Lietuviškai
Case No 23/2003
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF THE REPUBLIC OF LITHUANIA LAW
ON THE SUPPLEMENT AND AMENDMENT OF ARTICLES 86, 87
OF THE LAW ON ELECTIONS TO MUNICIPAL COUNCILS AND
ITS SUPPLEMENT WITH ARTICLE 88-1 WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
19 January 2005
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 representatives of the petitioner, a group of members
of the Seimas of the Republic of Lithuania, who were the member
of the Seimas Raimondas Šukys and the advocate Vaidotas
Vaičius,
the representative of the party concerned, the Seimas of
the Republic of Lithuania, who was Pranas Žukauskas, chief
specialist of the Law Department of the Office of the Seimas of
the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing on 3 January 2005 heard case No. 23/2003
subsequent to the petition of the petitioner, a group of
members of the Seimas, requesting to investigate:
1) whether the Republic of Lithuania Law on the Supplement
and Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1 is not
in conflict, according to the procedure of its adoption, with
Paragraph 1 of Article 69 of the Constitution of the Republic
of Lithuania;
2) whether Paragraph 2 of Article 4 of the Republic of
Lithuania Law on the Supplement and Amendment of Articles 86,
87 of the Law on Elections to Municipal Councils and Its
Supplement with Article 88-1 consolidating that "the norms of
Paragraph 2 of Article 88-1 of the Law on Elections to
Municipal Councils regarding the refusal of the mandate of the
municipal council member by the persons elected as a municipal
council member before the first sitting of the municipal
council indicated in Article 3 of this Law shall be applied
from the elections to municipal councils for the next term of
office", is not in conflict, by its content, with the principle
of a state under the rule of law set in the Preamble to the
Constitution of the Republic of Lithuania, Paragraph 2 of
Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7,
Paragraphs 1 and 2 of Article 107, and Paragraph 2 of Article
119 of the Constitution of the Republic of Lithuania;
3) whether the Republic of Lithuania Law on the Supplement
and Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1 to the
extent of its regulation is not in conflict with the principle
of a state under the rule of law set in the Preamble to the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner-a group of members of the Seimas-applied to
the Constitutional Court with a petition requesting to
investigate:
1) whether the Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1 (Official Gazette
Valstybės žinios, 2003, No 17-711; hereinafter also referred to
as the Law) is not in conflict, according to the procedure of
its adoption, with Paragraph 1 of Article 69 of the
Constitution;
2) Paragraph 2 of Article 4 of the Law on the Supplement
and Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1
consolidating that "the norms of Paragraph 2 of Article 88-1 of
the Law on Elections to Municipal Councils regarding the
refusal of the mandate of the municipal council member by the
persons elected as a municipal council member before the first
sitting of the municipal council indicated in Article 3 of this
Law shall be applied from the elections to municipal councils
for the next term of office", is not in conflict, by its
content, with the principle of a state under the rule of law
set in the Preamble to the Constitution, Paragraph 2 of Article
5, Paragraph 1 of Article 6, Paragraph 1 of Article 7,
Paragraphs 1 and 2 of Article 107, and Paragraph 2 of Article
119 of the Constitution
3) whether the Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1 to the extent of its
regulation is not in conflict with the principle of a state
under the rule of law set in the Preamble to the Constitution.
II
The petition of the petitioner is based on the following
arguments.
1. The Seimas adopted the Republic of Lithuania Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1 while reacting to the Constitutional Court ruling of 24
December 2002, therefore, as the petitioner claims, according
to the provisions of chapter twenty eight-1 of the Statute of
the Seimas (namely Articles 181-1, 181-2 and Paragraph 1 of
Article 181-3) the Committee on Legal Affairs of the Seimas or,
under its offering, another committee of the Seimas had the
right to prepare and discuss a draft of the disputed law as the
principal committee. But in the sitting of the Seimas, without
the offering of the Committee on Legal Affairs, the Committee
on State Administration and Local Authorities was assigned as
the principal committee. According to the petitioner, this
violation of the Statute of the Seimas had the essential impact
upon the content of the law and its legal quality.
According to Paragraph 1 of Article 69 of the
Constitution, laws shall be adopted in the Seimas in accordance
with the procedure established by law. The procedure of
adoption of laws is set by the Statute of the Seimas,
therefore, in the opinion of the petitioner, violation of its
provisions means that Paragraph 1 of Article 69 of the
Constitution has been violated as well. Thus, the petitioner
assumes that the disputed law according to the procedure of its
adoption is in conflict with Paragraph 1 of Article 69 of the
Constitution.
2. It is stated in the Constitutional Court ruling of 24
December 2002 that the principle of prohibition of a double
mandate is set in the Constitution, that the same persons may
not at the same time discharge functions in state power
implementation and be members of municipal councils through
which the rights of self-government are implemented, that,
under the Constitution, state officials who, according to the
Constitution and the laws, enjoy powers of controlling or
supervising activities of municipalities, may not be members of
municipal councils, that, pursuant to the Constitutions and
laws, if a person performing functions of state power
implementation or a state official who, according to the
Constitution and the laws, enjoys powers of controlling or
supervising activities of municipalities, is elected to the
post of a member of the municipal council, he must decide
whether to continue with his former duties or be a member of
the municipal council before the first sitting of the newly
elected municipal council.
It is established in Paragraph 2 of Article 4 of the
disputed law that the norms of Paragraph 2 of Article 88-1 of
the Law on Elections to Municipal Councils regarding the
refusal of the mandate of a council member by the person
elected as a municipal council member before the first sitting
of the municipal council shall be applied from the elections of
the municipal council of the next term of office. According to
the petitioner, the provision is set in Paragraph 2 of Article
4 of the Law on the Supplement and Amendment of Articles 86, 87
of the Law on Elections to Municipal Councils and Its
Supplement with Article 88-1 which by its content is in
conflict with Paragraph 2 of Article 119 of the Constitution
and the principle of a state under the rule of law; in
addition, when adopting this provision, the legislator exceeded
its competence and violated Paragraph 2 of Article 5, Paragraph
1 of Article 6, Paragraph 1 of Article 7, and Paragraphs 1 and
2 of Article 107 of the Constitution.
3. Article 3 of the Law provides that "the duties of a
municipal council member are incompatible <...> with duties of
state official who, under the Constitution and laws, has powers
to control or supervise the activity of municipalities<...>".
However, the legislator did not establish any final list of
officials who have the power to control and supervise the
activity of municipalities. In the opinion of the petitioner,
the lack of regulation should be treated as a contrary legal
regulation and may serve as grounds for recognising the legal
act to be in conflict with the Constitution. The petitioner has
doubts whether the disputed law to the extent of its regulation
is not in conflict with the principle of a state under the rule
of law consolidated in the Preamble to the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the party concerned, the representatives of the
petitioner, who were the members of the Seimas P. Papovas and
P. Žukauskas.
1. In the explanations of the member of the Seimas P.
Papovas it is stated that the Constitutional Court ruling of 24
December 2002 was passed in the case which did not include
consideration of the issues on the compliance of the provisions
of the Law on Elections to Municipal Councils with the
Constitution.
According to the representative of the party concerned,
the said Constitutional Court ruling was passed after the
elections to municipal councils. Before this ruling became
effective and till the next elections to municipal councils
members of Seimas, county chiefs, their deputies could serve
also as members of municipal councils; when participating in
the elections to municipal councils they expected to become
members of these municipal councils and undertook certain
obligations to their electorate. In the opinion of P. Papovas,
in this case the principle of legitimate expectations should be
followed.
In the opinion of the representative of the party
concerned, the provision of Paragraph 2 of Article 88-1 of the
Law on Elections to Municipal Councils, indicating that "the
elected member of the municipal council who decided to refuse
the mandate of a council member not later than 10 days before
the first sitting of the municipal council, personally hands in
or sends a notary certified application regarding refusal of
the municipal council mandate to the Central Electoral
Commission", defines the procedure and time of refusal of the
municipal council mandate before the first sitting of the
municipal council. According to P. Papovas, the provision set
in Paragraph 2 of Article 4 of the 88-1 that the norms of
Paragraph 2 of Article 88-1 of the Law on Elections to
Municipal Councils regarding refusing of the mandate of a
council member by a person elected as a member of the municipal
council before the first sitting of the municipal council shall
be applicable from the elections to municipal councils for the
next term of office did not deny an opportunity for a person
elected as a municipal council member, upon his decision, to
refuse the mandate of a municipal council member before the
first sitting of the municipal council; in addition, this
provision is of one-time nature. The representative of the
Seimas stressed that having not refused the duties of the
municipal council member before the first sitting of the
municipal council, the Central Electoral Commission has the
grounds to recognise the powers of the municipal council member
terminated not later than within 15 days. Thus, according to P.
Papovas, the Seimas, when adopting the provision not to apply
the norms of Paragraph 2 of Article 88-1 to the municipal
council members of the 2003-2007 term of office regarding
refusal by the person elected as a municipal council member of
the mandate of a member of this council before the first
sitting of the municipal council, basically did not deny an
opportunity to do this on a voluntary basis, nor did it deny
the constitutional principle of prohibition of a double mandate
and the prohibition to be a municipal council member and at the
same time to discharge duties incompatible with the duties of a
council member.
2. According to P. Žukauskas, the provisions of chapter
twenty eight-1 of the Statute of Seimas on the implementation
of the Constitutional Court rulings were linked with the
amendment of the legal act recognised as being in conflict with
the Constitution. Paragraph 1 of Article 181-2 of the Statute
of the Seimas provides that "the Committee on Legal Affairs of
the Seimas or, following its offering, another committee of the
Seimas shall prepare the draft amendment of the legal act (or
part of it) which was found by the Constitutional Court to be
in conflict with the Constitution of the Republic of
Lithuania". In the opinion of P. Žukauskas, when preparing,
considering and adopting the disputed law, the provisions of
chapter twenty eight-1 of the Statute of the Seimas should not
have been applied because this law was adopted not to amend the
part of the legal act which had been recognised to be in
conflict with the Constitution.
According to P. Žukauskas, the request of the petitioner
to recognise all the disputed legal act to the extent of its
regulation to be in conflict with the Constitution is
groundless because the arguments were presented regarding only
one part of the said legal act; in addition, in the opinion of
the representative of the party concerned, the petitioner
failed to reveal the essence of the non-compliance with the
Constitution. In the opinion of the representative of the
Seimas, in view of brevity and exactness of the legal act, by
the disputed law one did not intend to define a final list of
officials enjoying the power to control or supervise activities
of municipalities; the list of officials presented in the law
is of exemplary nature, meanwhile, the functions, rights and
duties of each official are defined by individual acts of law,
and the regulation set within them is sufficient to establish
and assess the content and scope of public officials' powers to
supervise and control activities of municipalities.
IV
1. At the hearing of the Constitutional Court, the
representative of the petitioner who were the member of the
Seimas R. Šukys and the advocate V. Vaičius, due to the fact
that the issue of the compliance of Paragraph 2 of Article 4 of
the Law on the Supplement and Amendment of Articles 86, 87 of
the Law on Elections to Municipal Councils and Its Supplement
with Article 88-1 with the Constitution had already been solved
by the Constitutional Court ruling of 30 May 2003, requested to
dismiss this part of the case.
At the Constitutional Court hearing, the representatives
of the petitioner also specified their position regarding the
compliance of the disputed law with the Constitution according
to the scope of regulation. Following the provision of the
Constitutional Court decision of 13 February 2004 that "while
deciding whether a certain state official is to be attributed
to the state officials who have the right to adopt decisions
upon which the adoption and implementation of decisions of
municipal councils within their competence defined in the
Constitution and laws would be dependent, and who, due to this,
cannot be municipal council members at the same time, one must
assess in every particular case the content of powers
established to them in the Constitution and laws", they stated
that a final list of such officials should not be established;
thus, the reasons regarding the non-compliance of the disputed
law to the extent of its regulation with the constitutional
principle of a state under the rule of law were groundless. At
the same time the representatives of the petitioner requested
the Constitutional Court to investigate whether Paragraph 1
Article 88-1 (wording of 25 March 2004) of the Law on Elections
to Municipal Councils which consolidates a final list of the
duties which are incompatible with the duties of a municipal
council member is not in conflict with the principle of a state
under the rule of law.
What concerns other issues, the representatives of the
petitioner repeated the reasons stated in the petition of the
petitioner.
2. During the hearing of the Constitutional Court P.
Žukauskas, the representative of the party concerned, requested
to dismiss the part in the case regarding the compliance of
Paragraph 2 of Article 4 of the Law on the Supplement and
Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1 with
the Constitution, because Paragraph 2 of Article 4 of the Law
was recognised to be in conflict with the Constitution by the
Constitutional Court ruling of 30 May 2003, and by the law of
27 May 2003, which became effective on the 13 June 2004, it was
abolished.
What concerns other issues, P. Žukauskas repeated the
reasons stated in his written explanations.
The Constitutional Court
holds that:
I
1. The petitioner-a group of members of the Seimas-applied
to the Constitutional Court requesting to investigate:
1) whether the Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1 is not in conflict,
according to the procedure of its adoption, with Paragraph 1 of
Article 69 of the Constitution;
2) whether Paragraph 2 of Article 4 of the Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1 consolidating that "the norms of Paragraph 2 of Article
88-1 of the Law on Elections to Municipal Councils regarding
the refusal of the mandate of the municipal council member by
the persons elected as a municipal council member before the
first sitting of the municipal council indicated in Article 3
of this Law shall be applied from the elections to municipal
councils for the next term of office", is not in conflict, by
its content, with the principle of a state under the rule of
law set in the Preamble to the Constitution, Paragraph 2 of
Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7,
Paragraphs 1 and 2 of Article 107, and Paragraph 2 of Article
119 of the Constitution;
3) whether the Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1 to the extent of its
regulation is not in conflict with the principle of a state
under the rule of law set in the Preamble to the Constitution.
2. The Seimas adopted the Republic of Lithuania Law on
Elections to Municipal Councils on 7 July 1994. This law became
effective on 13 July 1994.
On 23 December 1996 the Seimas adopted the Law on Amending
the Law on Elections to Municipal Councils of the Republic of
Lithuania, and in its Article 1 set forth the new wording of
the Law on Elections to Municipal Councils.
On 19 October 1999 the Seimas adopted the Law on Amending
the Law on Elections to Municipal Councils of the Republic of
Lithuania, and in its Article 1 a new wording of the Law on
Elections to Municipal Councils was repeatedly set forth.
The Law on Elections to Municipal Councils (wording of 19
October 1999) was amended and/or supplemented a number of
times.
Until 28 January 2003, when the Law on the Supplement and
Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1 was
adopted, the duties incompatible with the duties of a municipal
council member were not established in the Law on Elections to
Municipal Councils.
3. On 24 December 2002, the Constitutional Court passed
the Ruling "On the compliance of Paragraph 3 of Article 3
(wording of 12 October 2000), Paragraph 4 of Article 3 (wording
of 12 October 2000), Item 2 of Paragraph 1 of Article 5
(wording of 12 October 2000), Paragraph 1 of Article 18
(wording of 12 October 2000), Items 2, 3, 4, 8 and 15 of
Paragraph 1 of Article 19 (wording of 12 October 2000), Items
1, 5, 7, 9, 12, 15, 16, 17 and 18 of Paragraph 1 of Article 21
(wording Of 12 October 2000), Item 6 of the same paragraph
(wordings of 12 October 2000 and 25 of September 2001), and
Item 14 of the same paragraph (wordings of 12 October 2000 and
of 8 November 2001) of the Republic of Lithuania Law on Local
Self-Government, as well as the Constitutional Law on the
Procedure of the Application of the Law on the Alteration of
Article 119 of the Constitution of the Republic of Lithuania,
and the Law on Entering into the List of Constitutional Laws of
the Constitutional Law on the Procedure of the Application of
the Law on the Alteration of Article 119 of the Constitution,
with the Constitution of the Republic of Lithuania".
The Constitutional Court ruling of 24 December 2002 inter
alia held that, under the Constitution, the same persons may
not discharge the functions in the implementation of state
power and, at the same time, be members of municipal councils,
through which the right of self government is implemented, that
the Constitution consolidates the principle of prohibition of a
double mandate, that the state officials who, according to the
Constitution and laws enjoy the powers to control or supervise
the activities of municipal councils, may not be members of
municipal councils, either. The said Constitutional Court
ruling also held that in cases when there occurs a legal
situation when a person discharging the functions of state
power, or a state official who, under the Constitution and
laws, enjoys the powers to control or supervise activities of
municipalities, is elected a member of a municipal council, he,
before the newly elected municipal council convenes to the
first sitting, must decide whether to remain in office or to be
a member of the municipal council. It was also held that, under
the Constitution, the executive bodies accountable to municipal
councils may not be formed from among members of the municipal
councils which establish them.
The said Constitutional Court ruling inter alia recognised
that Paragraph 1 of Article 18 (wording of 12 October 2000) of
the Law on Local Self-Government to the extent that it provided
that the municipal board is formed from among the members of
the municipal council was in conflict with Paragraphs 1 and 4
of Article 119 of the Constitution, also, that Item 1 (wording
of 12 October 2000) of Paragraph 1 of Article 21 of the Law on
Local Self-Government to the extent that it provided that the
mayor shall determine and draw up agendas for the municipal
council sittings and submit draft decisions of municipal
council, convene sittings of the municipal council and chair
them, coordinate the activity of committees and commissions of
the municipal council, sign decisions of the municipal council
and the minutes of the sittings of the council that he has
chaired, was in conflict with Paragraph 2 of Article 5 and
Paragraphs 1 and 4 of Article 119 of the Constitution.
The Constitutional Court did not investigate the
compliance of the Law on Elections to Municipal Councils with
the Constitution in the case in which the ruling of 24 December
2002 was passed.
In its ruling of 24 December 2002, the Constitutional
Court also held that the provisions of the Law on Local
Self-Government, which were recognised by the Court in the said
ruling as contradicting to the Constitution, were
systematically interrelated with many other provisions of the
same law. Under the Constitution and the Law on the
Constitutional Court, a law (or part thereof) may not be
applied from the day of official promulgation of the decision
of the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution. The
Constitutional Court held that if the said Constitutional Court
ruling had been officially published immediately after its
public promulgation in the Constitutional Court hearing, there
would have appeared vacuum in the legal regulation concerning
local self-government, which would have disrupted the
functioning of local self-government mechanism and state
administration in essence. In order to remove this vacuum in
legal regulation, some time was necessary. Therefore, the
Constitutional Court ruled that its ruling of 24 December 2002
shall be officially published on 25 February 2003.
The said Constitutional Court ruling was promulgated in
the Constitutional Court hearing of 24 December 2002 and was
officially published in the official gazette "Valstybės žinios"
and became effective on 25 February 2003.
4. On 16 January 2003, in the Register of Draft Laws and
Proposals received by the Seimas Sittings Secretariat, the
Republic of Lithuania Draft Law on Supplementing and Amending
Article 87 of the Law on Elections to Municipal Councils and
Supplementing the Law with Article 88-1 (No. IXP-2222) was
presented by the member of the Seimas P. Papovas. In the
explanatory note of this draft inter alia was indicated that
"the goal of the proposed draft laws is to remove by the right
of legislative initiative the gap in the normative regulation
after the Constitutional Court on 24 December 2002 construed
that <...> pursuant to the principle of prohibition of a double
mandate set in the Preamble to the Constitution, the same
persons may not, at the same time, discharge functions
implementing state power and be members of municipal councils
through which the right of self-government is implemented".
5. On 20 January 2003, the Legal Department of the Office
of the Seimas presented the conclusion on the Draft Law on
Supplementing and Amending Article 87 of the Law on Elections
to Municipal Councils and Supplementing the Law with Article
88-1 (No. IXP-2222), in which it drew attention to certain
legal technique inaccuracies of this draft. These conclusions
of the Legal Department of Law of the Office of the Seimas were
registered in the Register of Draft Laws and Proposals received
by the Seimas Sittings Secretariat on 21 January 2003.
6. During the 21 January 2003 morning sitting the member
of the Seimas P. Papovas presented the Draft Law on
Supplementing and Amending Article 87 of the Law on Elections
to Municipal Councils and Supplementing the Law with Article
88-1 (No. IXP-2222). At this sitting of the Seimas it was
decided to postpone the presentation of the said draft law till
the day sitting of the Seimas of the same day, and during the
evening sitting of the Seimas it was decided to make another
postponement until the 23 January 2003 Seimas sitting.
7. During the 23 January 2003 Seimas sitting the
presentation procedure of the Draft Law on Supplementing and
Amending Article 87 of the Law on Elections to Municipal
Councils and Supplementing the Law with Article 88-1 (No.
IXP-2222) was continued, and after the presentation the Seimas
decided to start the consideration procedure of the said draft
law. During this sitting of the Seimas, upon the proposal of
the Seimas Assembly of Elders, the Committee on State
Administration and Local Authorities of the Seimas was
appointed the principal committee to consider the said draft
law, while the Committee on Legal Affairs of the Seimas-the
supplementary committee. The date of consideration of this
draft law in the Seimas was also appointed, which was 28
January 2003.
8. In its meeting of 27 January 2003, the Committee on
Legal Affairs of the Seimas considered the Draft Law on
Supplementing and Amending Article 87 of the Law on Elections
to Municipal Councils and Supplementing the Law with Article
88-1 (No. IXP-2222) and suggested that the principal committee
improve it following the notes of the Legal Department of Law
of the Office of the Seimas.
9. On 27 January 2003 the proposals regarding the
considered draft law presented by the members of the Seimas J.
Razma, A. Salamakinas, and N. Steiblienė were registered in the
Seimas.
10. The Committee on State Administration and Local
Authorities of the Seimas in its meeting of 27 January 2003
considered the improved Draft Law on Supplementing and Amending
Article 87 of the Law on Elections to Municipal Councils and
Supplementing the Law with Article 88-1 (No. IXP-2222) and
approved of it. On 28 January 2003, the said improved draft
law, now called the Republic of Lithuania Draft Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1 was registered in the Register of Draft Laws and Proposals
received by the Seimas Sittings Secretariat and was given
reference number IXP-2222(2SP).
11. On 28 January 2003, the Legal Department of the Office
of the Seimas presented its conclusions on the Draft Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1 (No. IXP-2222(2SP). On the same day, these conclusions of
the Legal Department of the Office of the Seimas were
registered in the Register of Draft Laws and Proposals received
by the Seimas Sittings Secretariat. It drew attention to
certain legal technique inaccuracies of the said draft law, it
was also stated that the provision of the Draft Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1 (No. IXP-2222(2SP), saying that the norms of Paragraph 2
of Article 88-1 of the Law on Elections to Municipal Councils
regarding refusal of the mandate of a council member before the
first sitting of the municipal council by a person elected as
municipal council member contradicted the Constitutional Court
ruling of 24 December 2002. In the said conclusions the Legal
Department of the Office of the Seimas, following Paragraph 5
of Article 72 of the Law on the Constitutional Court, also
indicated that the power of the Constitutional Court to
recognise a legal act or part thereof as unconstitutional may
not be overruled by a repeated adoption of a like legal act or
part thereof.
12. During the Seimas sitting of 28 January 2003 the
consideration of the Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1 (No. IXP-2222(2SP),
improved by the Committee on State Administration and Local
Authorities of the Seimas, was continued. During this sitting
the proposals of the members of the Seimas J. Razma, A.
Salamakinas, and N. Steiblienė were considered and several of
the said proposals were approved of by the Seimas.
During the Seimas sitting of 28 January 2003, on the
proposal of the President of the Seimas, it was decided to
continue consideration of this draft law under urgency
procedure.
13. On 28 January 2003 the Seimas adopted the Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1, in which the following was established:
"Article 1. Supplementation of Article 86 with Item 9
To supplement Article 86 with Item 9:
'9) if the council member takes the duties or fails to
refuse the duties incompatible with the duties of a municipal
council member.'
Amendment of Item 1 of Article 87
In Paragraph 1 of Article 87 after the word 'discontinued'
to include the words 'or having lost the mandate of a council
member' and arrange this paragraph as follows:
1. 'Having found the powers of a council member as
discontinued or having lost the mandate of a council member, a
vacancy appears among the council members. It can be occupied
in the following way: the first candidate from the
post-elective candidate list, according to which the former
council member was elected, who failed to get the mandate of a
council member, shall become a council member. If the said
candidate list provides no candidates failing to get the
mandate of a council member, the mandate of a council member
shall be passed over to other list according to the candidate
list order, formed after the elections for distribution of
mandates by the method of remainder, i.e. the first list after
the last list to receive the mandate in this order, and the
first candidate who failed to get the mandate of a council
member of the new list shall become the council member. The
Central Electoral Commission shall decide on acknowledgement of
the mandate of a council member within 7 days after the vacancy
appears.'
Article 3. Supplementation of the law with Article 88-1
To supplement the Law with Article 88-1:
'Article 88-1. The duties incompatible with the duties of
a municipal council member and loss of the mandate of a council
member
1.1. The duties of a council member are incompatible with
the duties of the President of the Republic, a member of the
Seimas, a member of the Government, or with the duties of a
state official who, under the Constitution and laws, enjoys
powers to control or supervise the activities of
municipalities, also, with the duties of a county chief,
municipal controller or official of the service of the
municipal controller, with the duties of the director of
municipal administration or a public servant of municipal
administration.
2. If the person discharging the duties indicated in
Paragraph 1 of this Article is elected a municipal council
member or while being a municipal council member he discharges
the duties or takes the duties indicated in Paragraph 1 of this
Article, he must decide and refuse either these duties or the
mandate of a municipal council member. The elected council
member having decided to refuse the mandate of a council member
within 10 days before the day of the first sitting of the
municipal council shall hand in a notary approved application
regarding refusal of the mandate of a municipal council member
to the Central Electoral Commission personally or send it by
mail. Upon reception of this application the Central Electoral
Commission within 7 days before the day of the first municipal
council sitting shall decide on the loss of the mandate of a
municipal council member and acknowledgement of the mandate to
a new council member. The candidates from the post-elective
candidate list who decided to refuse the mandate of a municipal
council member shall within 7 days before the day of the first
municipal council sitting present the applications regarding
refusal of the mandate of a municipal council member to the
Central Electoral Commission. Under the procedure indicated in
Articles 86 and 87 of this Law, the Central Electoral
Commission shall decide regarding the person who has the powers
of a council member and is discharging or who has taken duties
which are incompatible with the duties of the municipal council
member.'
Article 4. Final provisions
1. This Law shall become effective as of 25 February 2003.
2. The norms of Paragraph 2 of Article 88-1 of the Law on
Elections to Municipal Councils regarding refusal of the
mandate of a municipal council member before the first
municipal council sitting set forth in Article 3 of this Law
shall be applicable from the municipal council elections of the
next term of office."
14. On 30 May 2003 the Constitutional Court passed the
Ruling "On the compliance of Paragraph 2 of Article 4 of the
Republic of Lithuania Law on the Supplement and Amendment of
Articles 86 and 87 of the Law on the Elections to Municipal
Councils and Its Supplement with Article 88-1 with the
Constitution of the Republic of Lithuania and on the Compliance
of Government of the Republic of Lithuania Resolution No. 457
'On the Dismissal of the Chief of the Vilnius County' of 11
April 2003 with the Constitution of the Republic of Lithuania
and Paragraph 1 of Article 9 of the Republic of Lithuania Law
'On the Procedure of Publication and Coming into Force of
Republic of Lithuania Laws and Other Legal Acts'".
The said Constitutional Court ruling inter alia holds that
the Law on the Supplement and Amendment of Articles 86, 87 of
the Law on Elections to Municipal Councils and Its Supplement
with Article 88-1 was adopted while reacting to the
Constitutional Court ruling of 24 December 2002.
In its Ruling of 30 May 2003 the Constitutional Court
inter alia recognised that Paragraph 2 of Article 4 of the Law
on the Supplement and Amendment of Articles 86, 87 of the Law
on Elections to Municipal Councils and Its Supplement with
Article 88-1 was in conflict with Article 4, Paragraphs 1 and 2
of Article 5, Paragraph 4 of Article 59, Paragraphs 1 and 2 of
Article 60, Paragraph 1 of Article 83, Article 99, Paragraphs 1
and 2 of Article 107, Paragraphs 1 and 4 of Article 119,
Paragraph 2 of Article 120, Paragraphs 1 and 2 of Article 123,
and Paragraph 1 of Article 134 of the Constitution.
The Constitutional Court ruling of 30 May 2003 was
officially published in the official gazette "Valstybės žinios"
and became effective on 31 May 2003.
15. On 27 May 2003 the Seimas adopted the Republic of
Lithuania Law on Amending Article 4 of the Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1, by Article 1 of which Paragraph 2 of Article 4 of the Law
was recognised as no longer valid. The Republic of Lithuania
Law on Amending Article 4 of the Law on the Supplement and
Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1 was
officially published in the official gazette "Valstybės žinios"
and became effective on 13 June 2003.
16. On 25 March 2004, the Seimas adopted the Law on
Amending Articles 35, 86 and 88-1 of the Law on Elections to
Municipal Councils by Article 3 whereof it amended Article 88-1
of the Law on Elections to Municipal Councils (wording of 28
January 2003) and arranged its Paragraph 1 as follows: "The
duties of a council member are incompatible with the duties of
the President of the Republic, a member of the Seimas, a member
of the Government, a county chief or a deputy county chief, the
representative of the Government in a county, the duties of the
State Controller or his deputies. In addition, the duties of a
council member are incompatible with the duties of the
municipal controller or an official of the service of the
municipal controller, with the duties of the director of
municipal administration or a state servant of municipal
administration, with the duties of heads of municipal
institutions funded form the budget, the duties of a single
person director or a member of collegial management bodies of
municipal establishments and enterprises, the duties of a
member of collegial management bodies (boards) of joint-stock
companies controlled by municipalities or the director of a
company (when the board is not formed)."
17. The Law on Elections to Municipal Councils was
amended, its separate articles (their paragraphs) were changed
by other laws adopted by the Seimas as well. The petitioner
does not dispute these supplements and amendments in this case.
II
On the compliance of the Law on Supplement and Amendment
of Articles 86, 87 and Its Supplement with Article 88-1
according to the procedure of its adoption with Paragraph 1 of
Article 69 of the Constitution.
1. The petitioner-a group of members of the Seimas-has
doubts whether the Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1 according to the procedure
of its adoption is in compliance with Paragraph 1 of Article 69
of the Constitution.
2. The petitioner grounds his doubts on the fact that the
Seimas adopted the law while reacting to the Constitutional
Court ruling of 24 December 2002, therefore, in the opinion of
the petitioner, pursuant to chapter twenty eight-1 of the
Statute of the Seimas "Implementation of Rulings, Conclusions
and Decisions of the Constitutional Court", the Committee on
Legal Affairs of the Seimas or another Seimas committee
following its offering should have prepared and considered the
draft Law as the principal committee; during the sitting of the
Seimas, in the absence of offering from the Committee on Legal
Affairs of the Seimas, the Committee on State Administration
and Local Authorities was appointed as the principal committee
for consideration of this draft law. The latter committee
prepared the said draft Law and presented it to the Seimas for
consideration. In the opinion of the petitioner, when preparing
and considering the draft Law under the said procedure, the
requirements of chapter twenty eight-1 of the Statute of the
Seimas were disregarded and that means that Paragraph 1 of
Article 69 of the Constitution was violated.
3. In Paragraph 1 of Article 69 of the Constitution it is
established: "Laws shall be adopted in the Seimas in accordance
with the procedure established by law."
Paragraph 1 of Article 69 of the Constitution is related
to Article 76 of the Constitution, stating the following: "The
structure and procedure of activities of the Seimas shall be
established by the Statute of the Seimas. The Statute of the
Seimas shall have the power of law."
The establishment of the procedure of Seimas activities
includes also regulation of the legislative procedure
(Constitutional Court rulings of 18 October 2000, 14 January
2002). When construing the provision of Paragraph 1 of Article
69 of the Constitution together with the provision of Article
76 of the Constitution the Constitutional Court has stated that
both these provisions mean that the legislative procedure may
be regulated by the Statute of the Seimas and also by other
laws (Constitutional Court rulings of 28 June 2001 and 14
January 2002). The duty of the Seimas to follow the legislation
rules defined by the Statute of the Seimas not only may but
also should be treated as a constitutional duty because it is
preconditioned by the provision established in Paragraph 1 of
Article 69 of the Constitution (the Constitutional Court
rulings of 8 November 1993, 18 October 2000, and 14 January
2002). When establishing the procedure for adoption of laws,
the Seimas must pay heed to the norms and principles of the
Constitution.
4. Paragraph 1 of Article 68 of the Constitution provides
that the right of legislative initiative in the Seimas belongs
to the members of the Seimas, the President of the Republic,
and the Government.
The Constitutional Court has held that the essence and
purpose of the right of legislative initiative is to initiate
the legislative procedure. This right is implemented by
presenting a draft law to the Seimas. When the subject of the
right of legislative initiative in the Seimas presents a draft
law, the legislative institution, the Seimas, is obliged to
start considering it (Constitutional Court rulings of 8
November 1993, 21 April 1998, and 25 January 2001).
The right of legislative initiative of Seimas members
established in Paragraph 1 of Article 68 of the Constitution
also implies that every Seimas member may implement this right
by himself or together with other Seimas members, or through
the structural subdivisions of the Seimas, as the
representation of the Nation, indicated in the Statute of the
Seimas. It should be noted that, under the Constitution,
certain draft laws may be presented to the Seimas only when
certain subjects indicated by the Constitution implement
certain powers established expressis verbis by the
Constitution; for example, the President of the Republic signs
international treaties of the Republic of Lithuania and
presents them to the Seimas for ratification (Item 2 of Article
84 of the Constitution), the Government prepares a draft state
budget and presents it to the Seimas (Item 4 of Article 94,
Article 130 of the Constitution), the Seimas, following the
proposal of the Government, establishes and abolishes
Ministries of the Republic of Lithuania (Item 8 of Article 67
of the Constitution).
In the context of the constitutional justice case at issue
it should be noted that when implementing the constitutional
right of legislation initiative every member of the Seimas
himself or together with other members of the Seimas or through
the structural subdivisions of the Seimas, indicated in the
Statute of the Seimas, may prepare any draft law and present to
the Seimas for consideration, except the ones which, under the
Constitution, may be presented to the Seimas only when certain
subjects indicated by the Constitution implement certain powers
established expressis verbis by the Constitution, regardless of
to what structural subdivision or subdivisions of the Seimas a
member of the Seimas belongs, and regardless of the purpose,
powers, etc. of this subdivision or subdivisions.
A member of the Seimas himself or together with other
members of the Seimas or through the structural subdivisions of
the Seimas indicated in the Statute of the Seimas may present
comments, proposals, amendments, supplements regarding the
draft law under the consideration of the Seimas. Presentation
of such comments, proposals, amendments, supplements is not
regarded as legislation initiative because it has already been
implemented; presentation of comments, proposals regarding the
considered draft law, amendments, and supplements differs from
the legislation initiative in its purpose, since these are
different stages of the legislative procedure (Constitutional
Court rulings of 8 November 1993 and 25 January 2001).
The Seimas may establish such a legal regulation of
presenting the amendments, supplements of the considered draft
laws, when the future of the amendments, supplements presented
by members of the Seimas is related to whether they are
supported by a certain number of members of the Seimas. The
Constitutional Court when assessing such a legal regulation set
in the Statute of the Seimas has stated that it does not deny
the right of members of the Seimas to participate in the
considerations of a draft law, present amendments and
supplements of the law (Constitutional Court ruling of 25
January 2001).
5. Under Paragraph 1 of Article 7 of the Constitution, any
law or other act, which is inconsistent with the Constitution,
shall be invalid. Laws adopted by the Seimas, other legal acts
must be in compliance with the Constitution. The Constitutional
Court may recognise a law or other legal act adopted by the
Seimas as contradicting to the Constitution; pursuant to the
Law on the Constitutional Court, the Constitutional Court can
do that by passing a ruling; in cases provided for by the
Constitution and the Law on the Constitutional Court the
Constitutional Court makes decisions and also provides
conclusions. The rulings, decisions and conclusions of the
Constitutional Court are final and not subject to appeal as
well as obligatory to all; a Constitutional Court ruling
constitutes one whole, its constituent parts are interrelated;
when passing new laws, amending, supplementing already adopted
laws and other legal acts, state institutions are bound by the
concept of the provisions of the Constitution and other legal
arguments provided in the reasoning part of a Constitutional
Court ruling (Constitutional Court ruling of 30 May 2003).
It should be noted that from the day of public
announcement of a ruling or other decision of the
Constitutional Court in the courtroom to its official
publishing (in the official gazette "Valstybės žinios") a
certain period of time has to pass. Thus, usually after the
Constitutional Court ruling has been announced in the
courtroom, its content is known already before it is published
officially, although according to the procedure set by the
Constitution and laws this Constitutional Court ruling is not
valid yet.
Under Paragraph 1 of Article 107 of the Constitution, a
law (or part thereof) may not be applied from the day of
official promulgation of the decision of the Constitutional
Court that the act in question (or part thereof) is in conflict
with the Constitution. Thus, when the Constitutional Court
ruling by which a law (or part thereof) is recognised as
contradicting to the Constitution becomes effective, various
uncertainties, lacunae legis, gaps in the legal regulation,
even vacuum may appear within the legal system. Then it is
necessary to correct the legal regulation in such a way so that
the gaps in the legal regulation and other uncertainties are
removed and the legal regulation becomes clear and harmonized.
Under the Constitution, the Constitutional Court, having
inter alia assessed what legal situation might appear after a
Constitutional Court ruling becomes effective, may establish
the date when this Constitutional Court ruling is to be
officially published; the Constitutional Court may postpone the
official publishing of its ruling if it is necessary to give
the legislator certain time to remove the lacunae legis which
would appear if the relevant Constitutional Court ruling was
officially published immediately after it had been publicly
announced in the hearing of the Constitutional Court and if
they constituted preconditions to basically deny certain values
protected by the Constitution. The said postponement of
official publishing of a Constitutional Court ruling (inter
alia a ruling by which a certain law (or part thereof) is
recognised as contradicting to the Constitution) is a
presumption arising from the Constitution in order to avoid
certain effects unfavourable to the society and the state, as
well as the human rights and freedoms, which might appear if a
relevant Constitutional Court ruling was officially published
immediately after its official announcement in the hearing of
the Constitutional Court and if it became effective on the same
day after it had been officially published.
It should be stressed that the legislator, when adopting
new, amending and supplementing the existing laws, may not
disregard the concept of the provisions of the Constitution and
other legal arguments set forth in a Constitutional Court
ruling, which was officially published and became effective.
Otherwise, preconditions would be created to recognise the
laws, provided the Constitutional Court was addressed regarding
their constitutionality, as contradicting to the Constitution.
In the context of the constitutional justice case at issue it
should also be stressed that such preconditions could appear
also in the cases when the laws are adopted, valid laws amended
and supplemented while disregarding the concept of the
provisions of the Constitution and other legal arguments stated
in the Constitutional Court ruling which was publicly announced
at the hearing of the Constitutional Court but had not yet been
published officially, regardless of whether or not that
Constitutional Court ruling recognised a certain law (or part
thereof) to be in conflict with the Constitution.
6. One is to hold that the said statements regarding the
time passing from the public announcement of the Constitutional
Court ruling in the courtroom till the official publishing of
this ruling may be applied mutatis mutandis to conclusions and
decisions of the Constitutional Court.
7. The Seimas may establish a procedure (procedures) of
how certain decisions should be made in the Seimas when
reacting to the legal situation which could possibly appear
after a decision (ruling, conclusion) of the Constitutional
Court becomes effective, inter alia when it is necessary to
correct the legal regulation in such a way that the gaps in the
legal regulation and other uncertainties were removed. When
establishing the said procedure the norms and principles of the
Constitution must be paid heed to. In the context of the
constitutional justice case at issue it should be noted that
when establishing the said procedure the right of legislative
initiative of Seimas members and other subjects provided for by
the Constitution may not be denied.
8. In chapter twenty eight-1 of the Statute of the Seimas
(wording of 22 December 1998 with subsequent amendments and
supplements) "Implementation of Rulings, Conclusions and
Decisions of the Constitutional Court" the following is
established:
"Article 181-1. Revision of the Implementation of Rulings,
Conclusions and Decisions of the Constitutional Court
The Deputy President of the Seimas, appointed by the
President of the Seimas, shall be responsible for the
supervision in the Seimas of the implementation of rulings,
conclusions and decisions of the Constitutional Court.
Article 182-2. Implementation of Constitutional Court
rulings
1. When a Constitutional Court ruling enters into force
which states that a law (or a part thereof) or any other act
(or a part thereof) adopted by the Seimas is not in compliance
with the Constitution of the Republic of Lithuania or a
constitutional law, the Committee on Legal Affairs or, by the
advice thereof, any other Seimas committee must, not later than
within 3 months, prepare and submit to the Seimas for
consideration a draft amending of the law (or a part thereof)
or any other act (or a part thereof) adopted by the Seimas
which the Constitutional Court has declared that it is not in
compliance with the Constitution of the Republic of Lithuania.
The Seimas Board may, by the advice of the Committee on Legal
Affairs, propose to the Government to prepare a draft amending
of the appropriate law (or a part thereof).
2. When preparing draft amending of the laws or any other
acts adopted by the Seimas, specified in Paragraph 1 of this
Article, the gaps and inconsistencies in the legal regulation
as well as other shortcomings and arguments set forth in the
Constitutional Court ruling must be taken into consideration.
3. On the instruction of the Seimas Board, the Legal
Department of the Office of the Seimas must, within one month
after the entry into force of the Constitutional Court ruling,
submit its proposals concerning the implementation of the
Constitutional Court ruling to the Seimas Committee on Legal
Affairs or, on its advice, to another Seimas committee.
Article 181-3. Implementation of the Constitutional Court
Conclusions on a Treaty of the Republic of Lithuania
1. Upon the receipt of the conclusions of the
Constitutional Court stating that a treaty, to which the
Republic of Lithuania is a party, is not in compliance with the
Constitution of the Republic of Lithuania and prior to the
ratification of such treaty at the Seimas, the Seimas shall, in
the manner prescribed by this Statute, appoint the Seimas
committees responsible for harmonization of the treaty with the
Constitution of the Republic of Lithuania as well as submission
of this issue for consideration at the Seimas. In all cases,
the Committee on Legal Affairs shall be the principal
committee. When necessary, the Seimas may appoint an additional
committee.
2. The provisions of Article 181-2 of this Statute shall
apply for the implementation of the Constitutional Court
conclusions as far as this is related to the time limits and
procedure of consideration at the Seimas committee.
Article 181-4. Consideration and passing of laws at the
Seimas and other acts passed by the Seimas
Draft amending of laws (or parts thereof) and other acts
(or parts thereof) passed by the Seimas, which are drawn up
when implementing the decisions of the Constitutional Court
referred to in this Chapter, shall be considered and passed in
accordance with the procedure established in Part V of this
Statute."
9. It has been mentioned that the petitioner grounds his
doubts regarding the compliance of the Law with the
Constitution on the fact that the Seimas adopted the Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1 while reacting to the Constitutional Court ruling of 24
December 2002, thus, in the opinion of the petitioner, pursuant
to the provisions of chapter twenty eight-1 of the Statute of
the Seimas "Implementation of Rulings, Conclusions and
Decisions of the Constitutional Court" the draft law must have
been prepared and considered by the Committee on Legal Affairs
of the Seimas or other committee under its offering as the
principal committee. The provisions that when the
Constitutional Court ruling becomes effective, not later than
within 3 months the Committee on Legal Affairs of the Seimas or
other committee under its offering shall prepare and present to
the Seimas a draft amendment of the law (or part thereof) or
other act (or part thereof) adopted by the Seimas, which were
found by the Constitutional Court as contradicting to the
Constitution, for consideration and that further to the
presentation of the Committee on Legal Affairs of the Seimas
the Board of the Seimas may propose that the Government prepare
a draft amendment of the relevant law (or part thereof), are
established in Paragraph 1 of Article 181-2 of the Statute of
the Seimas.
10. If one construes Paragraph 1 of Article 181-2 of the
Statute of the Seimas only literally and linguistically, it may
be possible to state that it, purportedly, establishes a legal
regulation whereby after a Constitutional Court ruling, by
which a certain law (or part thereof) or other legal act (or
part thereof) adopted by the Seimas is recognised as
contradicting to the Constitution becomes effective, only the
Committee on Legal Affairs of the Seimas or other committee
upon its offering may prepare and present to the Seimas the
draft amendments, supplements of this law or other legal act
adopted by the Seimas. In other words, if construing Paragraph
1 of Article 181-2 of the Statute of the Seimas literally
alone, it would be possible to assume that only the Committee
on Legal Affairs of the Seimas or other committee under its
offering has the exclusive right (prerogative) to prepare and
present to the Seimas the said drafts, thus, no other committee
of the Seimas structural subdivision of the Seimas, as the
representation of the Nation, no other member of the Seimas or
group of members of the Seimas have this right. Such
construction of Paragraph 1 of Article 181-2 of the Statute of
the Seimas would demonstrably deny the concept of the Seimas,
as the representation of the Nation, established in the
Constitution. In this context it should be noted that, pursuant
to the way it was stated in the Constitutional Court ruling of
13 May 2004, no such legal regulation, by which the
constitutional functions of the Seimas, inter alia the
legislative function would be denied or the possibilities to
implement them were restricted, may be established because this
way the Seimas, the representation of the Nation, would be
obstructed in acting effectively in the interests of the Nation
and the State of Lithuania.
The said only linguistic construction of Paragraph 1 of
Article 181-2 of the Statute of the Seimas would also mean that
reacting to the Constitutional Court rulings by which certain
laws (parts thereof) or other legal acts (parts thereof)
adopted by the Seimas were recognised as contradicting to the
Constitution, is a monopoly of the only Seimas committee, the
Committee on Legal Affairs of the Seimas (or under its
presentation another committee), during the legislative
procedure. When construing Paragraph 1 of Article 181-2 of the
Statute of the Seimas this way, the legal meaning of the
Constitutional Court rulings and the official constitutional
doctrine framed within them would be distorted or even denied
because, under the Constitution, the Constitutional Court
rulings are mandatory to all, thus, no subject participating in
adoption of laws or other legal acts by the Seimas, may be
obstructed to ground his legislative initiatives and other
activity on the Constitutional Court rulings as well as the
official constitutional doctrine formulated within them or
other statements.
In this respect the fact whether or not any subject
participating in the legislative process grounds his position
on the Constitutional Court rulings, the official
constitutional doctrine stated in them or other statements, or
other arguments, is not and may not be of importance.
11. It should be stated that the provisions of Paragraph 1
of Article 181-2 of the Statute of the Seimas are framed in
such a way that a different, namely, systemic and teleological
construction of this paragraph based on the presumptions of
reasoning of the legislator and those of the constitutionality
of the legal regulation is possible, when no doubts arise
regarding the compliance of the legal regulation established in
this paragraph with the Constitution. When construing Paragraph
1 of Article 181-2 of the Statute of the Seimas in a systemic
manner, the powers of the Committee on Legal Affairs of the
Seimas or following its offering other Seimas committee to
prepare and present to the Seimas the draft amendments,
supplements of this law or other legal act adopted by the
Seimas, after a Constitutional Court ruling, by which a certain
law (or part thereof) or other legal act (or part thereof)
adopted by the Seimas was recognised as contradicting to the
Constitution, became effective, should be treated not as an
exceptional right (prerogative) of the Committee on Legal
Affairs of the Seimas or further to its presentation of another
Seimas committee, but rather an obligation of the Committee on
Legal Affairs of the Seimas or, further to its presentation, of
another Seimas committee to properly react to the
Constitutional Court rulings.
12. When construing Paragraph 1 of Article 181-2 of the
Statute of the Seimas in a systemic manner, it is necessary
inter alia to take into consideration the provisions of the
Statute of the Seimas regulating the implementation of the
constitutionally established legislative initiative right of a
Seimas member in the Seimas.
In the context of the heard constitutional justice case it
should be noted that pursuant to Item 6 of Article 9 of the
Statute of the Seimas (wording of 22 December 1998 and 9
November 2004), a member of the Seimas has the right, according
to the procedure set by the Statute of the Seimas, to prepare
and present draft laws and other legal acts to the Seimas for
consideration. Under the Statute of the Seimas, the draft laws
and other legal acts of the Seimas and proposals regarding them
are presented to the Seimas by the institutions and persons
who, under the Constitution, have the right of legislative
initiative (Paragraph 1 of Article 135 (wordings of 22 December
1998 and 9 November 2004)); the draft law or other legal act of
the Seimas is presented in the Seimas sitting by the initiator
of the draft or his representative (Paragraph 1 of Article 141
(wording of 5 September 2002)); having decided to initiate the
consideration procedure of the draft, the Seimas during the
same sitting shall set the preliminary date for its
consideration in the Seimas (after one week at the earliest and
until the end of the session at the latest), in the principal
committee and additional committees for further consideration
or improvement of the Draft (Paragraph 2 of Article 144). It
should also be noted that the Statute of the Seimas (namely its
Part V) establishes the legal regulation pursuant to which all
Seimas members and Seimas committees may present comments and
proposals regarding the registered and/or considered draft
legal acts in the Seimas. In this regard none of the Seimas
committees have any exceptions provided in Part V of the
Statute of the Seimas.
Thus, Paragraph 1 of Article 181-2 of the Statute of the
Seimas may not be construed as establishing that, purportedly,
after a Constitutional Court ruling, by which a certain law (or
part thereof) or other legal act (or part thereof) adopted by
the Seimas was recognised as contradicting to the Constitution,
becomes effective, only the Committee on Legal Affairs of the
Seimas or, following its offering, another committee has the
right to prepare and present to the Seimas draft amendments and
supplements of that law or other legal act adopted by the
Seimas and that no other committee of the Seimas or a
structural subdivision of the Seimas, as the representation of
the Nation, or a Seimas member or group of Seimas members has
such a right. It has been held in this Ruling of the
Constitutional Court that pursuant to Paragraph 1 of Article
181-2 of the Statute of the Seimas the Committee on Legal
Affairs of the Seimas or, following its offering, another
committee is obliged to properly react to Constitutional Court
rulings recognising certain laws (parts thereof) or other legal
acts (parts thereof) adopted by the Seimas as contradicting to
the Constitution rather than having an exceptional right. When
construing Paragraph 1 of Article 181-2 of the Statute of the
Seimas in a systemic manner, it is clear that by the legal
regulation established in this paragraph neither the right of
legislative initiative of members of the Seimas nor the
legislative procedures set in the Statute of the Seimas
(namely, Part V) and related to the implementation of this
right is denied.
13. At the same time it should be noted that the wording
"Implementation of Rulings, Conclusions and Decisions of the
Constitutional Court" (and various modifications of it) used in
chapter twenty eight-1 of the Statute of the Seimas is not
irreproachable from the legal point of view and is to be
corrected. The other legal regulation set in this chapter is
also not irreproachable.
Pursuant to the Constitution, a law (or part thereof) or
other legal act (or part thereof) may not be applied from the
day of official promulgation of the decision of the
Constitutional Court that the act in question (or part thereof)
is in conflict with the Constitution; Constitutional Court
rulings are final and not subject to appeal. Implementation of
rulings, conclusions and decisions of the Constitutional Court
may not be related to whether or not the Seimas, taking account
of a corresponding ruling, conclusion and decision of the
Constitutional Court, adopted certain laws or other legal acts
and/or amended, supplemented laws (parts thereof) or other
legal acts (parts thereof) which were recognised by the
Constitutional Court as contradicting to the Constitution,
whether or not it made or failed to make some other decisions
while reacting to the rulings, conclusions and decisions of the
Constitutional Court. The wording "Implementation of Rulings,
Conclusions and Decisions of the Constitutional Court" (and its
various modifications) used in chapter twenty eight-1 of the
Statute of the Seimas may not be construed as meaning that,
purportedly, the rulings, conclusions and decisions of the
Constitutional Court are not and should not be implemented
until the Seimas, while taking account of the rulings,
conclusions and decisions of the Constitutional Court, has
adopted a law or other legal act, amended and supplemented the
laws (parts thereof) or other legal acts (parts thereof), which
were recognised by the Constitutional Court as contradicting to
the Constitution, or until it has made any other decisions thus
reacting to the rulings, conclusions and decisions of the
Constitutional Court.
The fact that the Statute of the Seimas (namely, chapter
twenty eight-1) establishes the actions to be made inter alia
in the Seimas after a Constitutional Court ruling recognising a
law (or part thereof) or other legal act (or part thereof)
adopted by the Seimas as contradicting to the Constitution
becomes effective does not mean that the opportunity of other
subjects, inter alia legislative subjects and other subjects
participating in the legislative procedure in the Seimas, to
respectively react to the said rulings of the Constitutional
Court is denied.
In this context it should be noted that, as held in the
Ruling of the Constitutional Court, under Item 4 Article 94 and
Article 130 of the Constitution the Government prepares a draft
State Budget and presents it to the Seimas; by the legal
regulation established in the Statute of the Seimas (namely
chapter twenty eight-1) the right of the Government to present
to the Seimas certain amendments and supplements of the law on
the State Budget by which it is suggested to amend the law on
the state budget or to adopt another decision on this matter by
which it would be reacted to the Constitutional Court ruling
recognising the law on the state budget (or parts thereof) as
contradicting to the Constitution is not denied.
Under the Constitution, the Constitutional Court shall
consider and adopt a decision whether the laws and other acts
adopted by the Seimas are not in conflict with the Constitution
(Paragraph 1 of Article 105 of the Constitution), also whether
acts of the President of the Republic and acts of the
Government are not in conflict with the Constitution and laws
(Paragraph 2 of Article 105 of the Constitution). In its ruling
of 13 December 2004, the Constitutional Court held that from
the constitutional principle of a state under the rule of law
and other constitutional imperatives arises the requirement to
the legislator to pay heed to the hierarchy of legal acts which
originates from the Constitution. This requirement inter alia
means that it is prohibited to regulate the public relations by
legal acts of lower power, which may be regulated only by legal
acts of higher power, it also means that it is prohibited to
establish in legal acts of lower power any such legal
regulation, which would compete with the one established in the
legal acts of higher power. It has been mentioned that under
the Law on the Constitutional Court the Constitutional Court
may recognise, by means of a ruling, a law adopted by the
Seimas as contradicting to the Constitution. Taking account of
the principle of supremacy of the Constitution, of the
constitutional principle of the rule of law and the hierarchy
of legal acts established in the Constitution, one is to hold
that the Constitutional Court, under the Constitution and the
Law on the Constitutional Court, enjoys powers to investigate
and pass a ruling whether constitutional laws (parts thereof)
are not in conflict with the Constitution, whether laws (parts
thereof) are not in conflict with the Constitution and
constitutional laws, whether substatutory legal acts (parts
thereof) adopted by the Seimas are not in conflict with the
Constitution, constitutional laws and laws, whether acts (parts
thereof) of the President of the Republic are not in conflict
with the Constitution, constitutional laws and laws, and
whether acts (parts thereof) of the Government are not in
conflict with the Constitution, constitutional laws and laws.
After it has been established in the Statute of the Seimas
(namely its chapter twenty eight-1) what actions should be made
in the Seimas inter alia when a Constitutional Court ruling
recognising a certain law (or part thereof) or other legal act
(or part thereof) adopted by the Seimas as contradicting to the
Constitution and constitutional laws becomes effective and upon
failure to establish what actions should be taken in the Seimas
when the Constitutional Court passes a ruling that
constitutional laws are in conflict with the Constitution or
that substatutory legal acts (parts thereof) adopted by the
Seimas are in conflict with the laws, a corresponding legal gap
in the legal regulation has been created in the Statute of the
Seimas.
In this context it should also be stated that the
Constitution does not prevent the Seimas when it inter alia
adopts certain laws or other legal acts and/or amends and
supplements laws (parts thereof) and other legal acts (parts
thereof) to react also to the Constitutional Court rulings
recognising acts (parts thereof) of the President of the
Republic and/or the Government as being in conflict with the
Constitution, constitutional laws and laws.
14. When deciding whether the Law on the Supplement and
Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1
(wording of 28 January 2003) further to the procedure of its
adoption is in the compliance with Paragraph 1 of Article 69 of
the Constitution in the aspect indicated by the petitioner
(regarding the fact that, according to the petitioner, when
reacting to the Constitutional Court ruling of 24 December 2002
and in the absence of presentation of the Committee on Legal
Affairs, the Committee on State Administration and Local
Authorities was appointed as the principal one for
consideration of this draft Law and it prepared the said draft
Law and presented it to the Seimas for consideration), it
should be noted that, as held in this Ruling of the
Constitutional Court, Paragraph 1 of Article 181-2 of the
Statute of the Seimas may not be construed as the one
establishing that, purportedly, after a ruling of the
Constitutional Court recognising a law (or part thereof) or
other legal act (or part thereof) adopted by the Seimas as
contradicting to the Constitution becomes effective, only the
Committee on Legal Affairs of the Seimas or, following its
offering, another committee has the exceptional right
(prerogative) to prepare and present to the Seimas draft
amendments and supplements of the said laws or other legal acts
adopted by the Seimas and that no other Seimas committee and
structural subdivision of the Seimas as the representation of
Nation, nor a Seimas member or a group of Seimas members have
this right, also, that neither the right of legislative
initiative of Seimas members established in the Constitution
nor the legislative procedures set in the Statute of the Seimas
(namely, its Part V) and related to the implementation of this
right are denied by the legal regulation established in
Paragraph 1 of Article 181-2 of the Statute of the Seimas.
It should also be noted that in the explanatory note of
the Draft Law on Supplementing and Amending Article 87 of the
Law on Elections to Municipal Councils and Supplementing the
Law with Article 88-1 (No. IXP-2222) presented by the Seimas
member P. Papovas and registered in the Register of Draft Laws
and Proposals received by the Seimas Sittings Secretariat on 16
January 2003 it was inter alia indicated that "the purpose of
presented draft laws is to remove, further to the right of
legislative initiative, the gap in the legal normative
regulation after the Constitutional Court construed in its
ruling of 24 December 2004 that <...> pursuant to the principle
of prohibition of a double mandate established in the
Constitution the same persons may not at the same time
discharge functions of implementing state power and be members
of municipal councils through which the right of
self-government is implemented".
15. It has been mentioned that on the 16 January 2003 in
the Register of Draft Laws and Proposals received by the Seimas
Sittings Secretariat the Draft Law on Supplementing and
Amending Article 87 of the Law on Elections to Municipal
Councils and Supplementing the Law with Article 88-1 (No.
IXP-2222) presented by the Seimas member P. Papovas was
registered and that the Seimas member presented this draft law
in the Seimas sitting of 21 January 2003.
It should be stated that in this way the Seimas member P.
Papovas implemented the right of legislative initiative in the
Seimas enjoyed by him as a Seimas member pursuant to the
Constitution.
16. It has been mentioned that during the 23 January 2003
Seimas sitting further to the proposal of the Assembly of
Elders, the Seimas Committee on State Administration and Local
Authorities was appointed as the principal committee to
consider the Draft Law on Supplementing and Amending Article 87
of the Law on Elections to Municipal Councils and Supplementing
the Law with Article 88-1 (No. IXP-2222) and the Committee on
Legal Affairs of the Seimas as additional one and also that the
date of considering this draft law by the Seimas was appointed,
i.e. 28 January 2003.
One is to hold that in this way the Seimas adopted a
decision provided for by Paragraph 2 of Article 144 of the
Statute of the Seimas.
17. It has been mentioned that in the Seimas, while
continuing the procedure of consideration of the Draft Law on
Supplementing and Amending Article 87 of the Law on Elections
to Municipal Councils and Supplementing the Law with Article
88-1 (No. IXP-2222), the Seimas Committee on State
Administration and Local Authorities in its meeting of 27
January 2003 considered the Draft Law on Supplementing and
Amending Article 87 of the Law on Elections to Municipal
Councils and Supplementing the Law with Article 88-1 (No.
IXP-2222) and approved of the improved draft law and also that
on 28 January 2003 the said improved draft law, now called the
Republic of Lithuania Draft Law on the Supplement and Amendment
of Articles 86, 87 of the Law on Elections to Municipal
Councils and Its Supplement with Article 88-1 was registered in
the Register of Draft Laws and Proposals received by the Seimas
Sittings Secretariat and was given reference number
IXP-2222(2SP).
The case contains no data that on this stage of
legislation any of the requirements of the Statute of the
Seimas or other legal acts were violated.
18. It has been mentioned that on 28 January 2003 the
Legal Department of the Office of the Seimas presented its
conclusions regarding the Draft Law on the Supplement and
Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1 (No.
IXP-2222(2SP)) in which inter alia it was stated that the
provision of the Draft Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1 (No. IXP-2222(2SP))
concerning the fact that the norms of Paragraph 2 of Article
88-1 of the Law on Elections to Municipal Councils regarding
the refusal of the municipal council mandate by a person
elected as a municipal council member before the first sitting
of the municipal council were to be applied from the municipal
council elections of the next term of office, contradicted to
the Constitutional Court ruling of 24 December 2002 and that,
under Paragraph 5 of Article 72 of the Law on the
Constitutional Court, the power of the Constitutional Court to
recognise a legal act or part thereof as unconstitutional may
not be overruled by a repeated adoption of a like legal act or
part thereof.
Such statements of the conclusion of the Legal Department
of the Office of the Seimas mean that in the opinion of the
Legal Department of the Office of the Seimas, a relevant
provision of the Draft Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1 (No. IXP-2222(2SP)), which
was approved of by the Seimas Committee on State Administration
and Local Authorities in its meeting of 27 January 2003
(indicated in Paragraph 2 of Article 4 of the said draft) was
in conflict with the Constitution.
In this context it should be mentioned that Paragraph 2 of
Article 4 of the Law on the Supplement and Amendment of
Articles 86, 87 of the Law on Elections to Municipal Councils
and Its Supplement with Article 88-1, which was adopted on 28
January 2003, by the Constitutional Court ruling of 30 May 2003
was recognised as contradicting to Article 4, Paragraphs 1 and
2 of Article 5, Paragraph 4 of Article 59, Paragraphs 1 and 2
of Article 60, Paragraph 1 of Article 83, Article 99,
Paragraphs 1 and 2 of Article 107, Paragraphs 1 and 4 of
Article 119, Paragraph 2 of Article 120, Paragraphs 1 and 2 of
Article 123, and Paragraph 1 of Article 134 of the
Constitution.
It is established in Paragraph 2 of Article 138 of the
Statute of the Seimas (wording of 10 October 2000) that "If the
Legal Department presents conclusions that a draft is not in
compliance with the Constitution of the Republic of Lithuania,
the Committee on Legal Affairs must preliminarily consider this
draft."
It has been mentioned that the laws adopted by the Seimas
must be in compliance with the Constitution. The compliance of
laws and other legal acts of the Seimas with the Constitution
is ensured not only by the constitutional control of the legal
acts adopted by the Seimas, which is carried out by the
Constitutional Court when the latter decides whether the
constitutional laws (parts thereof) adopted by the Seimas are
not in conflict with the Constitution, whether laws (parts
thereof) are not in conflict with the Constitution and
constitutional laws, whether substatutory legal act (parts
thereof) adopted by the Seimas are not in conflict with the
Constitution, constitutional laws and laws, but also the
internal preventive control implemented by the Seimas in the
manner established in the Statute of the Seimas, which prevents
adoption of laws and other legal acts which could possibly
contradict to the Constitution or other legal acts of superior
power.
The provision of Paragraph 2 of Article 138 of the Statute
of the Seimas (wording of 10 October 2000) stating that if the
Legal Department presents a conclusion that a draft law is not
in compliance with the Constitution, the Committee on Legal
Affairs must preliminarily consider this draft, should be
treated as one of the legal means to seek to achieve that the
laws and other legal acts adopted by the Seimas would not be in
conflict with the Constitution.
From the case material it is clear that after the Legal
Department of the Office of the Seimas presented its conclusion
on 28 January 2003, which inter alia stated that, in the
opinion of this department, a certain provision of the Draft
Law on the Supplement and Amendment of Articles 86, 87 of the
Law on Elections to Municipal Councils and Its Supplement with
Article 88-1 (No. IXP-2222(2SP)), which had been approved of by
the Seimas Committee on State Administration and Local
Authorities in its meeting of the 27 January 2003, contradicted
to the Constitution, the said draft law was not considered in
the Committee on Legal Affairs of the Seimas, and on the same
day the relevant law was adopted by the Seimas under special
urgency procedure.
Thus Paragraph 2 of Article 138 of the Statute of the
Seimas (wording of 10 October 2000) was violated. At the same
time it should be noted that in this case a violation was made
which prevented application of one of the Seimas internal
preventive legal means enabling to seek to achieve that the
adopted laws and other legal acts be in compliance with the
Constitution. Thus, the violation of Paragraph 2 of Article 138
of the Statute of the Seimas (wording of 10 October 2000)
should be treated as an essential violation of the legislative
procedure.
It has been mentioned that under Paragraph 1 of Article 69
of the Constitution, laws shall be adopted in the Seimas in
accordance with the procedure established by law, and, under
Article 76 of the Constitution, the structure and procedure of
activities of the Seimas shall be established by the Statute of
the Seimas, which has the power of law. In this Ruling of the
Constitutional Court it was stated that, under the
Constitution, the legislative procedure may be regulated by the
Statute of the Seimas and also by other laws and that the duty
of the Seimas to follow the legislation rules defined by the
Statute of the Seimas should be treated as a constitutional
duty. The Seimas, when it adopts laws and other legal acts, is
bound not only directly by the Constitution but also by the
Statute of the Seimas.
Having stated that after the Legal Department of the
Office of the Seimas presented its conclusion on the 28 January
2003, which inter alia stated that the provision of the Draft
Law on the Supplement and Amendment of Articles 86, 87 of the
Law on Elections to Municipal Councils and Its Supplement with
Article 88-1 (No. IXP-2222(2SP)), that the norms of Paragraph 2
of Article 88-1 of the Law on Elections to Municipal Councils
regarding refusing of the mandate of a council member by a
person elected a member of the municipal council before the
first sitting of the municipal council were to be applied from
the municipal council elections of the new term of office were
in conflict with the Constitution, and after the Committee on
Legal Affairs of the Seimas failed to consider the said draft
law, Paragraph 2 of Article 138 of the Statute of the Seimas
(wording of 10 October 2000) was violated and that the
violation of Paragraph 2 of Article 138 of the Statute of the
Seimas (wording of 10 October 2000) should be treated as an
essential violation of the legislative procedure, it should
also be stated that in this stage of the legislative procedure
the provision of Paragraph 1 of Article 69 of the Constitution,
indicating that laws shall be adopted in the Seimas in
accordance with the procedure established by law, was also
violated.
19. Taking account of the arguments set forth, one is to
draw a conclusion that the Law on the Supplement and Amendment
of Articles 86, 87 of the Law on Elections to Municipal
Councils and Its Supplement with Article 88-1 according to the
procedure of its adoption is in conflict with Paragraph 1 of
Article 69 of the Constitution.
20. Having stated that the Law on the Supplement and
Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1
according to the procedure of its adoption is in conflict with
Paragraph 1 of Article 69 of the Constitution, the
Constitutional Court in this case will not consider the
provisions of the Statute of the Seimas regulating further
legislative procedures and will not investigate whether these
other procedures established in the Statute of the Seimas were
violated when the said law was being adopted in the Seimas.
III
On the compliance of Paragraph 2 of Article 4 of the Law
on the Supplement and Amendment of Articles 86, 87 of the Law
on Elections to Municipal Councils and Its Supplement with
Article 88-1 (wording of 28 January 2003) with Paragraph 2 of
Article 5, Paragraph 1 of Article 6, Paragraph 1 of Article 7,
Paragraphs 1 and 2 of Article 107, Paragraph 2 of Article 119
of the Constitution, and the constitutional principle of a
state under the rule of law.
1. The petitioner-a group of Seimas members-has doubts
whether Paragraph 2 of Article 4 of the Law on the Supplement
and Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1
consolidating that "the norms of Paragraph 2 of Article 88-1 of
the Law on Elections to Municipal Councils regarding the
refusal of the mandate of the municipal council member by the
persons elected as a municipal council member before the first
sitting of the municipal council indicated in Article 3 of this
Law shall be applied from the elections to municipal councils
for the next term of office", is not in conflict, by its
content, with the principle of a state under the rule of law
set in the Preamble to the Constitution, Paragraph 2 of Article
5, Paragraph 1 of Article 6, Paragraph 1 of Article 7,
Paragraphs 1 and 2 of Article 107, and Paragraph 2 of Article
119 of the Constitution.
2. It has been mentioned that by the Constitutional Court
ruling of 30 May 2003 it was recognised that Paragraph 2 of
Article 4 of the Law was in conflict with Article 4, Paragraphs
1 and 2 of Article 5, Paragraph 4 of Article 59, Paragraphs 1
and 2 of Article 60, Paragraph 1 of Article 83, Article 99,
Paragraphs 1 and 2 of Article 107, Paragraphs 1 and 4 of
Article 119, Paragraph 2 of Article 120, Paragraphs 1 and 2 of
Article 123, and Paragraph 1 of Article 134 of the
Constitution.
Thus, the question of the compliance of Paragraph 2 of
Article 4 of the Law with the Constitution was solved by the
Constitutional Court ruling of 30 May 2003.
It has been mentioned that the Constitutional Court ruling
of 30 May 2003 was officially published in the official gazette
"Valstybės žinios" and became effective on 31 May 2003.
3. Under Item 3 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, by a decision, the Constitutional
Court shall refuse to consider petitions to investigate the
compliance of a legal act with the Constitution, if the
compliance of the legal act with the Constitution indicated in
the petition has already been investigated by the
Constitutional Court and the ruling on this issue adopted by
the Constitutional Court is still in force.
In Paragraph 3 of Article 69 of the Law on the
Constitutional Court it is established that in the event that
the grounds for refusal to consider a petition have been
established after the commencement of the investigation of the
case during the hearing of the Constitutional Court, a decision
to dismiss the case shall be adopted.
4. Taking account of the arguments set forth, the part of
the case regarding the compliance of Paragraph 2 of Article 4
of the Law on the Supplement and Amendment of Articles 86, 87
of the Law on Elections to Municipal Councils and Its
Supplement with Article 88-1 (wording of 28 January 2003) with
Paragraph 2 of Article 5, Paragraph 1 of Article 6, Paragraph 1
of Article 7, Paragraphs 1 and 2 of Article 107, Paragraph 2 of
Article 119 of the Constitution, and the constitutional
principle of a state under the rule of law is to be dismissed.
IV
On the compliance of Paragraph 1 of Article 88-1 (wording
of 28 January 2003) of the Law on Elections to Municipal
Councils with the constitutional principle of a state under the
rule of law.
1. The petitioner-group of Seimas members has doubts
whether the Law on the Supplement and Amendment of Articles 86,
87 of the Law on Elections to Municipal Councils and Its
Supplement with Article 88-1 (wording of 28 January 2003),
according to the procedure of its adoption, is not in conflict
with the principle of a state under the rule of law established
in the Preamble to the Constitution.
2. The constitutional principle of a state under the rule
of law is consolidated not only by the striving for an open,
just and harmonious civil society and state under the rule of
law proclaimed in the Preamble to the Constitution, but also in
various aspects by other provisions of the Constitution. The
investigation of the compliance of legal acts (parts thereof)
with the striving for an open, just and harmonious civil
society and state under the rule of law proclaimed in the
Preamble to the Constitution implies the investigation of their
compliance with the constitutional principle of a state under
the rule of law (Constitutional Court rulings of 13 December
2004 and 29 December 2004).
3. When reasoning his position, the petitioner refers to
Article 3 of the Law. It should be stressed that in this
article the municipal council elections relations are not
directly regulated-by this article the Law on Elections to
Municipal Councils (wording of 19 September 2002) was
supplemented with Article 88-1.
It has been mentioned that Article 88-1 of the Law on
Elections to Municipal Councils (wording of 28 January 2003)
adopted on 25 March 2004 by the Law on the Supplement and
Amendment of Articles 86, 87 of the Law on Elections to
Municipal Councils and Its Supplement with Article 88-1 was
amended and set forth in a new wording.
4. In Article 88-1 of the Law on Elections to Municipal
Councils (wording of 28 January 2003) the following was
established:
"1. The duties of a council member are incompatible with
the duties of the President of the Republic, a member of the
Seimas, a member of the Government, or with the duties of a
state official who, under the Constitution and laws, enjoys
powers to control or supervise the activities of
municipalities, also, with the duties of a county chief,
municipal controller or official of the service of the
municipal controller, with the duties of the director of
municipal administration or a public servant of municipal
administration.
2. If the person discharging the duties indicated in
Paragraph 1 of this Article is elected a municipal council
member or while being a municipal council member he discharges
the duties or takes the duties indicated in Paragraph 1 of this
Article, he must decide and refuse either these duties or the
mandate of a municipal council member. The elected council
member having decided to refuse the mandate of a council member
within 10 days before the day of the first sitting of the
municipal council shall hand in a notary approved application
regarding refusal of the mandate of a municipal council member
to the Central Electoral Commission personally or send it by
mail. Upon reception of this application the Central Electoral
Commission within 7 days before the day of the first municipal
council sitting shall decide on the loss of the mandate of a
municipal council member and acknowledgement of the mandate to
a new council member. The candidates from the post-elective
candidate list who decided to refuse the mandate of a municipal
council member shall within 7 days before the day of the first
municipal council sitting present the applications regarding
refusal of the mandate of a municipal council member to the
Central Electoral Commission. Under the procedure indicated in
Articles 86 and 87 of this Law, the Central Electoral
Commission shall decide regarding the person who has the powers
of a council member and is discharging or who has taken duties
which are incompatible with the duties of the municipal council
member."
5. The petitioner grounds his doubts on the fact that the
legislator, having established in Paragraph 1 of Article 88-1
(wording of 28 January 2003) of the Law on Elections to
Municipal Councils that duties of council member are
incompatible with the duties of the President of the Republic,
a Seimas member, a Government member, or with the duties of a
public official who, under the Constitution and laws, enjoys
powers to control or supervise activities of municipalities,
also, with the duties of a county chief, the municipal
controller or an official of the service of the municipal
controller, with the duties of the director of municipal
administration or a public servant of municipal administration,
failed to provide a final list of officials who, under the
Constitution, have the power to control or supervise activities
of municipalities.
Thus, the doubts of the petitioner regarding the
compliance of Paragraph 1 of Article 88-1 (wording of 28
January 2003) of the Law on Elections to Municipal Councils
with the constitutional principle of a state under the rule of
law are grounded on the fact that, in his opinion, a certain
legal regulation was not established in this paragraph, which,
according to the petitioner, should have been established. The
petitioner basically questions not the regulation expressis
verbis established in Paragraph 1 of Article 88-1 (wording of
28 January 2003) of the Law on Elections to Municipal Councils,
but rather a legislative omission present in this paragraph,
i.e. something, in the opinion of the petitioner, that was not
established in this paragraph but, in the opinion of the
petitioner, should, under the Constitution, have been
established by the legislator, i.e. the petition questions a
gap in the legal regulation which, in the opinion of the
petitioner, is prohibited by the Constitution.
In the opinion of the petitioner, the legislative omission
in Paragraph 1 of Article 88-1 (wording of 28 January 2003) of
the Law on Elections to Municipal Councils was presupposed by
the provision of this paragraph that "duties of a council
member are incompatible with <...> the duties of a state
official who, under the Constitution and laws, has powers to
control or supervise the activities of municipalities".
Thus, the petitioner in fact has doubts whether Paragraph
1 of Article 88-1 (wording of 28 January 2003) of the Law on
Elections to Municipal Councils is in compliance with the
constitutional principle of a state under the rule of law.
6. The legislator, when establishing duties incompatible
with the duties of a municipal council member, may choose
various ways of legal text wording, formulation of legal norms
and other provisions. Generally, it is possible to formulate
the said provisions by setting in a single law a final list of
the duties incompatible with the duties of a municipal council
member, which would name each of the duties incompatible with
the duties of a municipal council member separately and
precisely. At the same time, from the practical point of view,
it should be noted that this way of legal text wording might
create preconditions for appearance of such a legal situation,
where the said list, established in a single law, fails to
include all the duties incompatible with the duties of a
municipal council member further to various other laws. Thus,
there could always be doubts whether a given list is actually a
final one, i.e. exhaustive, and whether a relevant legal
regulation established in the law is in compliance with the
Constitution. The legal text wording and formulation of legal
norms and other provisions where a relevant law, instead of
providing a final list of the duties incompatible with the
duties of a municipal council member, would provide and
generalise the criteria according to which certain duties are
assigned to those incompatible with the duties of a municipal
council member, would much better ensure the requirements of
the Constitution, the consistency and harmony of the legal
regulation. It is obvious that in this way establishing the
duties incompatible with the duties of a municipal council
member, it is important to pay heed to inter alia the
imperatives of the Constitution that the same persons may not
discharge functions implementing the state power and at the
same time be members of the municipal council through which the
right of self-government is implemented, that the principle of
prohibition of a double mandate is established in the
Constitution, that the state officials who, under the
Constitution and laws, enjoy powers to control or supervise the
activities of municipalities may not be municipal council
members, also that the officials of institutions accountable to
the municipalities may not be municipal council members. In
this way, by setting in the law the duties incompatible with
the duties of municipal council member it is necessary to
establish by the law also the procedure of control of such
compatibility of duties in case uncertainties arise whether a
certain person may, under the Constitution, discharge certain
duties and be a municipal council member at the same time, so
that it would always be possible to decide efficiently whether,
under the Constitution, certain duties are incompatible with
the duties of a municipal council member.
7. In Paragraph 1 of Article 88-1 (wording of 28 January
2003) of the Law on Elections to Municipal Councils the duties
incompatible with the duties of a municipal council member were
established inter alia by presenting a more generally
formulated criterion, pursuant to which certain duties are
referable to duties incompatible with the duties of a municipal
council member; this criterion was expressed by the wording "of
a state official who, under the Constitution and laws, enjoys
powers to control or supervise the activities of
municipalities".
8. It has been mentioned that by Article 3 of the Law on
Amending Articles 35, 86 and 88-1 of the Law on Elections to
Municipal Councils Article 88-1 of the Law on Elections to
Municipal Councils (wording of 28 January 2003) was amended and
that the following is established in Paragraph 1 of Article
88-1 (wording of 28 January 2003) of the Law on Elections to
Municipal Councils: "The duties of a council member are
incompatible with the duties of the President of the Republic,
a member of the Seimas, a member of the Government, a county
chief or a deputy county chief, the representative of the
Government in a county, the duties of the State Controller or
his deputies. In addition, the duties of a council member are
incompatible with the duties of the municipal controller or an
official of the service of the municipal controller, with the
duties of the director of municipal administration or a state
servant of municipal administration, with the duties of heads
of municipal institutions funded form the budget, the duties of
a single person director or a member of collegial management
bodies of municipal establishments and enterprises, the duties
of a member of collegial management bodies (boards) of
joint-stock companies controlled by municipalities or the
director of a company (when the board is not formed)."
If one compares the legal regulation established in
Paragraph 1 of Article 88-1 of the Law on Elections to
Municipal Councils (wording of 25 March 2003) with that
established in Paragraph 1 of Article 88-1 (wording of 28
January 2003) of the Law on Elections to Municipal Councils it
is obvious that Paragraph 1 of Article 88-1 of the Law on
Elections to Municipal Councils (wording of 25 May 2003)
establishes different legal regulation than in Paragraph 1 of
Article 88-1 (wording of 28 January 2003) of the Law on
Elections to Municipal Councils, that the provision "the duties
of a council member are incompatible <...> with the duties of a
state official who, under the Constitution and laws, enjoys
powers to control or supervise the activities of
municipalities" inter alia is gone which, in the opinion of the
petitioner, presupposed the legislative omission.
9. In Paragraph 4 of Article 69 of the Law on the
Constitutional Court it is established that the annulment of
the disputed legal act shall be grounds to adopt a decision to
dismiss the instituted legal proceedings.
The Constitutional Court has stated in its rulings that
the wording of Paragraph 4 of Article 69 of the Law on the
Constitutional Court "is the grounds <...> to dismiss the
instituted legal proceedings" should be interpreted as
establishing the right of the Constitutional Court to dismiss
the instituted legal proceedings regarding the circumstances of
the case at issue when the Constitutional Court was addressed
not by courts but the other subjects indicated in Article 106
of the Constitution (Constitutional Court rulings of 21 August
2002, 4 March 2003, 2 September 2004, and 29 September 2004).
10. With regard to the arguments set forth, the part of
the case on the compliance of Paragraph 1 of Article 88-1
(wording of 28 January 2003) of the Law on Elections to
Municipal Councils with the constitutional principle of a state
under the rule of law is to be dismissed.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, 56 and
Item 3 of Paragraph 1 and Paragraphs 3 and 4 of Article 69 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:
1. To recognize that the Republic of Lithuania Law on the
Supplement and Amendment of Articles 86, 87 of the Law on
Elections to Municipal Councils and Its Supplement with Article
88-1 is in conflict, according to the procedure of its
adoption, with Paragraph 1 of Article 69 of the Constitution of
the Republic of Lithuania.
2. To dismiss the part of the case regarding the
compliance of Paragraph 2 of Article 4 of the Republic of
Lithuania Law on the Supplement and Amendment of Articles 86,
87 of the Law on Elections to Municipal Councils and Its
Supplement with Article 88-1 (wording of 28 January 2003) with
the Constitution of the Republic of Lithuania.
3. To dismiss the part of the case regarding the
compliance of Paragraph 1 of Article 88-1 (wording of 28
January 2003) of the Law on Elections to Municipal Councils
with the Constitution of the Republic of Lithuania.
This Ruling of the Constitutional Court 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