Case No. 26/08
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 15 APRIL
2008) OF THE REPUBLIC OF LITHUANIA LAW ON ELECTIONS TO
THE SEIMAS WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA
1 October 2008
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Egidijus Šileikis, Algirdas
Taminskas and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representative of the Seimas of the
Republic of Lithuania, the party concerned, who was Pranas
Žukauskas, senior advisor of the Law Department of the Office of
the Seimas,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 29 September 2008 heard constitutional justice case
No. 26/08 subsequent to the petition of the Supreme
Administrative Court of Lithuania, the petitioner, requesting to
investigate whether Paragraph 1 (wording of 15 April 2008) of
Article 37 of the Republic of Lithuania Law on Elections to the
Seimas (wording of 18 July 2000), to the extent that it provides
that candidates for the Members of the Seimas may be nominated in
the multi-member constituency only by a party, which is
registered pursuant to the Law on Political Parties and which
meets the requirements regarding the number of party members,
laid down in the Law on Political Parties, is not in conflict
with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and
Paragraph 1 of Article 55 of the Constitution of the Republic of
Lithuania.
The Constitutional Court
has established:
I
The Supreme Administrative Court of Lithuania, the
petitioner, was investigating an administrative case. By its
ruling, the said court suspended the consideration of the case
and applied to the Constitutional Court with a petition
requesting to investigate whether Paragraph 1 (wording of 15
April 2008) of Article 37 of the Law on Elections to the Seimas
(wording of 18 July 2000), to the extent that it provides that
candidates for the Members of the Seimas may be nominated in the
multi-member constituency only by a party, which is registered
pursuant to the Law on Political Parties and which meets the
requirements regarding the number of party members, laid down in
the Law on Political Parties, is not in conflict with Paragraph 1
of Article 34, Paragraph 2 of Article 35 and Paragraph 1 of
Article 55 of the Constitution.
II
The petition of the Supreme Administrative Court of
Lithuania, the petitioner is grounded on the following arguments.
1. On the basis of the official constitutional doctrine
formulated in the jurisprudence of the Constitutional Court, the
petitioner maintains that the legislator, by establishing, by
means of a law, the procedure for elections of the Members of the
Seimas, inter alia the procedure for nominating candidates for
the Members of the Seimas, must not deny, distort or restrict the
universal, equal and direct suffrage, which is enshrined in
Paragraph 1 of Article 55 of the Constitution, and create any
legal preconditions for other legal entities to do so. According
to the petitioner, one of the electoral rights of a citizenthe
right to offer candidates for the Members of the Seimasmust also
meet the principles of universal, equal and direct elections.
The disputed legal regulation which establishes that in the
multi-member constituency, only political parties have the right
to nominate candidates for the Members of the Seimas, in the
opinion of the petitioner, violates these principles of the
electoral right because the citizens which are not members of a
political party may nominate candidates for the Members of the
Seimas only in single-member constituencies, i.e. for 71 places
of Members of the Seimas. Such legal regulation, in the opinion
of the petitioner, most likely is not in compliance with the
principles of the universal, equal and direct suffrage and could
be in conflict with Paragraph 1 of Article 34 and Paragraph 1 of
Article 55 of the Constitution.
2. In its ruling of 9 February 2007, the Constitutional
Court has also held that Paragraph 2 of Article 35 of the
Constitution enshrines "the constitutional guarantee that
protects a person from belonging to any political party against
his will means also that the person may not be directly or
indirectly compelled to become related to any political party by
any relations that are other than formal membership". According
to the petitioner, the disputed legal regulation when only
political parties may nominate candidates for Members of the
Seimas in the multi-member constituency from a certain viewpoint
compels the citizens to formally or informally link themselves to
parties, since only through political parties they could realise
their electoral rightnominate candidates for the Members of the
Seimas in the multi-member constituencyand violates Paragraph 2
of Article 35 of the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representative of the Seimas, the party concerned, who
was P. Žukauskas, senior advisor of the Law Department of the
Office of the Seimas, in which it is maintained that the disputed
provision of Paragraph 1 of Article 37 of the Law on Elections to
the Seimas is not in conflict with Paragraph 1 of Article 34,
Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the
Constitution. The position of the representative of the Seimas,
the party concerned, is based on the following arguments.
1. On the grounds of an analysis of the provisions of the
Constitution, the legislator has the competence to regulate, by
means of a law, the procedure of the election to the Seimas: the
system of elections of Members of the Seimas, the basis for
organising elections, nomination of candidates and other
questions of the Seimas elections. The Constitution does not
establish the requirements for the legislator to choose one or
another system of elections. It needs to be noted that the
legislator chose a mixed system of elections to the Seimas, when
71 Member of the Seimas is elected according to the majoritarian
system of elections in single-member constituencies and the
citizens who meet the requirements of the Constitution and laws
may nominate themselves for these places of Members of the
Seimas, and thus, it does not prevent the citizens who are not
linked to parties to enjoy their passive electoral right and does
not restrict their possibilities to do so. In addition, the Law
on Elections to the Seimas does not establish that the parties
may nominate only those who are their members as candidates.
2. The effective legal regulation which regulates the
procedure of elections to the Seimas, creates the possibility for
persons to enjoy their passive electoral right without belonging
to political parties, i.e. to nominate themselves as candidates.
A citizen, when he implements his passive electoral right during
the elections to the Seimas, is not forced to link himself with
any political party, therefore, there is no ground to state that
the disputed provision of the Law on Elections to the Seimas is
in conflict with Paragraph 2 of Article 35 of the Constitution.
IV
At the Constitutional Court hearing, P. Žukauskas, the
representative of the Seimas, the party concerned, virtually
reiterated the arguments set forth in his written explanations.
The Constitutional Court
holds that:
I
1. On 9 July 1992, the Seimas adopted the Law on Elections
to the Seimas.
Article 30 titled "Nomination of Candidates for the Members
of the Seimas in a Single-Member and Multi-Member Constituencies"
of this law (wording of 9 July 1992) established:
"Political parties which have been registered for the
election according to the Law on Political Parties no later than
35 days prior to the election, as well as political organisations
whose effective statutes providing reference to their political
character and the amendments thereto have been registered with
the Ministry of Justice no later than 2 months prior to the
election, shall have the right to nominate candidates for the
Members of the Seimas in single-member and multi-member
constituencies, provided their participation in the election is
supported by no less than 1000 voters' signatures.
Individual persons may nominate themselves for the Members
of the Seimas in single-member constituencies, provided their
candidature is supported in writing by no less than 1000 voters
of that electoral area.
Political parties and political organisations or their
coalitions shall nominate their candidates in multi-member
constituencies by presenting lists of candidates. The list must
not include less than 20 candidates."
2. The Law on Elections to the Seimas (wording of 9 July
1992) has been amended and/or supplemented more than once.
On 16 March 1993, the Seimas adopted the Republic of
Lithuania Law on Partial Amendment and Supplementing of the
Republic of Lithuania Law on Elections to the Seimas, in Article
2 whereof it decided to change the words "public political
movement" into the words "political organisation".
Thus, the right to nominate candidates to the Members of the
Seimas was granted to political organisations while public
political movements lost this right. These amendments of the Law
on Elections to the Seimas (wording of 9 July 1992) were
determined by the aim of the legislator to harmonise the notions
used in it with those used in the Constitution, inter alia the
notions "political parties" and "political organisations" used in
Paragraph 3 of Article 35 thereof.
3. On 27 June 1996, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Elections to the Seimas,
Article 1 whereof set forth the Law on Elections to the Seimas
(wording of 9 July 1992 with subsequent amendments and
supplements) in a new wording. The Law on Elections to the Seimas
(wording of 27 June 1996) came into force on 2 July 1996 (save
the exception specified in it).
Article 37 titled "Nomination of Candidates for the Members
of the Seimas" of the Law on Elections to the Seimas (wording of
27 June 1996) established the following:
"The following may nominate candidates for Members of the
Seimas:
(1) in single-member constituencies and the multi-member
constituencythe party or political organisation which have been
registered pursuant to the Law on Political Parties and Political
Organisations no later than 65 days prior to the election;
(2) in a single-member constituencyevery citizen of the
Republic of Lithuania who qualifies to be elected as a Member of
the Seimas, may nominate himself for a Member of the Seimas,
provided his candidature is supported by signatures of no less
than 1,000 voters of that electoral area.
In multi-member constituencies parties and political
organisations shall nominate their candidates by presenting a
list of candidates in which candidates are recorded in such
succession as established by the party or political
organisations. Unless the statutes of a party or political
organisation provide otherwise, candidates in single-member
constituencies and the list of the candidates, recorded in
succession, in the multi-member constituency must be approved at
the congress or conference of the party or political
organisation. The list of candidates must not include less than
20 and more than 120 candidates."
Thus, Paragraph 1 of Article 37 of the Law on Elections to
the Seimas (wording of 27 June 1996) establishes the condition
for the parties or political organisations seeking to participate
in the elections to the Seimas to be registered pursuant to the
Law on Political Parties and Political Organisations no later
than 65 days prior to the election.
4. The Law on Elections to the Seimas (wording of 27 June
1996) has been amended and/or supplemented more than once,
however, Article 37 was not amended or supplemented.
5. On 18 July 2000, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Elections to the Seimas,
Article 1 whereof set forth the Law on Elections to the Seimas
(wording of 27 June 1996 with subsequent amendments and
supplements) in a new wording. The Law on Elections to the Seimas
(wording of 18 July 2000) came into force on 19 July 2000.
Article 37 of the Law on Elections to the Seimas (wording of
18 July 2000) established the following:
"Candidates for Members of the Seimas may be nominated by:
(1) in single-member constituencies or the multi-member
constituencya party registered pursuant to the Law on Political
Parties and Political Organisations no later than 65 days prior
to the election;
(2) in a single-member constituencyevery citizen of the
Republic of Lithuania who qualifies to be elected as a Member of
the Seimas, may nominate himself for the Member of the Seimas,
provided his candidature is supported by signatures of no less
than 1,000 voters of that constituency.
In the multi-member constituency parties shall nominate
their candidates by presenting a list of candidates in which
candidates are recorded in the succession established by the
party. Unless the statutes of a party provide otherwise,
candidates in single-member constituencies and the list of the
candidates, recorded in succession, in the multi-member
constituency must be approved at the congress or conference of
the party. The list of candidates (joint list) must not include
less than 25 and more than 141 candidates."
After the Law on Elections to the Seimas has been set forth
in a new wording of 18 July 2000, Paragraph 2 of Article 7 of
this law was also amended, in which it was established that
"meetings and voting of electoral commissions shall be open and
may be observed by representatives and observers of political
parties and political organisations (hereinafterparties), and
candidates for Members of the Seimas". Therefore, the notion
"party" used in Article 37 of the Law on Elections to the Seimas
(wording of 18 July 2000) also included political parties and
political organisations.
6. The Law on Elections to the Seimas (wording of 18 July
2000) has also been amended and/or supplemented more than once,
inter alia by the Republic of Lithuania Law on Amending and
Supplementing Articles 2, 5-1, 6, 7, 15, 16, 18, 21, 22, 23, 25,
31, 34, 37, 38, 39, 41, 51, 61, 65, 67, 67-1, 72, 74, 78, 82, 90
and 91 of the Law on Elections to the Seimas which came into
force on 30 April 2008.
Article 37 titled "Nomination of Candidates for the Members
of the Seimas" of the Law on Elections to the Seimas (wording of
15 April 2008) provides:
"Candidates for the Seimas Member may be nominated:
(1) no later than 65 days prior to the election, in single-
member constituencies or the multi-member constituencyby a
party, which is registered pursuant to the Law on Political
Parties and which meets the requirements regarding the number of
party members, laid down in the Law on Political Parties;
2) in a single-member constituencyby every citizen of the
Republic of Lithuania who qualifies to be elected as a Member of
the Seimas, may nominate himself for the Member of the Seimas,
provided his candidature is supported by signatures of no less
than 1,000 voters of that constituency.
In the multi-member constituency parties shall nominate
their candidates by presenting a list of candidates in which
candidates are recorded in the succession established by the
party. Unless the statutes of a party provide otherwise,
candidates in single-member constituencies and the list of the
candidates, recorded in succession, in the multi-member
constituency must be approved at the congress or conference of
the party. The list of candidates (joint list) must not include
less than 25 and more than 141 candidates."
It needs to be noted that Paragraph 1 (wording of 15 April
2008) of Article 37 of the Law on Elections to the Seimas
(wording of 18 July 2000), which established the requirements for
the parties which may nominate candidates for the Members of the
Seimas, enshrined additional requirements that the number of the
members of a party must meet the requirements of the Law on
Political Parties. It also needs to be noted that after Paragraph
2 of Article 7 of the Law on Elections to the Seimas was amended
by the said Law on Amending and Supplementing Articles 2, 5-1, 6,
7, 15, 16, 18, 21, 22, 23, 25, 31, 34, 37, 38, 39, 41, 51, 61,
65, 67, 67-1, 72, 74, 78, 82, 90 and 91 of the Law on Elections
to the Seimas, which was adopted on 15 April 2008, after the
words "political organisations" were deleted from it, the right
to nominate candidates for the Members of the Seimas was reserved
only to political parties which meet the requirements established
in the Law on Political Parties.
7. Article 1 of the Law on Elections to the Seimas (wording
of 18 July 2000) inter alia established that Members of the
Seimas shall be elected in single-member constituencies and the
multi-member constituency in mixed-system elections, while
Article 9 (wording of 20 June 2002) of the same law inter alia
established that for the organisation and conduct of elections,
the territory of the Republic of Lithuania shall be divided into
71 single-member constituencies, also that one multi-member
constituency shall be formed where all citizens of the Republic
of Lithuania eligible to vote shall cast their votes.
8. While construing Paragraph 1 (wording of 18 April 2008)
(whose compliance with the Constitution, to a certain extent, is
disputed by the petitioner) of Article 37 of the Law on Elections
to the Seimas (wording of 18 July 2000) in the context of the
whole legal regulation established in this law, one is to hold
that the legislator established a mixed system of elections, i.e.
such system of elections of the Members to the Seimas, where 70
Members of the Seimas are elected in the multi-member
constituency according to the proportional system of elections
only from the candidates which are included in the lists of
political parties, while 71 Members of the Seimas are elected
according to the majoritarian system in single-member
constituencies, in which not only the citizens nominated by
political parties may be candidates, but also the citizens who
nominate themselves if they meet the requirements (conditions) of
the passive electoral right established in the Law on Elections
to the Seimas. Therefore, by the legal regulation enshrined in
Paragraph 1 of Article 37 of the Law on Elections to the Seimas,
a citizen, who seeks to become a Member of the Seimas and who is
not directly or indirectly linked to any party and who meets the
requirements of the law, is not deprived of the opportunity to
nominate himself as a candidate to the Members of the Seimas.
It needs to be noted that a mixed system of elections has
been enshrined in the Law on Elections to the Seimas as from the
coming into force of its very first wordingthat of 9 July 1992.
It also needs to be noted that the mixed system of elections
is also applied for the elections of parliaments of various
European democratic countries (the Federal Republic of Germany,
the Republic of Hungary, the Republic of Italy, etc.).
II
1. The Supreme Administrative Court of Lithuania, the
petitioner, requests to investigate whether Paragraph 1 (wording
of 15 April 2008) of Article 37 of the Law on Elections to the
Seimas (wording of 18 July 2000), to the extent that it provides
that candidates for the Members of the Seimas may be nominated in
the multi-member constituency only by a party, which is
registered pursuant to the Law on Political Parties and which
meets the requirements regarding the number of party members,
laid down in the Law on Political Parties, is not in conflict
with Paragraph 1 of Article 34, Paragraph 2 of Article 35 and
Paragraph 1 of Article 55 of the Constitution.
2. Paragraph 1 of Article 34 of the Constitution provides
that citizens who, on the day of election, have reached 18 years
of age, shall have the electoral right, Paragraph 2 of the same
article provides that the right to be elected shall be
established by the Constitution of the Republic of Lithuania and
by the election laws, and Paragraph 3 of the same article
provides that citizens who are recognised incapable by court
shall not participate in elections.
Paragraph 1 of Article 35 of the Constitution provides that
citizens shall be guaranteed the right to freely form societies,
political parties and associations, provided that the aims and
activities thereof are not contrary to the Constitution and laws,
Paragraph 2 of the same article provides that no one may be
compelled to belong to any society, political party, or
association and Paragraph 3 of the same article provides that the
founding and activities of political parties and other political
and public organisations shall be regulated by law.
Paragraph 1 of Article 55 of the Constitution provides that
Members of the Seimas who shall be elected for a four-year term
on the basis of universal, equal, and direct suffrage by secret
ballot, Paragraph 2 of the same article provides that the Seimas
shall be deemed elected when not less than 3/5 of the Members of
the Seimas have been elected and Paragraph 3 of the same article
provides that the procedure for election of Members of the Seimas
shall be established by law.
Article 34 and Article 55 of the Constitution enshrine
certain constitutional imperatives of the legal regulation of
electoral relations, inter alia elections to the Seimas. The
imperatives of the legal regulation of electoral relations are
also enshrined in other articles of the Constitution, inter alia
Articles 56, 57, 58, 78, 79, 81 and 119 thereof.
3. In this context it needs to be noted that the provisions
of the official constitutional doctrine of elections were
formulated and developed in various acts of the Constitutional
Court adopted in former constitutional justice cases, inter alia
in the Constitutional Court conclusions of 23 November 1996 and 5
November 2004 regarding the requests of the President of the
Republic whether the laws on elections to the Seimas were not
violated, while in the aspect of elections of municipal
councilsthe Constitutional Court Ruling "On the compliance of
Paragraph 1 of Article 34 (wording of 21 December 2006) of the
Republic of Lithuania Law on Elections to Municipal Councils with
the Constitution of the Republic of Lithuania" of 9 February
2007.
4. Article 2 of the Constitution establishes that
sovereignty shall belong to the Nation. The Nation shall execute
its supreme sovereign power either directly or through its
democratically elected representatives (Article 4 of the
Constitution). In Paragraph 1 of Article 33 of the Constitution
it is inter alia established that citizens shall have the right
to participate in the governance of their state both directly and
through their democratically elected representatives. One of
fundamental characteristics of a democratic state is democratic
elections of representative institutions of state power. It is
through elections that every citizen accomplishes his right to
participate in running his country along with the other citizens
(Constitutional Court conclusion of 23 November 1996), in the
formation of the Seimasthe institution representing the Nation.
It needs to be noted that when emphasising the importance of
elections of the represented institutions, the Constitutional
Court has held that in a constitutional democracy, special
requirements are raised to the formation of political
representative institutions. These institutions may not be formed
in a way so that there might arise doubts as to their legitimacy
and legality, inter alia, as to the fact whether the principles
of a democratic state under the rule of law were not violated in
the course of election of persons to political representative
institutions. Otherwise, people's trust in the representative
democracy, state institutions, and the state itself, would be
undermined. Democratic elections are an important form of
citizens' participation in governing of the sate, as well as it
is a necessary element of the formation of state political
representative institutions. Elections may not be regarded as
democratic, nor their results as legitimate and legal, if the
elections are held by trampling on the principles of democratic
elections established in the Constitution, and by violating
democratic electoral procedures (Constitutional Court conclusion
of 5 November 2004). While enshrining the provisions of the
electoral right by means of a law, the legislator is obliged to
follow these imperatives of legal regulation which are enshrined
in the Constitution.
5. The provision of Article 34 of the Constitution that
citizens who, on the day of election, have reached 18 years of
age, shall have the electoral right (Paragraph 1) enshrines the
so-called active electoral right, i.e. the possibility of persons
to participate in the elections to the corresponding institutions
of public power by freely choosing for which of the nominated
candidate or which candidates to vote. The provision of Paragraph
2 of this article that the right to be elected shall be
established by the Constitution of the Republic of Lithuania and
by the election laws enshrines the so-called passive electoral
right, i.e. the opportunity for a person to nominate himself for
the members of the corresponding elected institution of public
power under the procedure established by the Constitution and
laws, therefore the opportunity to seek to be elected. Paragraph
3 of Article 34 of the Constitution establishes a restriction for
the active and passive electoral rightpersons who are recognised
incapable by court shall not have this right.
All the provisions of Article 34 of the Constitution are
interrelated. In the context of the constitutional justice case
at issue, while construing the provision of Paragraph 1 of
Article 34 together with Paragraphs 2 and 3 of Article 34, it
needs to be noted that citizens who, on the day of election, have
reached 18 years of age and who are not recognised incapable by
court shall have the right to elect only those persons as members
of the corresponding institutions of public power, who meet the
requirements (conditions) of the Constitution and the laws which
not in conflict with the Constitution.
6. In this context it needs to be noted that the articles of
the Constitution which regulate the relations of elections to the
corresponding institutions of public power, i.e. Articles 55, 56
and 57 of the Constitution, consolidating the legal imperatives
of elections of the Members to the Seimas, Articles 78, 79 and 80
thereof, consolidating the legal imperatives of elections of the
President of the Republic, and Article 119 of the Constitution,
consolidating the legal imperatives of elections of the members
to municipal councils, are inseparable from the provisions of
Article 34 of the Constitution which enshrine the constitutional
grounds for the active and passive electoral rights.
It also needs to be noted that even though the
constitutional nature of the said institutions of public power,
their place in the system of institutions of public power, their
functions and empowerments determine the specific legal
regulation of elections of each of these institutions, the
legislator, while regulating the legal relations of elections of
Members of the Seimas, President of the Republic and members of
municipal councils, must heed the imperatives of the universal,
equal and direct suffrage and secret ballot which stem from the
Constitution.
7. From the Constitution, inter alia Articles 34, 55 and 56
thereof, a duty stems for the legislator to consolidate, by means
of a law, a system of elections of Members of the Seimas, to
establish the grounds and procedure of arrangement of elections,
inter alia including nomination of candidates for the Members of
the Seimas, electoral campaigning, procedure of voting,
establishment of the results of election, procedures of settling
electoral disputes, as well as regulation of other relations of
election of Members of the Seimas. In this context it needs to be
emphasised that while establishing the requirements which must be
met by the candidate for the Members of the Seimas, the
legislator must heed the Constitution; he may neither himself
deny, distort or limit the universal, equal and direct suffrage
and secret ballot, nor may he create any legal preconditions for
others to do that.
8. It needs to be noted that in Member States of the
European Union and in other democratic states, while regulating
the relations of elections, one quite often also establishes
special requirements, upon fulfilment (meeting) of which, a
person may nominate himself as a candidate for members of the
parliament, for example, the requirement to collect a certain
number of signatures which confirm the political support of a
certain part of society, or the requirement to pay a certain
deposit of elections. Elections are responsible political
process, therefore, the requirement that candidates for members
of parliament prove to have a certain political support of
society and/or guarantee the validity of their intentions by a
certain (reasonable) financial obligation, is recognised as valid
one.
9. It has been mentioned that the petitioner doubts, whether
the disputed legal regulation meets the principles of the
universal, equal and direct suffrage and secret ballot which are
enshrined in Paragraph 1 of Article 55 of the Constitution. These
principles of the electoral right, as well as the principle of
secret ballot, are established not only in Paragraph 1 of Article
55 of the Constitution, but also in other articles of the
Constitution which regulate the legal relations of elections of
the President of the Republic (Paragraph 2 of Article 78) and
members of municipal councils (Paragraph 2 of Article 119). First
of all, these principles are applicable in the implementation of
the active electoral right.
The principle of universal electoral right which is
enshrined in Paragraph 1 of Article 55 of the Constitution means
that the right to participate in the elections of Members of the
Seimas must be ensured for all the citizens of the Republic of
Lithuania who meet the requirements (conditions) which stem from
the Constitution and the laws which are not in conflict with the
Constitution.
When construing the principle of equal electoral right, it
is universally recognised that it inter alia means that while
organising and holding elections, all the voters must be treated
equally, the vote of each voter is of the same value as the vote
of any other voter and has equal meaning while establishing the
results of the voting.
The principle of direct electoral right requires that
Members of the Seimas would be elected without agents. While
construing the content of this principle, it needs to be noted
that the Constitutional Court has held that the legislator, while
regulating electoral relations, may not establish any such legal
regulation which would create preconditions so that another
person votes for the voter (except when the voter is unable to
implement his such constitutional right by himself due to the
state of his health) (Constitutional Court conclusion of 5
November 2004).
The principle of secret ballot requires to create such
conditions for expressing the will of a voter during the voting
that nobody could control him, exert influence on his choice or
impede him otherwise to express his will freely and
unrestrictedly.
10. In the context of the constitutional justice case at
issue, it needs also to be noted that the Constitution does not
establish a concrete system of elections of Members of the
Seimas. According to the provision of Paragraph 3 of Article 55
of the Constitution, this is left to decide by the legislator who
has broad discretion. It needs to be noted that by means of a
law, one may establish either only a proportional, or only a
majoritarian, or a different system of elections of Members of
the Seimas, inter alia a mixed system of elections in which the
proportional and majoritarian systems of elections are combined.
It is universally recognised that under the proportional
system of elections to the parliament, in one multi-member
constituency, it is the candidates which are recorded in the
lists of political parties that usually (traditionally) take
part; under the majoritarian system of elections to the
parliament, in single-member constituencies not only individual
candidates nominated by political parties, but also individual
citizens who nominated themselves as candidates under the
procedure established by laws, may be candidates.
In democratic states a so-called mixed system of elections
to the parliament is known, which unites the proportional and
majoritarian systems of elections and from this viewpoint creates
a possibility not only for persons who are recorded in the lists
of the political parties, but also for individual persons who,
under the procedure established by the laws, nominated themselves
or were nominated by parties, to be candidates during the
elections.
Neither only proportional, nor only majoritarian, nor a
different system of elections, inter alia a mixed system of
elections in which the proportional and majoritarian systems of
elections are combined, may be regarded as in themselves creating
the preconditions to violate the requirements of free and
democratic elections, the universal and equal suffrage, secret
ballot and other standards of elections of a democratic state
under the rule of law. However, it also needs to be noted that
while enshrining the corresponding system of elections of Members
of the Seimas, the legislator must heed the norms and principles
of the Constitution and the constitutional notion of the Seimas
as the representation of the Nation.
11. As it has been mentioned, elections are a political
process. The electoral right (both active and passive) is closely
related to the right of a citizen of the Republic of Lithuania to
participate in the governance of his state consolidated in
Article 33 of the Constitution, as well as with the right of
citizens to freely form political parties, provided that the aims
and activities thereof are not contrary to the Constitution and
laws consolidated in Article 35 of the Constitution. It needs to
be noted that the purpose of establishment of political parties
and their activity are inseparable from seeking public power,
therefore, also from participation in the elections to the
representative institutions of public power, inter alia the
Seimas.
12. Whichever system of elections of Members of the Seimas
(only proportional, only majoritarian or another, inter alia
mixed system of elections in which the proportional and
majoritarian systems of elections are combined) is chosen by the
legislator, under the Constitution, it is not allowed that one
establish any such legal regulation which would prevent the
political parties and their nominated candidates from
participating in the elections of Members of the Seimas. In this
Constitutional Court ruling it has been held that in itself such
system of elections of Members of the Seimas where the
proportional and majoritarian systems of elections are combined
does not create preconditions for violation of the standards of
universal, equal and direct voting as well as other standards of
elections of a democratic state under the rule of law.
Thus, such system of elections of Members of the Seimas when
the candidates recorded into the lists of political parties and
the individual candidates nominated by political parties compete
for the mandates of Members of the Seimas is, under the
Constitution, possible if one ensures the possibility also for
the citizens who are not recorded in the lists of political
parties or not nominated by them to participate in the elections
to the Seimas.
13. While regulating the relations of elections of Members
of the Seimas by means of a law, the legislator is bound by the
Constitution, inter alia by the requirement which stems from
Paragraph 2 of its Article 35 thereof whereby "no one may be
compelled to belong to any <...> political party <...>".
Therefore, under the Constitution, the legislator may not
establish any such legal regulation whereby a person, who wishes
to make use of his passive electoral right (Paragraph 2 of
Article 34 and Article 56 of the Constitution) in election of
Members of the Seimas, would be compelled to become a member of
any political party or to link himself to any political party by
relations other than those of formal membership.
14. Such legal regulation of elections of Members of the
Seimas where the candidates recorded into the lists of political
parties or the individual candidates nominated by them compete
for the mandates of Members of the Seimas at the same time
ensuring the possibility for the citizens who are not recorded in
the lists of political parties or not nominated by them to
participate in the elections to the Seimas may not be assessed as
in itself deviating from the constitutional concept of elections
to the Seimas, inter alia from that enshrined in Articles 34 and
55 of the Constitution, nor may it be assessed as violating the
imperative stemming from Paragraph 2 of Article 35 of the
Constitution, whereby no one may be compelled to belong to any
party.
15. In the context of this constitutional justice case at
issue, it needs to be noted that the role of political parties
has been analysed more than once also in the practice of courts
of foreign states. In its judgment of 14 December 2004, while
investigating the constitutionality of the Law on Political
Parties, the Constitutional Tribunal of the Republic of Poland
held that "the state recognises the essential function of the
political parties in a democratic systemto affect the formation
of the state policy. It is a public function, closely linked to
the state power. The parties, being an element of the political
system, are a fundamental institute of political life". In its
ruling of 15 October 1968, in the case Williams v. Rhodes, the US
Supreme Court held: "The right to form a party for the
advancement of political goals means little if a party can be
kept off the election ballot, and thus denied an equal
opportunity to win votes." In its decision of 27 July 2003, in
the case Figueroa v. Canada, while assessing the
constitutionality of the Elections Act, the Supreme Court of
Canada held that "political parties have a much greater capacity
than any one citizen to participate in the open debate that the
electoral process engenders. By doing so in a representative
capacity, on behalf of their members and supporters, political
parties act as a vehicle for the participation of individual
citizens in the political life of the country. <
> the
participation of political parties in the electoral process also
provides individuals with the opportunity to express an opinion
on governmental policy and the proper functioning of public
institutions".
III
On the compliance of Paragraph 1 (wording of 15 April 2008)
of Article 37 of the Law on Elections to the Seimas with
Paragraph 1 of Article 34, Paragraph 2 of Article 35 and
Paragraph 1 of Article 55 of the Constitution.
1. It has been mentioned that the Constitutional Court is
requested to investigate, whether Paragraph 1 of Article 37 of
the Law on Elections to the Seimas, to the extent that it
provides that candidates for the Members of the Seimas may be
nominated in the multi-member constituency only by the party
which is registered pursuant to the Law on Political Parties and
which meets the requirements regarding the number of party
members, laid down in the Law on Political Parties, is not in
conflict with Paragraph 1 of Article 34, Paragraph 2 of Article
35 and Paragraph 1 of Article 55 of the Constitution.
2. In the opinion of the Supreme Administrative Court of
Lithuania, the petitioner, the disputed legal regulation
establishing that only political parties have the right to
nominate candidates for Members of the Seimas in the multi-member
constituency violates the democratic principles of the universal,
equal and direct suffrage, since the citizens who are not members
of a political party may nominate candidates for Members of the
Seimas only in single-member constituencies.
3. In this ruling it has been mentioned that from Articles
34, 55 and 56 of the Constitution, a duty stems for the
legislator to consolidate, by means of a law, a system of
elections of Members of the Seimas, to establish the grounds and
procedure of arrangement of elections, inter alia including
nomination of candidates to Members of the Seimas, electoral
campaigning, procedure of voting, establishment of the results of
elections, procedures of settling electoral disputes, as well as
regulation of other relations of elections of Members of the
Seimas.
It has been mentioned that the Constitution does not
establish a concrete system of elections of Members of the
Seimas. According to the provision of Paragraph 3 of Article 55
of the Constitution, this is left to decide by the legislator who
has broad discretion. Neither only proportional, nor only
majoritarian, nor a different system of elections, inter alia a
mixed system of elections in which the proportional and
majoritarian systems of elections are combined, may be regarded
as in themselves creating preconditions to violate the
requirements of free and democratic elections, the universal and
equal suffrage, secret ballot and other standards of elections of
a democratic state under the rule of law.
4. As it has already been mentioned, establishment of
political parties and their activity are inseparable from seeking
public power, therefore, also from participation in the elections
to the representative institutions of public power, inter alia
the Seimas. Therefore, whichever system of elections of Members
of the Seimas (only proportional, only majoritarian or another,
inter alia mixed system of elections, in which the proportional
and majoritarian systems of elections are combined) is chosen by
the legislator, under the Constitution, it is not permitted that
one establish any such legal regulation which would prevent the
political parties and their nominated candidates from
participating in the elections of Members of the Seimas.
In this ruling it has been held that, under the
Constitution, such system of elections of Members of the Seimas
when the candidates recorded into the lists of political parties
and the individual candidates nominated by political parties
compete for the mandates of Members of the Seimas, is possible if
one ensures the possibility also for the citizens who are not
recorded in the lists of political parties or who are not
nominated by them to participate in the elections to the Seimas.
5. It has been mentioned that while regulating the relations
of elections of Members of the Seimas by means of a law, the
legislator is bound by the Constitution, inter alia by the
requirement which stems from Paragraph 2 of Article 35 thereof
that "no one may be compelled to belong to any <...> political
party <...>". Therefore, under the Constitution, the legislator
must not establish any such legal regulation whereby a person,
who wishes to make use of his passive electoral right (Paragraph
2 of Article 34 and Article 56 of the Constitution) in election
of Members of the Seimas, would be compelled to become a member
of any political party or to link himself to any political party
by relations other than those of formal membership.
It has also been mentioned that such legal regulation of
elections of Members of the Seimas when the candidates recorded
into the lists of political parties or the individual candidates
nominated by them compete for the mandates of Members of the
Seimas at the same time ensuring the possibility for the citizens
who are not recorded in the lists of political parties or not
nominated by them to participate in the elections to the Seimas
may not be assessed as in itself deviating from the
constitutional concept of elections to the Seimas, inter alia
that enshrined in Articles 34 and 55 of the Constitution, nor may
it be assessed as violating the imperative stemming from
Paragraph 2 of Article 35 of the Constitution, whereby no one may
be compelled to belong to any party.
6. It has also been mentioned that while construing
Paragraph 1 (wording of 18 April 2008) (whose compliance with the
Constitution, to a certain extent, is disputed by the petitioner)
of Article 37 of the Law on Elections to the Seimas (wording of
18 July 2000) in the context of the whole legal regulation
established in this law, one is to hold that the legislator
established a mixed system of elections, i.e. such system of
elections of Members of the Seimas, when 70 Members of the Seimas
are elected in the multi-member constituency according to the
proportional system of elections only from the candidates which
are included in the lists of political parties, while 71 Members
of the Seimas are elected according to the majoritarian system in
single-member constituencies, in which not only the citizens
nominated by political parties may be candidates, but also the
citizens who nominate themselves if they meet the requirements
(conditions) of the passive electoral right established in the
Law on Elections to the Seimas. Therefore, by the legal
regulation enshrined in Paragraph 1 of Article 37 of the Law on
Elections to the Seimas, a citizen, who seeks to become a Member
of the Seimas and who is not directly or indirectly bound to any
party, and who meets the requirements of the law, is not deprived
of the opportunity to nominate himself as a candidate to the
Members of the Seimas.
Therefore, by the legal regulation enshrined in Paragraph 1
(wording of 15 April 2008) of Article 37 of the Law on Elections
to the Seimas, to the extent that it provides that only the party
which is registered pursuant to the Law on Political Parties and
which meets the requirements regarding the number of party
members, laid down in the Law on Political Parties, may nominate
candidates for Members of the Seimas in the multi-member
constituency, one does not violate the active electoral right of
citizens enshrined in Paragraph 1 of Article 34 of the
Constitution, the imperative which prohibits to compel a person
to belong to any political party and which is enshrined in
Paragraph 2 of Article 35 of the Constitution, and one does not
deviate from the democratic principles of elections to the Seimas
enshrined in Paragraph 1 of Article 55 of the Constitution.
7. It needs to be noted that due to all the circumstances
specified here, the legal situation considered in this
constitutional justice case essentially differs from the legal
situation considered in the constitutional justice case
subsequent to the petition of the Supreme Administrative Court of
Lithuania, the petitioner, requesting to investigate whether the
provision "only a party may nominate candidates for members of a
municipal council" of Paragraph 1 of Article 34 (wording of 21
December 2006) of the Republic of Lithuania Law on Elections to
Municipal Councils, to the extent that it, according to the
petitioner, granted the exclusive rights to the political parties
to nominate candidates for the members of municipal councils, was
not in conflict with the Constitution, in which the
Constitutional Court, on 9 February 2007, adopted the Ruling "On
the compliance of Paragraph 1 of Article 34 (wording of 21
December 2006) of the Republic of Lithuania Law on Elections to
Municipal Councils with the Constitution" (on which it is
grounded in the petition of the petitioner) wherein it recognised
that Paragraph 1 of Article 34 (wording of 21 December 2006) of
the Law on Elections to Municipal Councils to the extent that
after the legislator had chosen only the proportionate system of
elections to municipal councils, he had not established that
permanent residents of administrative units of the territory of
the Republic of Lithuania may be elected to the councils of
respective municipalities even by being included in the lists of
candidates to the councils of municipal councils that are drawn
by entities other than political parties, was in conflict with
Paragraph 2 of Article 119 of the Constitution.
Such difference of these two legal situations is determined
inter alia by the fact that in the said formerly investigated
constitutional justice case one investigated the provisions of
the law regulating the elections to municipal councils. The
Constitutional Court has more than once held that state
administration and local self-government are two different
systems of public power enshrined in the Constitution and they
are formed and function on different constitutional bases; while
enjoying constitutional discretion, the legislator may establish
different systems of elections to the Seimas and to municipal
councils. In this context, it needs to be noted that under the
Law on Elections to Municipal Councils, the compliance of the
provisions of which with the Constitution was investigated in the
Constitutional Court Ruling "On the compliance of Paragraph 1 of
Article 34 (wording of 21 December 2006) of the Republic of
Lithuania Law on Elections to Municipal Councils with the
Constitution" of 9 February 2007, municipal councils are elected
according to the system of elections of proportional
representation in the multi-member constituency in which only the
candidates recorded in the lists of political parties could
compete, while Members of the Seimas, under the Law on Elections
to the Seimas, are elected according the mixed system of
elections in the multi-member constituency and single-member
constituencies, which creates the opportunity not only for single
persons who are recorded in the lists of candidates of the
political parties or nominated by them to be candidates in the
elections to the Seimas, but also for individual persons who,
under the procedure established by the laws, nominated themselves
as candidates.
8. Taking account of the arguments set forth, one is to draw
a conclusion that Paragraph 1 (wording of 15 April 2008) of
Article 37 of the Law on Elections to the Seimas to the extent
that it provides that candidates for the Members of the Seimas
may be nominated in the multi-member constituency only by a
political party, which is registered pursuant to the Law on
Political Parties and which meets the requirements regarding the
number of party members, laid down in the Law on Political
Parties, is not in conflict with Paragraph 1 of Article 34,
Paragraph 2 of Article 35 and Paragraph 1 of Article 55 of the
Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Paragraph 1 (wording of 15 April 2008,
Official Gazette Valstybės žinios, 2008, No. 50-1839) of Article
37 of the Republic of Lithuania Law on Elections to the Seimas to
the extent that it provides that candidates for the Members of
the Seimas may be nominated in the multi-member constituency only
by a party, which is registered pursuant to the Law on Political
Parties and which meets the requirements regarding the number of
party members, laid down in the Law on Political Parties, is not
in conflict 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
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis