not establish any guarantees,
which would unreasonably grant priorities to members of the
Seimas, as the requirement of Paragraph 2 of Article 29 of the
Constitution that a person may not be granted privileges due to
his social status would be disregarded.
It was already mentioned that according to Article 76 of
the Constitution the structure and procedure of activities of
the Seimas is established by the Statute of the Seimas. The
legal regulation of the structure and procedure of activities
of the Seimas is linked also with the establishment of the
guarantees of the work of a member of the Seimas at the Seimas
and other parliamentary activities. If the guarantees of the
parliamentary activity of a Seimas member are related to the
duties, which arise from this, to institutions beyond the
accountability to the Seimas, their officials, and other
persons, such guarantees, according to the Constitution, must
be established by law. However, to the extent that the
guarantees of the work of a member of the Seimas at the Seimas
and other parliamentary activities are linked only with the
activity of a member of the Seimas at the Seimas, i.e. the
structure and procedure of activities of the Seimas itself,
they may be established in the Statute of the Seimas.
11.8. It was already mentioned that the activity of the
Seimas as the representation of the Nation and of members of
the Seimas as representatives of the Nation is incessant.
Paragraph 1 of Article 64 of the Constitution provides that
every year the Seimas convenes for two regular sessions-one in
spring and one in autumn; the spring session begins on March
10th and ends on June 30th, and the autumn session begins on
September 10th and ends on December 23rd; the Seimas may decide
to prolong a session. Paragraph 2 of Article 64 of the
Constitution provides for extraordinary sessions: extraordinary
sessions are convened by the President of the Seimas upon the
motion of not less than one-third of all the members of the
Seimas, and in cases provided for in the Constitution, by the
President of the Republic.
According to the parliamentary tradition of the democratic
states, a parliamentary session comprises sittings of the
parliament and sittings of the parliamentary committees and
other structural sub-units held in between them. A form of
sessions of the Seimas is sittings of the Seimas and sittings
of structural sub-units of the Seimas held in between them. It
was held in this Ruling of the Constitutional Court that the
participation at the sittings of the Seimas is a constitutional
duty of a member of the Seimas. According to the Constitution
the Seimas has a duty to establish the legal regulation and act
in the way which ensures the performance of the constitutional
duty of members of the Seimas-the duty to participate at the
sittings of the Seimas. It means that the Seimas inter alia has
to establish such legal regulation which would provide that a
Seimas member's non-participation at the sittings of the Seimas
is possible only in case of especially important and
justifiable reasons. It should be stressed that the behaviour
of a member of the Seimas when he does not participate at the
sittings of the Seimas without an especially important and
justifiable reason is to be evaluated as failure to perform the
constitutional duty of a member of the Seimas, a representative
of the Nation; under the Constitution, such non-participation
at the sittings of the Seimas cannot but result in respective
legal consequences (legal liability) in regard to the member of
the Seimas who does not participate at the sittings of the
Seimas without an especially important and justifiable reason.
The constitutional purpose of the Seimas as the representation
of the Nation, the constitutional duty of a member of the
Seimas to represent the Nation, and the constitutional legal
status of a member of the Seimas also imply that the legal
regulation should be established which would facilitate the
ensuring of efficient control over the participation of members
of the Seimas at the sittings of the Seimas, constant and
systematic provision of information to the public (the
electors) about the participation of members of the Seimas at
the sittings of the Seimas and their public votes on the issues
discussed by the Seimas.
On the other hand, sessions of the Seimas are not a single
form of activity of the Seimas, and participation at sessions
of the Seimas is not a single form of the work of a Seimas
member at the Seimas or his parliamentary activity. It was
already mentioned that according to the Constitution the
activity of a member of the Seimas as a representative of the
Nation is incessant; each member of the Seimas should have an
opportunity to exercise his constitutional duty to constantly
participate at the work of the Seimas, the representation of
the Nation, and incessantly perform his constitutional powers
as the ones of a representative of the Nation. Therefore,
according to the Constitution, members of the Seimas perform
their duties as representatives of the Nation beyond sessions
of the Seimas as well. The entrenched in the Constitution
principle of continuity of activity of the Seimas as the
representation of the Nation implies that a period of time
between sessions of the Seimas is not vacation of members of
the Seimas, nor their other time for rest. It needs to noted
that the Republic of Lithuania Law on Work Conditions of a
Member of the Seimas provides that duration of work hours of a
member of the Seimas is not limited (Article 3). Besides, no
other legal acts provide for any vacation of a member of the
Seimas at all. In this context it needs to be stressed that
from Paragraph 1 of Article 49 of the Constitution, which
provides that each working human being has the right to rest
and leisure, as well as annual paid holidays, and from
Paragraph 4 of Article 60 of the Constitution, which provides
that the duties, rights and guarantees of the activities of a
member of the Seimas are established by law, stems the duty of
the legislator to establish duration of annual paid holidays of
a member of the Seimas and other conditions by law. It should
also be noted that establishment of holidays of a member of the
Seimas by law would also ensure the absence of preconditions to
constitutionally unreasonably treat the time between sessions
of the Seimas as the time equal to holidays or other time for
rest of a member of the Seimas.
11.9. The social guarantees of persons, who are former
members of the Seimas, are also an element of the
constitutional legal status of a member of the Seimas, the
essence of which is revealed by the free mandate of a member of
the Seimas as a representative of the Nation. The
Constitutional norms and principles must also be followed when
establishing such guarantees by law.
12. It has been held in this Ruling of the Constitutional
Court that certain constitutional duties of a member of the
Seimas are formulated in the Constitution as certain
limitations applied in regard to a member of the
Seimas-incompatibility of the duties of a member of the Seimas
with other duties or a job, save the exceptions established in
the Constitution, and a prohibition for a member of the Seimas
from receiving other remuneration, except the cases established
in the Constitution; these limitations are meant to ensure the
free mandate of a member of the Seimas as a representative of
the Nation, and the continuity of his work at the Seimas and
other parliamentary activities. When evaluating the entirety of
limitations entrenched in the Constitution in regard to a
member of the Seimas, it is to be held that in this respect the
constitutional legal status of a member of the Seimas, a
representative of the Nation, is different in essence from the
constitutional legal status of other citizens and it determines
particularities of implementation of particular rights of a
person entrenched in the Constitution, which a member of the
Seimas enjoys as a human being and citizen.
It was already mentioned that under Article 60 of the
Constitution the duties of a member of the Seimas are
incompatible with any other duties in State institutions and
organisations, as well as with work in business, commercial and
other private establishments or enterprises (Paragraph 1); a
member of the Seimas may be appointed only either as Prime
Minister or Minister (Paragraph 2); a member of the Seimas may
not receive any remuneration, with the exception of
remuneration for creative activities (Paragraph 3).
It was mentioned also that the Constitution is an integral
act, that all its provisions are interrelated and constitute a
harmonious system, that no provision of the Constitution may be
construed only literally, that no provision of the Constitution
may be construed so that the content of another constitutional
provision should be distorted or denied, since thus the essence
of the whole constitutional regulation would be distorted and
the balance of the constitutional values would be disturbed.
Therefore, the provision of Paragraph 1 of Article 60 of the
Constitution that the duties of a member of the Seimas are
incompatible with any other duties in state institutions and
organisations, as well as with work in business, commercial and
other private establishments or enterprises is to be
interpreted while taking account of the provision of this
paragraph that a member of the Seimas may hold office at the
Seimas, the provision of Paragraph 2 of this article that a
member of the Seimas may be appointed only either as Prime
Minister or Minister, and the integral constitutional legal
regulation, thus of all the constitutional provisions
entrenching the constitutional status of a member of the Seimas
(the rights and duties of a member of the Seimas, guarantees of
his work at the Seimas and other parliamentary activities,
limitations applied in regard to a member of the Seimas, etc.),
of the constitutional provisions entrenching the rights of a
person, as well as the purposes of the constitutional
regulation, which comprise inter alia the purposes on which the
functions of legal regulation established in Paragraph 1 of
Article 60 of the Constitution are based, the purposes of this
regulation in regard to the entire integral constitutional
legal regulation, of the provision of Paragraph 1 of Article 60
of the Constitution that a member of the Seimas may hold office
at the Seimas, of the provision of Paragraph 2 of this article
that a member of the Seimas may be appointed only either as
Prime Minister or Minister, and also of the entire integral
constitutional legal regulation in general; the purposes of the
constitutional regulation should be taken account of when
interpreting the provision of Paragraph 3 of Article 60 of the
Constitution that a member of the Seimas may not receive any
remuneration, with the exception of remuneration for creative
activities also.
The purpose of the legal regulation established in
Paragraph 1 of Article 60 of the Constitution is to ensure the
free mandate of a member of the Seimas as a representative of
the Nation, and continuity of his work at the Seimas and other
parliamentary activities, to guarantee that a member of the
Seimas shall act in the interests of the Nation and the State
of Lithuania rather than their personal interests or the
interests of a group, or the interests of political parties or
political organisation, public or other organisations, and
other persons, which nominated or supported the candidate to
the office of a member of the Seimas, territorial communities,
electors of the electoral district of elections of a member of
the Seimas, that a member of the Seimas will not use his status
and the free mandate for the private benefit or the benefit of
his close relatives or other persons, that each member of the
Seimas will have an opportunity to exercise his constitutional
duty to constantly participate at the work of the Seimas, the
representation of the Nation, to incessantly perform his
constitutional powers, as a representative of the Nation. This
purpose would never be reached or conditions preventing the
accomplishment of this purpose would be created if a member of
the Seimas had an opportunity to hold another office to be
engaged in other work, with the exception of the offices
expressis verbis specified in the Constitution, as well as the
offices which may be held upon the implication of the
Constitution; this purpose would never be reached or conditions
preventing the accomplishment of this purpose would also be
created if a member of the Seimas received remuneration other
than that specified in the Constitution.
13. One of the limitations imposed on a member of the
Seimas by Article 60 of the Constitution is the incompatibility
of the duties of a member of the Seimas with other offices and
work, save the exception expressis verbis established or
implicitly set down in the Constitution.
13.1. The formula "the duties of a member of the Seimas,
with the exception of his duties in the Seimas" is used in
Paragraph 1 of Article 60 of the Constitution. Under the
Constitution, a member of the Seimas may hold certain other
offices in the Seimas as well.
The offices in the Seimas directly specified in the
Constitution, which may be taken by a member of the Seimas, are
the office of the President of the Seimas and his deputy.
It was already mentioned that under Article 76 of the
Constitution the structure and procedure of activities of the
Seimas are established by the Statute of the Seimas. Therefore,
the Statute of the Seimas may establish other offices in the
Seimas, which may be taken by certain members of the Seimas,
the offices in the governing body of the Seimas, as well as the
offices of the heads of structural sub-units of the Seimas and
other offices in the Seimas, which may be held by a member of
the Seimas only; the Statute of the Seimas may also provide for
an opportunity for a member of the Seimas to take certain
offices in inter-parliamentary and other international
institutions, which may only be taken by a member of the
Seimas-the formula "his duties in the Seimas" of Article 60 of
the Constitution comprises these offices as well.
Thus, the formula "his duties in the Seimas" of Article 60
of the Constitution comprises: (1) the office of the President
of the Seimas, Deputy President of the Seimas; (2) the offices
of a member of the Seimas at the Seimas, which are taken by a
member of the Seimas pursuant to the Statute of the Seimas in
the governing body of the Seimas or when leading a structural
sub-unit of the Seimas, as well as other offices, which may be
taken in the Seimas only by a member of the Seimas; (3) the
offices of a member of the Seimas in inter-parliamentary and
other international institutions, which may only be taken by
member of the Seimas.
13.2. According to the Constitution a member of the
Seimas, who is the President of the Seimas, ex officio is a
member of the State Defence Council (Article 140 of the
Constitution); in the event that the President of the Republic
dies, resigns or is removed from office in accordance with the
procedure for impeachment proceedings, or in cases when the
Seimas decides that the state of health of the President of the
Republic does not permit him to hold office, his office is
temporarily held by the President of the Seimas (Paragraph 1 of
Article 89 of the Constitution); the President of the Seimas
substitutes for the President of the Republic when the latter
is temporarily abroad or has fallen ill and by reason thereof
is temporarily unable to hold office (Paragraph 2 of Article 89
of the Constitution).
13.3. It was already stated that according to Paragraph 2
of Article 60 of the Constitution a member of the Seimas may be
appointed only either as Prime Minister or Minister. Thus,
according to the Constitution a member of the Seimas may at the
same time hold the office of the Prime Minister or Minister.
In its rulings the Constitutional Court has held more than
once that the Constitution consolidates the principle of
separation of powers. The constitutional principle of
separation of powers inter alia means that persons performing
their functions in implementation of one state power may not at
the same time perform functions of implementation of another
state power, i.e. the persons performing functions in
implementation of the legislative, executive or judicial power
may not at the same time perform functions in implementation of
the executive and judicial, legislative and judicial, or
legislative and executive power respectively, save the
exceptions provided for in the Constitution. It needs to be
noted that the provision of Paragraph 2 of Article 60 of the
Constitution that a member of the Seimas may be appointed only
either as Prime Minister or Minister is an exception
established in the Constitution where the same person may
perform functions both of the legislative (as a member of the
Seimas) and executive (as a member of the government-Prime
Minister or Minister) power.
13.4. It should be noted that incompatibility of duties of
a member of the Seimas with other duties or work in various
aspects is expressis verbis consolidated in other articles of
the Constitution as well. For example, under the Constitution,
the duties of a member of the Seimas are incompatible with the
office of the President of the Republic (Paragraph 1 of Article
83 of the Constitution), with military service or alternative
service, as well as with being an officer, a non-commissioned
officer or re-enlistee of the national defence system, of the
police and the Interior, or being a paid official of
paramilitary and security service (Article 141 of the
Constitution), with the office of a judge as well as a justice
of the Constitutional Court (Paragraph 1 of Article 113,
Paragraph 3 of article 104 of the Constitution), the office of
a member of a municipal council (Constitutional Court rulings
of 24 December 2002, 30 May 2003).
13.5. The constitutional norms and principles may not be
construed on the basis of acts adopted by the legislator or
other law-making subjects, as thus the supremacy of the
Constitution in the legal system would be denied
(Constitutional Court ruling of 12 July 2001).
It needs to be stressed that concepts "duties" and "work"
used in Paragraph 1 of Article 60 of the Constitution are
constitutional concepts, they bear the constitutional content
and may not be construed only following the definition of
similar concepts in laws and other legal acts (for example,
legal acts regulating labour or public service relations). In
this regard the duties and work specified in Paragraph 1 of
Article 60 of the Constitution are not to be linked with
employment or similar contracts or agreements.
13.6. The notion "duties" used in the formula "duties in
State institutions and organisations" in Paragraph 1 of Article
60 of the Constitution and the notion "work" used in the
formula "work in business, commercial and other private
establishments or enterprises" in this paragraph are to be
construed with regard to the purpose of the constitutional
legal regulation established in this article, and all the other
constitutional provisions consolidating the constitutional
status of a member of the Seimas. It should be noted that
taking an office implies that the person who takes the said
office must perform certain work, fulfil certain other
functions, perform certain other tasks, etc., while performing
work implies that a person must take certain office, fulfil
certain other functions, perform certain other tasks, etc. The
notion "duties" used in the formula "duties in State
institutions and organisations" in Paragraph 1 of Article 60 of
the Constitution and the notion "work" used in the formula
"work in business, commercial and other private establishments
or enterprises" in this paragraph means activity. Therefore, in
the context of the whole constitutional integral regulation
these concepts may not be confronted, and they may not be
construed literally, by ignoring their correlations.
The notion "duties" used in the formula "duties in State
institutions and organisations" in Paragraph 1 of Article 60 of
the Constitution comprises any activity in a Lithuanian state,
municipal, foreign or international establishment, enterprise
or organisation, or representing such an establishment,
enterprise or organisation, if this activity is linked with
taking office, performing work, holding the office, fulfilment
of other functions, performing other tasks, holding a so-called
office of honour, etc. (including participation in collegial
management, control and other bodies), irrespective of whether
this activity is of permanent, temporary, or one-time
(episodic) type, whether this activity is remunerated in any
payment or other form, or not, whether this activity is
referred to in legal acts as offices or any other term, whether
this activity is duties of a leader or not, whether the person
is elected or appointed to the office, whether this activity is
registered by any legal contract or other legal act, or
performed without any legal contract or legal act, save the
exceptions expressis verbis established or implicitly provided
for in the Constitution. The notion "work" used in the formula
"work in business, commercial and other private establishments
or enterprises" in Paragraph 1 of Article 60 of the
Constitution in its turn comprises any activity in a
Lithuanian, foreign or international private establishment,
enterprise or organisation, or representation of such an
establishment, enterprise or organisation, if this activity is
linked with performing work, taking the office, performing
service, fulfilment of other functions, performing other tasks,
holding a so-called office of honour, etc. (including
participation in collegial management, control and other
bodies), irrespective of whether this activity is of permanent,
temporary, or one-time (episodic) type, whether this activity
is remunerated in any payment or other form, or not, whether
this activity is referred to in legal acts as work or any other
term, whether or not any other persons engaged in any activity
in this establishment, enterprise or organisation exist,
whether this activity is duties of a leader or not, whether the
person is elected or appointed to the office, whether the
activity is registered by any legal contract or other legal
act, or performed without any legal contract or legal act; the
notion "work" used in the formula "work in business, commercial
and other private establishments or enterprises" of Paragraph 1
of Article 60 of the Constitution also comprises any other
private profit-making activity, as well as any profit-making
activity engaged in without establishing an enterprise,
establishment or organisation.
13.7. It was mentioned that the constitutional legal
status of a member of the Seimas, a representative of the
Nation, is different in essence from the constitutional legal
status of other citizens and determines particularities of
exercising certain rights of a person entrenched in the
Constitution, which a member of the Seimas enjoys as a human
being and citizen.
13.7.1. The legal regulation established in Paragraph 1 of
Article 60 of the Constitution is to be construed with regard
to the provisions of Articles 46 and 48 of the Constitution.
Paragraph 1 of Article 46 of the Constitution stipulates
that Lithuania's economy is based on the right of private
ownership and individual freedom of economic activity and
initiative. Paragraph 1 of Article 48 of the Constitution inter
alia stipulates that each human being may freely choose a job
and business.
The constitutional legal status of a member of the Seimas,
a representative of the Nation, comprising inter alia the
limitations established in Paragraph 1 of Article 60 of the
Constitution, determines particularities of exercising of the
person's rights consolidated in Article 46 and 48 of the
Constitution, which are enjoyed by him as any other human
being. It needs to be noted that the provisions of Paragraph 1
of Article 60 of the Constitution, with regard to the purpose
of the legal regulation established in this paragraph, mean
also that the member of the Seimas who is a founder, owner,
co-owner or shareholder of a private enterprise, establishment
or organisation, may not take an office, perform work, perform
service, fulfil other functions, perform other tasks, hold a
so-called office of honour, etc. (including participation in
collegial management, control and other bodies) in the said
establishment, enterprise or organisation, or represent it.
This is incompatible with the constitutional legal status of a
member of the Seimas: having acquired all the rights of the
representative of the Nation, the member of the Seimas decides
that he will be a representative of the Nation and will not be
engaged in business, commerce or other profit-making private
activity.
It was mentioned that under the Constitution a member of
the Seimas, a representative of the Nation, must properly
fulfil his constitutional duty to represent the whole Nation,
and to act only in the interests of the Nation and the State of
Lithuania, and that the activity of a member of the Seimas, a
representative of the Nation, is incessant. The member of the
Seimas must use his mandate of a representative of the Nation
only in the interests of the Nation and the State of Lithuania
rather than a private benefit of his own or his close relatives
or other persons. From the established in Paragraph 1 of
Article 60 of the Constitution incompatibility of the duties of
a member of the Seimas with work at business, commercial or
other private establishments or enterprises, as well as work at
establishments or enterprises the founder, owner, co-owner or
shareholder of which is the member of the Seimas, originates a
prohibition to engage, in any form, in business, commerce or
other profit-making private activity. When deciding whether a
certain activity of the member of the Seimas is engagement in
business, commerce, etc., every time account should be taken of
the content of the activity and all the other circumstances.
13.7.2. The legal regulation established in Paragraph 1 of
Article 60 of the Constitution is to be construed with regard
to the provisions of Article 23 of the Constitution as well.
Article 23 of the Constitution provides that property is
inviolable (Paragraph 1), that the rights of ownership are
protected by laws (Paragraph 2), that property may only be
seized for the needs of society in accordance with the
procedure established by law and is justly compensated for
(Paragraph 3).
In its rulings the Constitutional Court has held more than
once that the inviolability of property and its protection
entrenched in Article 23 of the Constitution inter alia mean
that the owner has the right to posses the property owned by
him, to use it, and to dispose of it, as well as the right to
demand that other persons not violate his aforementioned
rights, and the state has a duty to defend and protect the
property form unlawful encroachment.
The legal regulation established in Paragraph 1 of Article
60 of the Constitution may not be construed in the way denying
the essence of the consolidated in Article 23 of the
Constitution right of ownership, enjoyed by a member of a
Seimas as well. Thus, the provisions of Paragraph 1 of Article
60 of the Constitution, consolidating the incompatibility of
the duties of a member of the Seimas with inter alia engaging
in business, commerce or other profit-making private activity,
may not be construed as the ones meaning the prohibition for a
member of the Seimas from using his property, getting income
from it, possessing the property owned by him, etc., as well as
from concluding contracts related hereto also. However, such an
activity of a member of the Seimas, when he uses his property,
gets income from it, possesses the property owned by him, etc.,
as well as concludes contracts related hereto, according to the
Constitution, may not take a form of business, commerce or
other profit-making private activity, as this would violate the
prohibition consolidated in Paragraph 1 of Article 60 of the
Constitution for a member of the Seimas to engage, in any form,
in business, commerce or other profit-making private activity.
13.7.3. It needs to be noted that the activity of a member
of the Seimas, when he uses his property, gets income from it,
possesses the property owned by him, etc., and concludes
contracts related hereto, in each area may have certain
specific features. The legislator, while paying heed to the
Constitution, has a duty to establish by law such regulation,
wherefrom one could decide in each case, what activity of the
member of the Seimas constitutes only the use of his property,
getting income from it, management of the property owned by
him, and concluding contracts related hereto, i.e. the
activity, which the member of the Seimas is not prohibited from
by the Constitution, and what activity already constitutes
business, commerce or other profit-making private activity,
i.e. the activity, which the member of the Seimas is prohibited
from by the Constitution.
It should be noted that in order to ensure that the
established in Paragraph 1 of Article 60 of the Constitution
prohibition for a member of the Seimas from being engaged in
business, commerce or other profit-making private activity, a
duty of the legislator originates from the Constitution to
establish the legal regulation which would provide an
opportunity in each case to verify whether the use of the
property of a member of the Seimas, getting income from it,
management of the property owned by him, and concluding
contracts related hereto is not business, commerce or other
profit-making private activity. Such control should be
efficient, public, permanent rather than of a one-time type.
When establishing by law the constitutionally necessary
legal regulation, the legislator must also establish the ways
of providing legal conditions of preventing the origination of
incompatibility of the duties of a member of the Seimas with
engaging in business, commerce or other profit-making private
activity. Such legal regulation would also create
pre-conditions for avoiding the use of the mandate of a member
of the Seimas in the interests of private benefit of certain
persons, i.e. particular interests, rather than the interests
of the Nation and the State of Lithuania, and confrontation of
the private interests of a member of the Seimas with the
interests of the Nation and the State of Lithuania, i.e. public
interests; this would strengthen the Nation's trust in members
of the Seimas as representatives of the Nation and the Seimas
as the representation of the Nation. Such control is an
important condition of implementation of the provision of Item
7 of Article 63 of the Constitution, under which the powers of
a member of the Seimas become terminated if he takes up, or
does not resign from, employment which is incompatible with the
duties of a member of the Seimas.
Attention should be drawn to the fact that various methods
of ensuring the incompatibility of the duties of a member of
the parliament and engagement in business and control over it
are established in foreign democratic states under the rule of
law, for example trust of possession of property of a member of
the parliament or other compulsory transfer to other persons,
anonymous possession of such property, control over agreements
concluded between the enterprises, the founder, owner, co-owner
or a shareholder of which is a member of the parliament, and
establishments, enterprises, and organisations of the public
sector, etc.
13.8. The established in the Constitution principle of
incompatibility of duties of a member of the Seimas with other
offices and work, as well as prohibition for a member of the
Seimas from receiving any other remuneration, save the
exceptions provided for in the Constitution, is to be construed
in the context of rights and freedoms of persons, entrenched in
the Constitution, inter alia the right of citizens to freely
form societies, political parties, and associations (Article 35
of the Constitution), and the employees' right to establish
trade unions (Article 50 of the Constitution).
13.8.1. Article 35 of the Constitution provides:
"Citizens shall be guaranteed the right to freely form
societies, political parties, and associations, provided that
the aims and activities thereof are not inconsistent with the
Constitution and laws.
No one may be forced to belong to any society, political
party, or association.
The establishment and activities of political parties and
other political and public organisations shall be regulated by
law."
13.8.2. Article 35 of the Constitution consolidates one of
the basic rights of a citizen of a democratic state-the right
of union, or freedom of association. The right of union is one
of the guarantees of civil and political action. In its ruling
of 21 December 2000 the Constitutional Court held that the
constitutional right to freely form societies, political
parties and associations is manifold, its content is composed
of the right to form societies, political parties and
associations, the right to join them and take part in their
activities, as well as the right not to be a member of any
societies, political parties or associations, and the right to
leave such unions; the Constitution guarantees the right to
decide of one's own free will whether to belong or not to
belong to a certain society, political party or association; an
individual either implements or does not implement this right
of his own free will; and the free will is a fundamental
principle of membership in various societies, political
parties, and associations.
The unions provided for in the Constitution are based on
free-will membership and are found and act in the interests of
their members. The basic element of the constitutional legal
status of the unions provided for in the Constitution is their
autonomy in regard to the state governing bodies, and other
state or municipal institutions, in other words-the public
power. Only being autonomous in regard to the state governing
bodies, and other state and municipal institutions the unions
may efficiently act as an important element of the civil
society, be a form of self-expression of citizens of a
democratic state and a guarantee of public activity. The
autonomy of unions in regard to the public power implies inter
alia their right, while following laws, to independently
regulate by their own acts (articles of association, statutes,
etc.) their internal order.
13.8.3. The notions "society", "political party",
"association" consolidated in Paragraphs 1 and 2 of Article 35
of the Constitution, as well as the notion "other political and
public organisations" consolidated in Paragraph 3 of the same
article, express diversity of unions which are founded on a
voluntary basis in order to meet the needs of their members in
the political, economic, cultural, social areas and other
spheres of life (Constitutional Court ruling of 21 December
2000). The Constitution recognises and supports diversity of
unions as publicly acting institutionalised groups of
interests. Separate legal regulation is consolidated in the
Constitution for certain types of unions, for example trade
unions.
13.8.4. The constitutional right to freely form unions is
linked with an opportunity to take various offices in such
associations; the said opportunity is a derivative from the
constitutional right to freely form unions. The procedure of
taking the said offices in unions is established not by the
state, but by acts regulating the internal order (articles of
association, statutes, etc.) of the union itself (which,
according to the Constitution, is autonomous in regard to
public power, as it has been already mentioned).
Under the Constitution, no legal regulation artificially
or unreasonably limiting the freedom of forming unions and
their activity may be established as this would violate the
constitutional value-the right of union (freedom of
association). Therefore, under the Constitution the legislator
may not establish any such legal regulation which would limit
the right of a member of the Seimas to be a member of the union
specified in the Constitution and to take office in it, as in
regard to the said person this would violate the constitutional
value-the right of union, or freedom of association.
13.9. In conclusion it is to be held that the principle of
incompatibility of the duties of a member of the Seimas with
other offices or work means that the duties of a member of the
Seimas are incompatible with any other activity (taking office,
performing work, performing service, fulfilment of other
functions, performing other tasks, holding a so-called office
of honour) in a state establishment, enterprise, organisation
of Lithuania, or a municipal establishment, enterprise,
organisation, or an international establishment, enterprise,
organisation, or a private establishment, enterprise,
organisation, or representing such an establishment,
enterprise, organisation, with the exception of the duties
expressis verbis or implicitly set down in the Constitution:
(1) the duties of a member of the Seimas specified in Paragraph
1 of Article 60 of the Constitution, which comprise the office
of the President of the Seimas and the Deputy President of the
Seimas, the office of a member of the Seimas in the Seimas,
which are taken by a member of the Seimas pursuant to the
Statute of the Seimas in the governing body of the Seimas or
when leading a structural sub-unit of the Seimas, as well as
other offices, which may be taken in the Seimas only by a
member of the Seimas, also offices of a member of the Seimas in
inter-parliamentary and other international institutions, which
may only be taken by a member of the Seimas; (2) the office of
Prime Minister or Minister specified in Paragraph 2 of Article
60 of the Constitution; (3) offices in the unions specified in
the Constitution, which are linked with his membership in a
respective union.
14. Another limitation imposed on a member of the Seimas
by Article 60 of the Constitution is a prohibition for a member
of the Seimas against receiving other remuneration, save the
exceptions expressis verbis established or implicitly provided
for in the Constitution.
14.1. It needs to be stressed that the notion
"remuneration" used in Paragraph 3 of Article 60 of the
Constitution is a constitutional notion, it bears the
constitutional content and may not be construed only following
the definition of analogous notions in laws and other legal
acts (for example, legal acts regulating labour or public
service relations). In this regard the remuneration specified
in Paragraph 3 of Article 60 of the Constitution is not to be
linked only with remuneration paid under employment or similar
contracts or agreements; the content of the notion
"remuneration" used in Paragraph 3 of Article 60 of the
Constitution is much broader, this notion comprises monetary
payments of various types and provision of other material
benefit to a member of the Seimas.
14.2. It was mentioned that the Constitution treats a
member of the Seimas as a professional politician, i.e. the
representative of the Nation whose work at the Seimas is his
professional activity. It was also mentioned that under
Paragraph 3 of Article 60 of the Constitution the work as well
as all expenses connected with parliamentary activities of a
member of the Seimas are remunerated from the State Budget.
Under Paragraph 3 of Article 60 of the Constitution, a
member of the Seimas enjoys the right to receive the
remuneration of a member of the Seimas. It was held that in
order to facilitate a due exercise of the Seimas member's duty
as the one of a representative of the Nation, the remuneration
of a Seimas member must be of sufficient size, paid regularly,
as well as it is not permitted that during the term of office
of the Seimas the remuneration of a Seimas member is decreased
from what it was at the beginning of the Seimas' term of office
by establishing it by law.
It was mentioned that under Paragraph 3 of Article 60 of
the Constitution, the expenses incurred by a member of the
Seimas and connected with parliamentary activities of a member
of the Seimas are remunerated from the State Budget. In this
context it needs to be noted that such funds may be used only
for the purpose specified in the Constitution, i.e.
parliamentary activity of a member of the Seimas. The
legislator must establish the legal regulation which would
provide a possibility each time to verify whether these funds
are used for their true purpose.
14.3. It was mentioned that a member of the Seimas may
also take other offices in the Seimas, including the office of
the President of the Seimas and the Deputy President of the
Seimas, the office of a member of the Seimas in the Seimas,
which is taken by a member of the Seimas pursuant to the
Statute of the Seimas in the governing body of the Seimas or
when leading a structural sub-unit of the Seimas, as well as
the office in inter-parliamentary and other international
institutions, which may only be taken by a member of the
Seimas.
It is to be held that the constitutional right of a member
of the Seimas to take such offices in the Seimas implies the
right to receive additional remuneration for taking such
offices, which is established by the law.
14.4. It was mentioned that under the Constitution a
member of the Seimas may take the office of Prime Minister or
Minister at the same time as well. The Constitutional Court in
its ruling of 9 November 1999 held that the constitutional
right of a Seimas member to work as Prime Minister or a
minister presupposes the right to receive remuneration for this
work; this is confirmed by Article 99 of the Constitution
wherein it is established that the Prime Minister and ministers
receive remuneration for their work in the Government. It was
also held in the Constitutional Court ruling of 9 November 1999
that for a member of the Seimas, who is appointed either Prime
Minister, or Minister different remuneration than that of other
Seimas members may be established for his activities as a
Seimas member. However, under the Constitution, the Seimas,
while having discretion to establish by law different
remuneration for the member of the Seimas who is appointed
either Prime Minister or Minister, than that of other Seimas
members, is bound by the constitutional requirement that in
this case the size of remuneration for a member of the Seimas
should also be sufficient, so that the member of the Seimas
would be able to properly perform his duty as the one of a
representative of the Nation.
14.5. It was held in this Ruling of the Constitutional
Court that according to the Constitution a member of the Seimas
may take office in the unions specified in the Constitution,
which are linked with his membership in a respective union. It
is to be noted that the established in the Constitution
prohibition for a member of the Seimas against receiving other
remuneration, save the exceptions provided for in the
Constitution itself, means that under the Constitution a member
of the Seimas may not receive any remuneration for his offices
or other activity in societies, political parties or
associations, and other unions.
It was mentioned that the content of the notion
"remuneration" used in Paragraph 3 of Article 60 of the
Constitution is broad, that it comprises monetary payments of
various types or provision of other material benefit to a
member of the Seimas. Therefore, under the Constitution, a
member of the Seimas, who takes certain office in a union, has
no right to receive from such unions either remuneration for
taking the duties, or any other monetary payments, and other
material benefit.
14.6. It was mentioned that pursuant to the Constitution a
member of the Seimas is not prohibited from receiving
remuneration for creative activities.
14.6.1. When construing the constitutional notion of
creative activities, it needs to be noted that Paragraph 1 of
Article 42 of the Constitution provides that culture, science
and research, and teaching are free, and Paragraph 3 of this
article provides that the law shall protect and defend those
spiritual and material interests of an author that are related
to scientific, technical, cultural, and artistic work.
According to the Constitution creative activities are
activities in the area of science, technology, culture or art,
aimed at creating a certain result, i.e. qualitatively new,
original and specific material or spiritual values of science,
technology, culture or art, which have never existed before.
Creative activities may be continuous, professional, and of
one-time type (episodic).
14.6.2. The established in the Constitution notion of
creative activities is integral, its content does not depend
inter alia upon a person, who is engaged in it. In this regard
there is no difference between creative activities of a member
of the Seimas and creative activities of any other human being.
14.6.3. It has been mentioned that the constitutional
legal status of a member of the Seimas, a representative of the
Nation, determines particularities of implementation of certain
rights of a person entrenched in the Constitution, which a
member of the Seimas enjoys as a human being and citizen.
It was also held in this Ruling that according to the
Constitution the duties of a member of the Seimas are
incompatible with any other activity (taking offices,
performing work, performing service, fulfilment of other
functions, performing other tasks, holding a so-called office
of honour) in a Lithuanian state, municipal, foreign or
international establishment, enterprise, or organisation, as
well as a private establishment, enterprise, organisation; or
representing such an establishment, enterprise, organisation,
with the exception of the duties of a member of the Seimas
specified in Paragraph 1 of Article 60 of the Constitution, the
office of Prime Minister or Minister specified in Paragraph 2
of Article 60 of the Constitution and the office in the
societies, political parties or associations, other unions,
which are linked with his membership in a respective
association.
When systemically construing the provisions of Article 42
and Article 60 of the Constitution it is to be held that
creative activities of a member of the Seimas are separated
from employment, service or similar relations, from holding
office in any establishment, enterprise or organisation.
Therefore, one of specific features of freedom of creative
activities of a member of the Seimas is that a Seimas member
exercises this freedom not as a subject to employment, service
or similar relations.
14.6.4. Remuneration may be paid to an author for his
creative activities. It is generally recognised that
remuneration for creative activities is regulated by the norms
of the copyright law.
14.6.5. In the context of the case at issue it needs to be
noted that the concept of creative activities is used not only
in Paragraph 3 of Article 60 of the Constitution, but in other
articles (parts thereof) as well. For example, Paragraph 1 of
Article 83 of the Constitution provides that the President of
the Republic may not inter alia receive any remuneration other
than the remuneration established for the President of the
Republic as well as remuneration for creative activities;
Article 99 of the Constitution provides that the Prime Minister
and Ministers may not inter alia receive any remuneration other
than that established for their respective Government offices
and payment for creative activities; Paragraph 1 of Article 113
of the Constitution provides that the judge may not inter alia
receive any remuneration other than the remuneration
established for the judge and payment for educational or
creative activities
The formula "payment for educational or creative
activities" in Paragraph 1 of Article 113 of the Constitution
reveals that the constitutional concepts of educational and
creative activities are not identical, and that each of them
has its own independent content. These concepts may not be
identified, they are not synonyms, and none of them comprises
the other. Educational activities in the Constitution are
separated from creative activities: educational activities are
linked with education, teaching and training at the educational
and teaching establishments (including higher schools),
meanwhile creative activities, as already mentioned, are
activities aimed at creating a piece of science, technology,
culture or art.
14.7. In conclusion it is to be held that the established
in the Constitution prohibition for a member of the Seimas
against receiving any remuneration other than that of a member
of the Seimas, means that a member of the Seimas may not
receive any other remuneration, with the exception of the
remuneration expressis verbis specified or implicitly provided
for in the Constitution: (1) remuneration for the duties of a
member of the Seimas, which comprise the office of the
President of the Seimas and the Deputy President of the Seimas,
the office of a member of the Seimas in the Seimas, which are
taken by a member of the Seimas pursuant to the Statute of the
Seimas in the governing body of the Seimas or when leading a
structural sub-unit of the Seimas, other offices which may be
taken in the Seimas only by a member of the Seimas, as well as
offices in inter-parliamentary and other international
institutions, which may only be assumed by a member of the
Seimas; 2) remuneration for holding the office of Prime
Minister or Minister; 3) remuneration for creative activities
engaged by him not as by a subject to employment, service or
similar relations.
15. The Constitution provides the legal regulation,
according to which the incompatibility of the duties of a
member of the Seimas with any other offices or work (save the
exceptions provided for in the Constitution), which comprises
the incompatibility of the duties of a member of the Seimas
with engaging in business, commerce, or other profit-making
private activity, and the prohibition for a member of the
Seimas against receiving any other remuneration (save the
exceptions provided for in the Constitution), become applied in
regard to a member of the Seimas from the moment when he
acquires all the rights of a representative of the Nation, i.e.
when he takes the oath. The Constitution does not provide that
after taking the oath a member of the Seimas may for a certain
period of time hold any other office, perform any other work
(save the exceptions provided for in the Constitution), engage
in business, commerce, or other profit-making private activity,
and receive any other remuneration (save the exceptions
provided for in the Constitution). Different construction of
the Constitution, that, purportedly, a member of the Seimas,
having taken the oath, for certain period of time still may
hold another office or perform other work, which is
incompatible with the duties of a member of the Seimas (save
the exceptions provided for in the Constitution), engage in
business, commerce, or other profit-making private activity,
would be unreasonable as the established in the Constitution
prohibitions applicable to a member of the Seimas and specified
in this Ruling of the Constitutional Court would be
disregarded; this would be in violation of the Constitution.
16. From the established in the Constitution
incompatibility of the duties of a member of the Seimas with
any other duties or work (save the exceptions provided for in
the Constitution), as well as the prohibition for a member of
the Seimas against receiving any other remuneration (save the
exceptions provided for in the Constitution), arises the duty
of the legislator to establish by law the legal regulation
which would provide an opportunity to verify whether the
limitations established in regard to a member of the Seimas by
Article 60 of the Constitution are followed. Such control must
be efficient, public, and constant instead of a one-time type.
According to Item 7 of Article 63 of the Constitution, the
powers of a member of the Seimas become terminated if he does
not resign from employment which is incompatible with the
duties of a member of the Seimas.
III
1. It was mentioned that the petitioner requests to
investigate as to whether provisions of Paragraph 4 of Article
15 of the Statute of the Seimas (wording of 22 December 1998),
which allow members of the Seimas to receive remuneration for
educational and scientific activities if a person is engaged in
them not during the sittings of the Seimas, its committees and
commissions, are not in conflict with the provisions of Article
60 of the Constitution of the Republic of Lithuania, which
prohibit members of the Seimas from receiving any other
remuneration, with the exception of remuneration for creative
activities.
2. It was mentioned that Paragraph 4 of Article 15 of the
Statute of the Seimas (wording of 22 December 1998) provides
that a member of the Seimas may not receive any remuneration,
except remuneration for creative activities; remuneration of a
member of the Seimas for creative activities is royalties for a
piece of art and performance of it, publications and books,
material for the radio and television broadcasts, as well as
remuneration for educational and scientific activity not during
the sittings of the Seimas, its committees and commissions.
3. The provision of Paragraph 4 of Article 15 of the
Statute of the Seimas (wording of 22 December 1998) that a
member of the Seimas may not receive any other remuneration,
with the exception of remuneration for creative activities,
repeats the provision of Paragraph 3 of Article 60 of the
Constitution that a member of the Seimas may not receive any
other remuneration, with the exception of remuneration for
creative activities. This provision of Paragraph 4 of Article
15 of the Statute of the Seimas (wording of 22 December 1998)
is not in conflict with the Constitution.
4. The provision of Paragraph 4 of Article 15 of the
Statute of the Seimas (wording of 22 December 1998) that a
member of the Seimas may receive royalties for a piece of art
and performance of it, publications and books, material for the
radio and television broadcasts is to be evaluated as the one,
which complies with the concept of remuneration of a member of
the Seimas for creative activities.
5. The provision of Paragraph 4 of Article 15 of the
Statute of the Seimas (wording of 22 December 1998) that a
member of the Seimas may receive remuneration for educational
and scientific activities is to be evaluated differently.
5.1. It was held in this Ruling of the Constitutional
Court that the constitutional concepts of educational and
creative activities are not identical, and that each of them
has its own independent content, that they are not synonyms,
and none of them comprises the other.
By the legal regulation established in Paragraph 4 of
Article 15 of the Statute of the Seimas (wording of 22 December
1998), educational activities are identified with creative
activities. This means that according to Paragraph 4 of Article
15 of the Statute of the Seimas (wording of 22 December 1998) a
member of the Seimas may receive remuneration not only for
creative, but for educational activities as well. This is not
in line with the provision "a member of the Seimas may not
receive any other remuneration, with the exception of
remuneration for creative activities" of Paragraph 3 of Article
60 of the Constitution.
5.2. According to Paragraph 4 of Article 15 of the Statute
of the Seimas (wording of 22 December 1998), remuneration of a
member of the Seimas for creative activities constitutes
remuneration for his scientific activities, too. This provision
will correspond to the constitutional concept of creative
activities of a member of the Seimas only if such remuneration
is paid for the activity of a member of the Seimas, engaged in
by the member of the Seimas without employment, service or
similar relations with any establishment, enterprise or
organisation. Only such interpretation of the provision of
Paragraph 4 of Article 15 of the Statute of the Seimas (wording
of 22 December 1998) is not in conflict with the Constitution.
6. Having taken account of the aforementioned arguments, a
conclusion is to be made that Paragraph 4 of Article 15 of the
Statute of the Seimas (wording of 22 December 1998) to the
extent that it provides that remuneration of a member of the
Seimas for educational activities is considered to be
remuneration for creative activities, is in conflict with
Paragraph 3 of Article 60 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
To recognise that Paragraph 4 of Article 15 of the Statute
of the Seimas of the Republic of Lithuania (wording of 22
December 1998) to the extent that it provides that remuneration
of a member of the Seimas for educational activities is
considered to be remuneration for creative activities, is in
conflict with Paragraph 3 of Article 60 of the Constitution of
the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas