Lietuviškai
Case No. 24/05-04/06
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 3 (WORDING OF 22 DECEMBER
1998) OF ARTICLE 73 OF THE STATUTE OF THE SEIMAS OF THE
REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
4 April 2006
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of a group of Members of the Seimas of
the Republic of Lithuania, the petitioners, who were Česlovas
Juršėnas (representing both petitioners-the group of Members of
the Seimas of the Republic of Lithuania and the Seimas of the
Republic of Lithuania), Julius Sabatauskas (representing the
group of Members of the Seimas of the Republic of Lithuania, a
petitioner) and Algirdas Monkevičius (representing the Seimas
of the Republic of Lithuania), all of whom are Members of the
Seimas, as well as Antanas Jatkevičius (representing the Seimas
of the Republic of Lithuania, a petitioner), senior advisor of
the Legal Department of the Office of the Seimas,
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Gintaras Steponavičius,
a Member of the Seimas (representing the Seimas of the Republic
of Lithuania in the part of the case concerning the petition of
the group of Members of the Seimas of the Republic of
Lithuania, the petitioner),
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 30 March 2006 heard case No. No. 24/05-04/06
subsequent to the following petitions:
- the 23 November 2005 petition of a group of Members of
the Seimas of the Republic of Lithuania, the petitioner,
requesting to investigate whether the provision "If a group of
at least 1/4 of the Members of Seimas submits a written demand
to form a provisional control or investigation commission, the
Seimas must form such a commission in the course or its nearest
sitting" of Paragraph 3 (wording of 22 December 1998) of
Article 73 of the Statute of the Seimas of the Republic of
Lithuania is not in conflict with the principle of a free
mandate of a Member of the Seimas, which, according to the
petitioner, is entrenched in Paragraph 4 of Article 59 of the
Constitution of the Republic of Lithuania and the principle of
a state under the rule of law, which, according to the
petitioner, is entrenched in the Preamble of the Constitution
of the Republic of Lithuania;
- the petition set forth in the 20 December 2005
Resolution of the Seimas of the Republic of Lithuania "On the
Application to the Constitutional Court of the Republic of
Lithuania with a Request to Investigate whether Paragraph 3 of
Article 73 of the Statute of the Seimas of the Republic of
Lithuania is not in Conflict with the Constitution of the
Republic of Lithuania" requesting the Constitutional Court to
investigate whether the provision "If a group of at least 1/4
of the Members of Seimas submits a written demand to form a
provisional control or investigation commission, the Seimas
must form such a commission in the course or its nearest
sitting" of Paragraph 3 (wording of 22 December 1998) of
Article 73 of the Statute of the Seimas of the Republic of
Lithuania is not in conflict with the principle of a free
mandate of a Member of the Seimas, which, according to the
petitioner, is entrenched in Paragraph 4 of Article 59 of the
Constitution of the Republic of Lithuania.
By the Constitutional Court decision of 16 January 2006,
both of these petitions were joined into one case and it was
given reference No. 24/05-04/06.
The Constitutional Court
has established:
I
1. On 30 November 2005, a group of Members of the Seimas,
a petitioner, applied to the Constitutional Court with a
petition requesting to investigate as to whether Paragraph 3 of
Article 73 of the Statute of the Seimas is not in conflict with
the principle of a free mandate of a Member of the Seimas,
which, according to the petitioner, is entrenched in Paragraph
4 of Article 59 of the Constitution, and with the principle of
a state under the rule of law, which, according to the
petitioner, is entrenched in the Preamble of the Constitution.
This petition was received at the Constitutional Court on
6 December 2005.
2. On 20 December 2005, the Seimas, a petitioner, adopted
Resolution No. X-455 "On the Application to the Constitutional
Court of the Republic of Lithuania with a Request to
Investigate whether Paragraph 3 of Article 73 of the Statute of
the Seimas of the Republic of Lithuania is not in Conflict with
the Constitution of the Republic of Lithuania" (hereinafter
referred to as the Seimas resolution of 20 December 2005) which
set forth a request to investigate whether the provision "If a
group of at least 1/4 of the Members of Seimas submits a
written demand to form a provisional control or investigation
commission, the Seimas must form such a commission in the
course or its nearest sitting" of Paragraph 3 (wording of 22
December 1998) of Article 73 of the Statute of the Seimas is
not in conflict with the principle of a free mandate of a
Member of the Seimas, which, according to the petitioner, is
entrenched in Paragraph 4 of Article 59 of the Constitution.
This petition was received at the Constitutional Court on
9 January 2006. By its decision of 11 January 2006, the
Constitutional Court decided to accept this petition. From the
day of official publishing of the announcement of the President
of the Constitutional Court about the acceptance of the said
petition at the Constitutional Court in the official gazette
Valstybės žinios, i.e. as from 14 January 2006, until the
publishing of a ruling of the Constitutional Court in this
constitutional justice case, the validity of Paragraph 3
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas is suspended.
II
1. The petition of the group of Members of the Seimas, a
petitioner, is grounded upon the following arguments.
The free mandate of a Member of the Seimas, which is
entrenched in Paragraph 4 of Article 59 of the Constitution,
means that a Member of the Seimas, while following the
Constitution, the interests of the state and his own
conscience, may decide on how to vote. In a parliamentary
democracy, one cannot force a member of parliament in a way,
which is unacceptable to him. Decisions of the parliament are
based on the majority principle, which ensures constructive
activities of the representative power. It is necessary to
create possibilities for the parliamentary minority to
represent their electorate, to express their will, but this may
not deny the majority principle, either, on the grounds of
which decisions are adopted, nor the free mandate of a Member
of the Seimas, not the equality of Members of the Seimas.
Meanwhile, under Paragraph 3 of Article 73 of the Statute of
the Seimas, the Seimas has a duty to form a provisional control
or investigation commission, if a group of at least 1/4 of the
Members of Seimas submits a written demand to do so. This could
mean an exception to the general procedure of forming such
commissions: the commission must be formed obligatorily. Under
the established practice, such commissions are formed by
adopting Seimas resolutions. However, if an initiative of
parliamentary minority (a group of not less than 1/4 of Members
of the Seimas) becomes obligatory to the Seimas, small
political groups, if compared to big ones, find themselves in a
better situation when the functions of parliament are
implemented.
2. The petition of the Seimas, a petitioner, is based on
the following arguments.
Seimas provisional control or investigation commissions
are formed after the initiators submit a corresponding draft
resolution of the Seimas. Such resolution must be adopted in a
Seimas sitting by voting. The free mandate of a Member of the
Seimas, which is entrenched in Article 59 of the Constitution,
permits a Member of the Seimas to decide on the formation of
the said commission. Meanwhile, the said provision of Paragraph
3 of Article 73 of the Statute of the Seimas implies a duty of
the Seimas to adopt a resolution whereby such commission is
formed.
III
In the course of the preparation of the case for the
Constitutional Court ruling, explanations approved in the 15
March 2005 sitting of the Board of the Seimas concerning the
arguments set forth in the Seimas resolution of 20 December
2005.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the Seimas Member Andrius Kubilius, the
representative of the party concerned, the Seimas (who was
representing the Seimas in the part of the case concerning the
petition of the group of Members of the Seimas, a petitioner)
in which it is maintained that the disputed provision of
Paragraph 3 of Article 73 of the Statute of the Seimas is not
in conflict with Paragraph 4 of Article 59 of the Constitution,
nor with the constitutional principle of a state under the rule
of law. The position of A. Kubilius is grounded on these
arguments.
The free mandate of a Member of the Seimas means that the
Member of the Seimas may not be restricted by any commitments
to a party, supporters, even the electorate, that no one has
the right to oblige or empower the Member of the Seimas to vote
against his free decision, but it does not mean that the Member
of the Seimas in the course of voting may be free from his oath
by which he is obligated to execute the Constitution and laws.
Meanwhile, the Constitution, laws and the Statute of the Seimas
contain provisions, which definitively point out as to what
decision the Member of the Seimas must adopt; Members of the
Seimas are not free form the obligation to execute these
provisions and to vote freely. Besides, the compulsory forming
of a provisional control or investigation commission upon
initiative of minority does not deny the right of the majority
to adopt the final decision, since commissions are formed
according to the principle of proportional representation,
thus, in any Seimas commission the Seimas majority will have
the majority of votes, however, such compulsory forming is a
tool, enabling the parliamentary minority to efficiently
execute parliamentary control.
V
In the course of preparation of the case for the
Constitutional Court hearing, upon request of the
Constitutional Court information was received from Česlovas
Juršėnas, the representative of the petitioner, the Seimas (as
the one representing the Seimas in the part of the case
concerning the petition of the Seimas, a petitioner) about the
provisional commissions which had been formed in the Seimas
from 1990 till the beginning of consideration of the
constitutional justice case at issue.
In the course of the preparation of the case for the
Constitutional Court hearing, a paper from A. Kubilius, the
representative of a petitioner, the Seimas (as the one
representing the Seimas in the part of the case concerning the
petition of the group of Members of the Seimas, a petitioner)
in which inter alia the said information submitted by Č.
Juršėnas is assented.
2. In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from Prof. E. Šileikis who works at the Department of
Constitutional and Administrative Law of the Faculty of Law of
Vilnius University.
VI
1. At the Constitutional Court hearing, Č. Juršėnas, a
representative of the group of Members of the Seimas, a
petitioner, J. Sabatauskas, a representative of the group of
Members of the Seimas, a petitioner, and A. Jatkevičius, a
representative of the Seimas, a petitioner, virtually
reiterated the explanations set forth in corresponding
explanations and the explanations approved by the Board of the
Seimas.
2. At the Constitutional Court hearing, A. Monkevičius, a
representative of the Seimas, a petitioner, even though
appointed to represent the Seimas (in the part of the case
subsequent to the petition of the Seimas, a petitioner),
presented a view, which was contrary to that upon which the
Seimas resolution of 20 December 2005 is based and asserted
that the disputed provision of Paragraph 3 of Article 73 of the
Statue of the Seimas was not in conflict with the Constitution.
3. At the Constitutional Court hearing, G. Steponavičius,
the representative of the Seimas, a petitioner, (as the one
representing the Seimas in the part of the case concerning the
petition of the group of Members of the Seimas, a petitioner)
assented to the arguments set forth in the written explanations
of A. Kubilius, a representative of the Seimas, a petitioner,
and the arguments of A. Monkevičius, a representative of the
Seimas, a petitioner (as the one representing the Seimas in the
part of the case concerning the petition of the Seimas, a
petitioner), which were set forth at the Constitutional Court
hearing. G. Steponavičius also presented additional arguments,
grounding the opinion that the disputed provision of Paragraph
3 of Article 73 of the Statute of the Seimas is not in conflict
with the Constitution.
The Constitutional Court
holds that:
I
1. On 22 December 1998, the Seimas adopted the Statue of
the Seimas "On the Amendment of the Statute" by Article 1
whereof it set forth the Statute of the Seimas (wording of 17
February 1994 with subsequent amendments and supplements) in a
new wording. The Statute of the Seimas of the new wording came
into force on 1 February 1999.
Paragraph 3 (wording of 22 December 1998) of Article 73 of
the Statute of the Seimas provides: "If a group of at least 1/4
of the Members of Seimas submits a written demand to form a
provisional control or investigation commission, the Seimas
must form such a commission in the course or its nearest
sitting."
Paragraph 3 (wording of 22 December 1998) of Article 73 of
the Statute of the Seimas has not been amended nor
supplemented.
2. A group of Members of the Seimas, a petitioner,
requests to investigate as to whether the provision "If a group
of at least 1/4 of the Members of Seimas submits a written
demand to form a provisional control or investigation
commission, the Seimas must form such a commission in the
course or its nearest sitting" of Paragraph 3 of Article 73 of
the Statute of the Seimas is not in conflict with the principle
of a free mandate of a Member of the Seimas, which, according
to the petitioner, is entrenched in Paragraph 4 of Article 59
of the Constitution and the principle of a state under the rule
of law, which, according to the petitioner, is entrenched in
the Preamble of the Constitution.
The Seimas, a petitioner, requests to investigate whether
the provision "If a group of at least 1/4 of the Members of
Seimas submits a written demand to form a provisional control
or investigation commission, the Seimas must form such a
commission in the course or its nearest sitting" of Paragraph 3
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas is not in conflict with the principle of a free
mandate of a Member of the Seimas, which, according to the
petitioner, is entrenched in Paragraph 4 of Article 59 of the
Constitution.
3. It needs to be noted that it is impossible to construe
the constitutional principle of the free mandate of a Member of
the Seimas as the one which is entrenched only in Paragraph 4
of Article 59 of the Constitution; this constitutional
principle is reflected in various aspects also in other
articles (parts thereof) of the Constitution, inter alia
consolidating the constitutional legal status of the Member of
the Seimas.
It needs also to be noted that, as the Constitutional
Court has held in its acts more than once, it is impossible to
identify the constitutional principle of a state under the rule
of law only with the striving for an open, just, and harmonious
civil society and state under the rule of law which is
proclaimed in the Preamble of the Constitution; the principle
of a state under the rule of law integrates various values
consolidated in and protected and defended by the Constitution,
including those expressed by the said striving.
4. It is clear from the arguments of the petitioners that
they faced doubts not as regards the compliance of the entire
quoted provision, i.e. not entire Paragraph 3 (wording of 22
December 1998) of Article 73 of the Statute of the Seimas, but
only of the provision "If a group of at least 1/4 of the
Members of Seimas submits a written demand to form a
provisional <...> commission, the Seimas must form such a
commission in the course or its nearest sitting" of the same
paragraph with the Constitution.
5. In the constitutional justice case at issue, subsequent
to the petitions of the petitioners the Constitutional Court
will investigate whether the provision "If a group of at least
1/4 of the Members of Seimas submits a written demand to form a
provisional <...> commission, the Seimas must form such a
commission in the course or its nearest sitting" of Paragraph 3
(wording of 22 December 1998; Official Gazette Valstybės
žinios, 1999, No. 5-97) of Article 73 of the Statute of the
Seimas is not in conflict with Paragraph 4 of Article 59 of the
Constitution and the constitutional principle of a state under
the rule of law.
II
1. The Seimas is the representation of the Nation. The
constitutional nature of the Seimas, as the representation of
the Nation, determines its special place in the system of
institutions of state power, its functions and powers necessary
in order to discharge these functions (Constitutional Court
ruling of 13 May 2004).
2. While implementing its constitutional powers, the
Seimas discharges the classical functions of the parliament of
a democratic state under the rule of law: the Seimas passes
laws (the legislative function), conducts the parliamentary
control of executive and other state institutions (save courts)
(the control function), establishes state institutions,
appoints and dismisses their heads and other state officials
(the establishment function), confirms the State Budget and
supervises the execution thereof (the budgetary function) etc.
(Constitutional Court rulings of 13 May 2004 and 1 July 2004).
The Constitutional Court has held that the said functions
of the Seimas as the representation of the Nation of a state
under the rule of law are constitutional values, that under the
Constitution, the legislator and other entities of lawmaking
may not establish any such legal regulation whereby the said
constitutional functions of the Seimas would be denied or
opportunities to discharge them would be restricted, since thus
the Seimas, the representation of the Nation, would be hindered
from effective actions in the interests of the Nation and the
State of Lithuania (Constitutional Court ruling of 13 May
2004).
By means of legal acts one must establish such structure
of the Seimas and its work procedure, define such relations of
the Seimas with other state institutions, consolidate such
legal status of the Member of the Seimas, so that the Seimas,
the representation of the Nation, might be able to discharge
its constitutional functions, while Members of the Seimas might
execute, as representatives of the Nation, their constitutional
powers uninterrupted, and when in office, they would follow the
Constitution, the interests of the state, their own consciences
and would not be restricted by any mandates.
While passing laws and discharging other functions, the
Seimas, as well as each member of the Seimas, are bound by the
Constitution, constitutional laws and laws, as well as the
Statute of the Seimas which has the power of law.
3. Under the Constitution, the powers of the Seimas may be
established and are established not only in the Constitution
but also in laws; some cases where certain powers of the Seimas
entrenched in the Constitution may be particularised in laws
are directly specified in the Constitution; the Seimas, as the
representation of the Nation, has the right to establish, by
laws, also such its powers that are not expressis verbis
indicated in the Constitution which, however, are designed for
the implementation of the constitutional functions of the
Seimas; implementing its right directly established in the
Constitution to particularise its certain constitutional powers
by means of laws, as well as establishing, by means of laws,
its powers that are not expressis verbis indicated in the
Constitution, the Seimas is bound by the Constitution.
(Constitutional Court ruling of 13 May 2004).
4. In its ruling of 13 May 2004, the Constitutional Court
held: "In order that it might properly discharge its
parliamentary functions and implement its constitutional
powers, the Seimas, the representation of the Nation, has to
possess exhaustive, objective information about the processes
taking place in the state and society, about the situation in
various sectors of life of the state and society and the
arising problems. The possession of such information is a
necessary precondition for the fact that the Seimas might be
able to effectively act in the interests of the Nation and the
State of Lithuania, that it would properly execute its
constitutional duty."
In the same ruling of the Constitutional Court it is also
held: "The constitutional functions of the Seimas, the powers
of the Seimas entrenched in the Constitution presuppose the
powers of the Seimas in every case when a necessity occurs to
decide a certain question ascribed to the constitutional
competence of the Seimas, to seek to achieve exhaustive,
objective information necessary to adopt corresponding
decisions. The necessity to possess such information means that
in case of need the Seimas can rely not only on the publicly
known information or that presented to it by state institutions
and other persons, but also that it can resort to concrete
actions so that such exhaustive, objective information could be
received. In case of need, the Seimas may conduct investigation
by itself so that it could collect exhaustive, objective
information about the processes taking place in the state and
society, about the situation in various sectors of life of the
state and society and the arising problems. This activity of
the Seimas logically follows from its purpose as the parliament
, from its constitutional functions and constitutional powers."
5. Under the Constitution, the Seimas must establish such
legal regulation, so that legal preconditions might be created
to receive the necessary information needed in order to execute
its constitutional powers.
In its ruling of 13 May 2004, the Constitutional Court
held that the Seimas, enjoying the powers in every case,
whenever there occurs a necessity to decide a certain issue
within the constitutional competence of the Seimas, to seek to
receive exhaustive, objective information needed to adopt
corresponding decisions, also enjoys discretion to form such
its structural sub-units which would be assigned to conduct
investigation so that exhaustive, objective information about
the processes taking place in the state and society, about the
situation in various sectors of life of the state and society
and the arising problems could be collected. In the same ruling
the Constitutional Court held also that the Seimas, while
enjoying, under the Constitution, the discretion to establish
its structure, it also enjoys discretion to form is structural
sub-units, as well as discretion to establish the names of its
structural sub-units, their competence, composition, their
interrelations, term of activity, and to formulate them certain
tasks; while establishing this, the Seimas is bound by the
norms and principles of the Constitution.
Under Article 76 of the Constitution, the structure and
procedure of activities of the Seimas shall be established by
the Statute of the Seimas. In this context, one is to mention
that that it is impossible to construe the provision that the
structure and procedure of activities of the Seimas shall be
established by the Statute of the Seimas only linguistically,
i.e. as meaning that the powers of structural sub-units of the
Seimas may be established only in the Statute of the Seimas;
for instance, in order to discharge its constitutional
functions, the Seimas may need to form also such its structural
sub-units, which would have powers in regard of various state
or municipal institutions, their officials and other persons.
Such powers may be related to receiving of information from
state or municipal institutions, their officials and other
persons about certain processes taking place in the state and
society, about the situation in various spheres of life of the
state and society; the reception of such information may not
depend upon the fact whether corresponding institutions and
other persons are accountable to the Seimas or not; if one has
to establish authoritative empowerments of a structural
sub-unit of the Seimas in regard of institutions not
accountable to the Seimas, their officials and other persons
(including the right to demand such information, whose
submission is regulated by laws), then such powers of the
structural sub-unit of the Seimas must be established by the
law (Constitutional Court ruling of 13 May 2004).
It needs to be noted that in a democratic state under the
rule of law one cannot deny the powers of the parliament-the
representation of the Nation-to take measures, inter alia to
form structural sub-units of the parliament, which are meant
for this purpose, and to commission them with conducting a
corresponding investigation, so that information would be
received about the processes taking place in the state and
society, about the situation in various areas of life of the
state and society and arising problems; otherwise, proper
discharge of functions of the parliament-the representation of
the Nation-and adoption of necessary decisions would not be
ensured. The said powers arise from the very essence of the
parliamentary democracy and is one of the features of
parliamentarism. In the practice of parliaments of democratic
states under the rule of law an opportunity of the parliament
to take measures in order to receive information about
processes taking place in the state and society, about the
situation in various spheres of life of the state and society
and the arising problems is also implemented by means of such
institutes as provisional commissions (which are commissioned
with conduct of certain investigation) formed by parliaments,
parliamentary hearings and deliberations etc.
The institute of provisional commissions formed by the
Seimas, inter alia provisional investigation commissions, is
also characteristic of the parliamentarism tradition of the
State of Lithuania.
6. It needs to be noted that, under the Constitution, it
is not permitted to establish any exhaustive (final) list of
questions, for the investigation of which the Seimas may form
provisional investigation commissions: since the Seimas, as the
representation of the Nation and the institution of legislation
(performing, as mentioned, not only the legislative but also
various other functions), may pass laws and other legal acts
regulating most varied social relations, it can virtually form
provisional investigation commissions designated for the
investigation of most varied processes which take place in the
state and society.
6.1. The principle of responsible governance is entrenched
in the Constitution (Constitutional Court rulings of 1 July
2004, 13 December 2004, and 2 June 2005). The Constitution does
not imply any such activities of the Seimas, where the Seimas
collects all the information necessary for legislation and
other functions of the Seimas by itself, by not relying on the
information submitted to it by other state institutions, nor
when in the activities of the Seimas the formation of
provisional or like commissions and investigation performed by
them dominate. Quite to the contrary, the Constitution implies
the institute of Seimas provisional investigation commissions
and the legal regulation of formation of such commissions and
of their activities, where Seimas provisional investigation
commissions are formed not in order to investigate any, but
only special questions, i.e. those of state importance. The
powers of Seimas provisional investigation commissions are to
be related with the constitutional purpose and functions of the
Seimas.
6.2. The Constitution does not imply any possibility to
form any such Seimas provisional investigation commissions,
which would be commissioned with investigation of such things
that institutions of public power, under the Constitution, may
not investigate at all, as for example, circumstances of
personal or family life of a human being, if, by such
investigation one would unreasonably interfere with the private
life of the human being, which is defended by the Constitution,
if the inviolability of private life is violated, etc.
6.3. From the constitutional principle of separation of
powers and other provisions of the Constitution, one is to draw
a conclusion that the Seimas has no powers to form any such
provisional investigation commissions, which would be
commissioned with investigation of things, in the course of
investigation of which the powers of other institutions which
execute public power, as well as the powers of other state and
municipal institutions provided for in the Constitution and/or
laws would be interfered with. For example, a Seimas
provisional investigation commission cannot take over the
constitutional powers of courts or otherwise interfere with the
implementation of the constitutional competence of courts, nor
violate the independence of the judge and courts in the course
of administration of justice, let alone administer justice by
itself; the Seimas provisional investigation commission may not
take over the constitutional powers of prosecutors or otherwise
interfere with the implementation of the constitutional
competence of prosecutors, nor violate the independence of the
prosecutor when he organises pre-trial investigation and
pursues charges on behalf of the state in criminal cases
(Constitutional Court ruling of 13 May 2004).
However, the fact that Seimas provisional investigation
commissions cannot be commissioned with investigation of things
in the course of investigation of which the powers of other
institutions which execute public power, as well as the powers
of other state and municipal institutions provided for in the
Constitution and/or laws would be interfered with, does not
mean that Seimas provisional investigation commissions cannot
have any powers in regard of state or municipal institutions,
their officials and other persons at all. Such powers may be
established by means of a law, when the Constitution is being
paid heed to as well.
7. It needs to be noted that the nature of Seimas
provisional investigation commissions as structural sub-units
of the Seimas implies that an initiative of forming such a
commission may arise only in the Seimas, i.e. only Members of
the Seimas may express it. Thus, under the Constitution, one
may not establish any such legal regulation whereby formation
of a Seimas provisional investigation commission is initiated
not by Members of the Seimas, but other subjects.
The Seimas, when regulating formation of Seimas
provisional investigation commissions by means of legal acts,
may establish as to by what ways and organisational forms
Members of the Seimas can express an initiative to form a
Seimas provisional investigation commission, inter alia the
Seimas may establish that such initiative can be expressed by
certain Seimas structural sub-units (e.g. political groups,
committees) and/or a group of a certain number of Members of
the Seimas. In the context of the constitutional justice case
at issue, it needs to be noted that, while taking account of
the fact that Seimas provisional investigation commissions can
be formed for investigation of not any, but only special
questions, i.e. those of state importance, the said group of
Members of the Seimas should be sufficiently big; on the other
hand, if one established a too big number of Members of the
Seimas constituting such a group, the opportunities of Members
of the Seimas to initiate formation of Seimas provisional
investigation commissions so that the Seimas could receive
information about processes taking place in the state and
society, about the situation in various spheres of life of the
state and society and the arising problems, which is necessary
so that the Seimas-the representation of the Nation-would
effectively act in the interests of the Nation and the State of
Lithuania, would be groundlessly restricted.
Taking account of the fact that the Constitution implies
protection of the parliamentary minority and the minimum
requirements of the protection of the Seimas opposition
(Constitutional Court rulings of 26 November 1993 and 25
January 2001), as well as the fact that recognition of the
parliamentary opposition is a necessary element of pluralist
democracy (Constitutional Court ruling of 25 January 2001),
also such legal regulation may be established that the Seimas
opposition might initiate the formation of provisional
investigation commissions.
8. In itself, the statement about the initiative to form a
Seimas provisional investigation commission, whoever expressed
it, does not imply formation of such a commission. It needs to
be emphasised that a Seimas provisional investigation
commission is an entity formed by the entire Seimas, but not by
its part, not by a structural sub-unit of the Seimas or by a
group of Members of the Seimas; the powers of a Seimas
provisional investigation commission may stem only from an act
of the Seimas as the representation of the Nation-the
expression of the will of the Seimas-but not from expression of
the will or intention of a certain sub-unit of the Seimas or of
a group of Members of the Seimas. Due to this, it is only the
Seimas that can decide on whether to form a Seimas provisional
investigation commission on certain issue, or not to form it,
it is only the Seimas that can establish its composition,
tasks, etc.-no one else can express such its will for the
Seimas, thus, not any structural sub-unit of the Seimas, nor
any group of Members of the Seimas.
One of democratic principles of adoption of decisions is
the majority principle (Constitutional Court ruling of 22 July
1994). The political will of the majority of Members of the
Seimas is reflected in Seimas resolutions (Constitutional Court
conclusion of 31 March 2004). It needs to be underlined that,
under the Constitution, the will of the Seimas regarding
formation of a Court cannot be expressed otherwise than by
voting at a Seimas sitting and adopting a corresponding
substatutory legal act. The Constitutional Court has held that
the substatutory acts of the Seimas whereby questions related
with the formation of structural sub-units of the Seimas (thus,
including Seimas provisional investigation commissions), their
competence and composition may not be in conflict with laws as
well as with the Statute of the Seimas; that if a substatutory
act of the Seimas sets the powers of a structural sub-unit of
the Seimas (thus, including the Seimas provisional
investigation commission) in regard of state or municipal
institutions, their officials, and other persons, then such
provisions of the substatutory act of the Seimas must be
grounded on provisions of laws (Constitutional Court ruling of
13 May 2004).
9. In each particular case, before deciding on the
formation of a Seimas provisional investigation commission, the
Seimas must deliberate and assess whether or not this Seimas
provisional investigation commission can be formed according to
the Constitution and laws. The Seimas must deliberate and
assess inter alia the following: whether the issue due to which
the formation of the Seimas provisional investigation
commission is proposed is really of state importance; whether
one suggests that this Seimas provisional investigation
commission be commissioned to investigate things, which, under
the Constitution, institutions of public power may not
investigate at all; whether one suggests that this Seimas
provisional investigation commission be commissioned to
investigate things, in the course of investigation of which the
powers of other institutions which execute public power, as
well as the powers of other state and municipal institutions
provided for in the Constitution and/or laws, would be
interfered with.
Before deciding on the formation of the Seimas provisional
investigation commission, the Seimas may assess (inter alia
also from the aspect of expediency) also whether there are any
circumstances, which would justify non-forming of such
commission, as, for example: whether a corresponding question
has been investigated already or whether it is under
investigation by a Seimas provisional investigation commission
or another institution, whether the corresponding work may be
performed by an already established and acting structural
sub-unit of the Seimas, etc.
10. It needs to be emphasised that the Seimas, when
forming a Seimas provisional investigation commission, must pay
heed to the imperative of protection of the Seimas minority,
and the minimum requirements of the protection of the Seimas
opposition, which arise from the Constitution, and which inter
alia imply that a Seimas provisional investigation commission
may not be formed only from representatives of the political
majority of the Seimas, without including representatives from
the minority (opposition), if they so request. One is also to
underline that in the course of forming a Seimas provisional
investigation commission one must respect the will and interest
of the initiators of forming the commission in order to
investigate precisely the question formulated by them and one
must ensure that the initiators are properly represented in the
Seimas provisional investigation commission.
11. It needs to be emphasised that conclusions of the
Seimas provisional investigation commission are not binding on
the Seimas. The Seimas, having formed a provisional
investigation commission and having set certain tasks to it,
also has the power, under the Constitution, according to the
procedure established in legal acts to assess the activities of
such its Seimas provisional investigation commission and their
results. The fact as to by what form the activities of the
Seimas provisional investigation commission and their results
must be assessed is decided by the Seimas at its discretion.
For instance, the Seimas may decide whether or not to approve
of the activities of the Seimas provisional investigation
commission, or whether to approve of them only in part (with
reservations), the Seimas may state whether the Seimas
provisional investigation commission formed by it has performed
the tasks set to it, or whether it failed to perform them, or
whether it performed them only in part, etc. (Constitutional
Court ruling of 13 May 2004).
The Seimas, after it has decided to approve of the
conclusion of the Seimas provisional investigation commission,
does not adopt a decision on the compliance of the investigated
actions, decisions, and circumstances with legal acts which is
mandatory to other state institutions (including institutions
of pre-trial investigation, the prosecutor's office, courts),
but it merely formulates its point of view as to the conclusion
of the Seimas provisional investigation commission that was
formed by it. The conclusion (its individual statements) of the
Seimas provisional investigation commission in itself directly
does not give rise to any legal effects to the persons
indicated in it. Such effects could be raised to them only by
decisions of other institutions and their officers, which may
be adopted, while taking into consideration of the conclusion
of the Seimas provisional investigation commission
(Constitutional Court ruling of 13 May 2004).
12. It needs to be noted that in the course of forming
Seimas provisional investigation commissions one must pay heed
to the principle of the free mandate of a Member of the Seimas,
which is entrenched in the Constitution, inter alia in
Paragraph 4 of Article 59 thereof, which is one of the
guarantees of independence of activities of members of the
Seimas and of their equal rights. From the principle of the
free mandate of a Member of the Seimas stems the right of a
Member of the Seimas to vote at his own discretion in the
course of adoption of any decision of the Seimas, i.e. on each
issue to vote according to his conscience.
The principle of the free mandate of a Member of the
Seimas that a Member of the Seimas, when he, together with
other Members of the Seimas, initiates formation of a Seimas
provisional investigation commission, as well as participates
in the adoption of a Seimas resolution on the formation of the
Seimas provisional investigation commission, and participates
in the activities of the Seimas provisional investigation
commission, and participates in the adoption of the Seimas
resolution on the activities of the Seimas provisional
investigation commission and assessment of the results of its
activities, must follow only the Constitution, the interests of
the state as well as his own conscience (Paragraph 4 of Article
59 of the Constitution)-such his freedom may not be restricted
by the mandate of the electorate, nor by any political or other
requirements of the political parties or organisations which
have nominated him, nor by the will of other Members of the
Seimas. It needs to be mentioned that the Member of the Seimas
may not be persecuted for his voting or his speeches at the
Seimas (save personal insult and slander) (Paragraph 3 of
Article 62 of the Constitution).
13. In the context of the constitutional justice case at
issue, one is especially to underline that the free mandate of
a member of the Seimas is not a privilege of the representative
of the Nation, it is rather one of the legal measures ensuring
that the Nation will be properly represented in its
democratically elected representation, the Seimas, and that the
representation of the Nation, the Seimas, will act only in the
interests of the Nation and the State of Lithuania
(Constitutional Court ruling of 1 July 2004).
The free mandate of a member of the Seimas may not be used
in the interests other than those of the Nation and the State
of Lithuania (Constitutional Court ruling of 1 July 2004). In
its rulings of 25 May 2004 and 1 July 2004, the Constitutional
Court held that the Constitution implies the notion of
discretion and conscience of a member of the Seimas, according
to which no gap should exist between the discretion of the
member of the Seimas and the conscience of the member of the
Seimas, and the requirements of the Constitution, as well as
values entrenched in and protected by the Constitution:
according to the Constitution the discretion of a member of the
Seimas and his conscience should be oriented towards the
Constitution, and the interests of the Nation and the State of
Lithuania.
In the context of the constitutional justice case at
issue, one is to note that in cases when the question for the
investigation of which the formation of a Seimas provisional
investigation commission is proposed is really of state
importance and there are not any circumstances due to which the
commission may not be formed under the Constitution and laws,
and if there are not any circumstances which would justify
non-forming of such a commission, the free mandate of Members
of the Seimas must be used in such a way, so that the Seimas
could effectively act in the interests of the Nation and the
State of Lithuania, that it would properly perform its
constitutional obligation.
14. As mentioned, the principle of responsible governance
is entrenched in the Constitution. The Seimas should not use
its constitutional powers to form provisional investigation
commissions in a way, whereby it would itself collect all the
information necessary for legislation and performance of its
other functions and whereby in its activities the formation of
provisional investigation or similar commissions and the
investigation conducted by them would dominate; as mentioned in
this Constitutional Court ruling, the Constitution does not
imply any such activity of the Seimas. Otherwise, preconditions
might be created where certain circumstances would hinder the
work of the parliament, would hinder the Seimas, the
representation of the Nation, to act rationally and effectively
in the interests of the Nation and the State of Lithuania.
15. It needs to be noted that each Seimas decision on
forming of a Seimas provisional investigation commission
(decision on forming such a commission, decision on non-forming
such a commission, etc.), whatever the expression (legal form)
of such decision, may, under the Constitution, be disputed at
the Constitutional Court in regard of the compliance of this
decision (Seimas act) with legal acts of higher power, inter
alia (and, first of all) the Constitution. Under the
Constitution, the subjects specified in Paragraph 1 of Article
106 of the Constitution, inter alia not less than 1/5 of all
the Members of the Seimas, i.e. a group of not less than 29
Members of the Seimas, may do so.
III
On the provision "If a group of at least 1/4 of the
Members of Seimas submits a written demand to form a
provisional <...> commission, the Seimas must form such a
commission in the course or its nearest sitting" of Paragraph 3
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas with Paragraph 4 of Article 59 of the Constitution
and the constitutional principle of a state under the rule of
law.
1. The institute of Seimas provisional investigation
commissions is consolidated in the Statute of the Seimas
(wording of 22 December 1998 with subsequent amendments and
supplements).
2. Under Paragraph 1 (wording of 22 December 1998) of
Article 73 of the Statute of the Seimas, provisional control or
investigation commissions shall be formed for the purpose of
control of how the decisions of Seimas are being implemented,
collection and presentation of collected information and
conclusions, required to analyse the problem at hand, as well
as in other instances stipulated in this Statute. Paragraph 1
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas provides that the Seimas, having recognised a
necessity, may form inter alia provisional investigation
commissions for the purpose of investigation or preparation of
a certain question, or for the purpose of performance of other
assignments of the Seimas.
Under Paragraph 1 of Article 2 of the Law on Seimas
Provisional Investigation Commissions, the Seimas, having
recognised a necessity to investigate an issue of state
importance, may form a Seimas provisional investigation
commission. While construing this provision, the Constitutional
Court has held that in every particular case the Seimas, before
it decides on the formation of a Seimas provisional
investigation commission, must consider and assess whether the
issue is really that of state importance (Constitutional Court
ruling of 13 May 2004).
It also noteworthy that, under the Statute of the Seimas,
the Seimas can also assign committees with performing
parliamentary investigation, which, in such a case, act in
compliance with the rules of procedure of the Seimas control
commission or provisional investigation commissions, set forth
in Articles 75-76 of this Statute, and enjoy the same powers
(Paragraph 4 (wording of 22 December 1998) of Article 56 of the
Statute of the Seimas).
3. Under Paragraph 3 (wording of 22 December 1998) of
Article 73 of the Statute of the Seimas, the powers of Seimas
provisional investigation commissions are established by the
law. It needs to be emphasised that the Law on Seimas
Provisional Investigation Commissions establishes broad powers
of such commissions. These commissions inter alia have the
right: to receive documents, data or information form all
institutions of state power and governance, the Bank of
Lithuania, state and municipal enterprises (as well as form
those controlled by them), establishments and organisations
(Item 1 of Paragraph 1 of Article 4 (wording of 3 April 2003));
to receive verbal and written explanations or notes from heads
and other employees of all state and governance institutions,
state and municipal enterprises (including those controlled by
them), establishments and organisations, concerning the issues
considered by the commission (Item 2 of Paragraph 1 of Article
4 (wording of 3 April 2003)); to summon to the sittings of the
commission state and municipal politicians, officials, servants
as well as other persons working at state and municipal
institutions, to hear their explanations, to demand that they
present information or data concerning the issue considered by
the commission and to receive them either in writing or orally
(Item 3 of Paragraph 1 of Article 4 (wording of 3 April 2003)).
The Law on Seimas Provisional Investigation Commissions
(wording of 23 March 1999 with subsequent amendments)
establishes also other powers of Seimas provisional
investigation commissions.
4. The Board of the Seimas, Seimas committees,
parliamentary groups and a group of at least 1/4 of the Members
of Seimas shall have the right of initiative to form
provisional control or investigation commissions (Paragraph 1
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas). The initiators must submit to the Seimas a draft
proposal of the decision on forming a provisional control or
investigation commission, which shall indicate the aim in
forming such a commission, its tasks and powers (Paragraph 2
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas).
5. Under Paragraph 5 (wording of 22 December 1998) of
Article 71 of the Statute of the Seimas, the Seimas votes for
the entire list of members of a Seimas provisional
investigation commission. The chairman of a Seimas provisional
investigation commission is also appointed by the Seimas
(Paragraph 1 (wording of 22 December 1998) of Article 74 of the
Statute of the Seimas).
Under Paragraph 1 (wording of 22 December 1998) of Article
113 of the Statute of the Seimas, laws, Seimas resolutions and
other Seimas decisions are adopted by a simple (i.e., more than
one half) majority of the Members of the Seimas present at the
sitting, with the exception of special instances stipulated by
the Constitution and this Statute. Thus, under the Statute of
the Seimas (wording of 22 December 1998 with subsequent
amendments and supplements), also a Seimas decision on forming
of a Seimas provisional investigation commission is adopted by
a simple majority of votes of the Members of the Seimas
participating at the sitting.
6. The Statute of the Seimas entrenches a general
provision that Seimas provisional investigation commissions are
formed according to the principle of proportionate
representation of Seimas political groups (Paragraph 3 (wording
of 22 December 1998) of Article 71 of the Statute of the
Seimas). In certain instances Seimas may establish another
procedure of commission formation, however these may not
consist of representatives of one parliamentary group or one
committee (Paragraph 7 (wording of 22 December 1998) of Article
71 of the Statute of the Seimas). The provision that
representatives of only one Seimas political group may never be
members of a Seimas provisional investigation commission is
also consolidated in Paragraph 2 of Article 2 of the Law on
Seimas Provisional Investigation Commissions.
7. As mentioned, under Paragraph 3 (wording of 22 December
1998) of Article 73 of the Statute of the Seimas, if a group of
at least 1/4 of the Members of Seimas submits a written demand
to form a provisional control or investigation commission, the
Seimas must form such a commission in the course or its nearest
sitting. It is the compliance of this provision of the
Constitution that the petitioners had doubts about.
8. It is clear form the legal regulation established in
the Statute of the Seimas (wording of 22 December 1998 with
subsequent amendments and supplements) and the Law on Seimas
Provisional Investigation Commissions (wording of 23 March 1999
with subsequent amendments) that Seimas provisional
investigation commissions, no matter who initiates their
composition, must be formed upon a resolution of the Seimas.
This may also be said about the cases when the formation of a
Seimas provisional investigation commission is initiated by not
less than 1/4 group of Members of the Seimas.
9. When construing the provision "If a group of at least
1/4 of the Members of Seimas submits a written demand to form a
provisional <...> commission, the Seimas must form such a
commission in the course or its nearest sitting" of Paragraph 3
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas only literally, by applying only the linguistic
method, perhaps, it might be possible to assert that,
purportedly, if a group of at least 1/4 of the Members of
Seimas submits a written demand to form a Seimas provisional
investigation commission, the Seimas must form such a
commission in all cases and that a corresponding decision
should be adopted in the course or its nearest sitting.
However, when deciding whether the said provision is not
in conflict with the Constitution, it needs to be noted that it
is impossible to construe it by means of application of only
the linguistic method.
When the provision "If a group of at least 1/4 of the
Members of Seimas submits a written demand to form a
provisional <...> commission, the Seimas must form such a
commission in the course or its nearest sitting" of Paragraph 3
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas is construed by applying other methods (inter alia
the systemic one) of construction of law, one is to pay
attention to: Paragraph 1 (wording of 22 December 1998) of
Article 71 of the Statute of the Seimas, whereby, having
acknowledged the necessity, the Seimas may form inter alia
provisional commissions to examine and prepare or fulfil
another assignment of the Seimas; Paragraph 2 (wording of 22
December 1998) of Article 73 of the Statute of the Seimas,
whereby, the initiators of forming a Seimas provisional
investigation commission must submit to the Seimas a draft
proposal of the decision on forming the said commission, which
shall indicate the aim in forming such a commission, its tasks
and powers; Paragraph 1 (wording of 22 December 1998) of
Article 113 of the Statute of the Seimas, whereby inter alia
Seimas resolutions and other Seimas decisions are adopted by a
simple (i.e., more than one half) majority of the Seimas
Members present at the sitting, with the exception of special
instances stipulated by the Constitution and this Statute; and
Paragraph 1 of Article 2 of the Law on Seimas Provisional
Investigation Commissions, under which the Seimas, having
acknowledged the necessity of investigation of an issue of
state importance, may form a Seimas provisional investigation
commission.
10. Thus, under the Statute of the Seimas (wording of 22
December 1998 with subsequent amendments and supplements) and
the Law on Seimas Provisional Investigation Commissions
(wording of 23 March 1999 with subsequent amendments), in all
cases when there is an initiative to form a Seimas provisional
investigation commission, inter alia in cases when a group of
not less than of 1/4 Members of the Seimas demand this in
writing, the Seimas enjoys powers not only to form such a
commission, but also to decide not to form it.
10.1. The literal construction alone that, purportedly, if
a group of at least 1/4 of the Members of Seimas submits a
written demand to form a provisional commission, the Seimas has
no other choice but to form such a commission, would mean that
the free mandate of a Member of the Seimas is disregarded,
which implies inter alia the right of a Member of the Seimas to
vote at his discretion when any decision of the Seimas is
adopted, thus also a decision regarding formation of any Seimas
provisional investigation commission; such construction would
also mean that a group of 1/4 or a bigger group of Members of
the Seimas can impose their will upon the entire Seimas-the
representation of the Nation-even though the bigger part of
Members of the Seimas do not support the said initiative.
The literal construction alone that, purportedly, if a
group of at least 1/4 of the Members of Seimas submits a
written demand to form a provisional commission, the Seimas
must form such a commission, would also mean that the said
commission must also be formed even in cases when a question is
proposed to be investigated, which, under the Constitution, may
not be investigated in the Seimas.
10.2. In the context of the constitutional justice case at
issue, it also needs to be noted that every time when the
Seimas decides not to form a Seimas provisional investigation
commission, although not less than a group of 1/4 of the
Members of the Seimas demand this in writing, no matter what
the expression (legal form) of such decision, one must pay heed
to the fact that, as held in this Constitutional Court ruling,
in cases when the question for the investigation of which the
formation of a Seimas provisional investigation commission is
proposed is really of state importance and there are not any
circumstances due to which the commission may not be formed
under the Constitution and laws, and if there are not any
circumstances which would justify non-forming of such a
commission, the free mandate of Members of the Seimas must be
used in such a way, so that the Seimas could effectively act in
the interests of the Nation and the State of Lithuania, that it
would properly perform its constitutional obligation.
Besides, as mentioned, each Seimas decision on forming of
a Seimas provisional investigation commission (decision on
forming such a commission, decision on non-forming such a
commission, etc.), whatever the expression (legal form) of such
decision, may, under the Constitution, be disputed at the
Constitutional Court in regard of the compliance of this
decision (Seimas act) with legal acts of higher power, inter
alia (and, first of all) the Constitution; under the
Constitution, the subjects specified in Paragraph 1 of Article
106 of the Constitution, inter alia not less than 1/5 of all
the Members of the Seimas, i.e. a group of not less than 29
Members of the Seimas, may do so.
11. Only if the provision "If a group of at least 1/4 of
the Members of Seimas submits a written demand to form a
provisional <...> commission, the Seimas must form such a
commission in the course or its nearest sitting" of Paragraph 3
(wording of 22 December 1998) of Article 73 of the Statute of
the Seimas is understood in this way, then it neither violates
the free mandate of a Member of the Seimas, nor the powers of
the Seimas, as the representation of the Seimas, to decide by
itself whether to form the Seimas provisional investigation
commission or whether not to form it, nor does it deny an
opportunity for the Seimas to form such commission, so that
information about the processes taking place in the state and
society, about the situation in various sectors of life of the
state and society and the arising problems, which is necessary
so that the Seimas-the representation of the Nation-would
effectively act in the interests of the Nation and the State of
Lithuania.
12. Taking account of the arguments set forth, there are
no grounds to draw a conclusion that the provision "If a group
of at least 1/4 of the Members of Seimas submits a written
demand to form a provisional <...> commission, the Seimas must
form such a commission in the course or its nearest sitting" of
Paragraph 3 (wording of 22 December 1998) of Article 73 of the
Statute of the Seimas is in conflict with Paragraph 4 of
Article 59 of the Constitution and the constitutional principle
of a state under the rule of law.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania, and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
To recognize that the provision "If a group of at least
1/4 of the Members of Seimas submits a written demand to form a
provisional <...> commission, the Seimas must form such a
commission in the course or its nearest sitting" of Paragraph 3
(wording of 22 December 1998; Official Gazette Valstybės
žinios, 1999, No. 5-97) of Article 73 of the Statute of the
Seimas of the Republic of Lithuania is not in conflict with
Paragraph 4 of Article 59 of the Constitution of the Republic
of Lithuania and the constitutional principle of a state under
the rule of law.
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
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis