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On the Seimas resolution concerning the formation of the Council of the National Radio and Television of Lithuania

Case No. 3/97

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of the Resolution of the Seimas of the Republic of Lithuania “On Recognising the Seimas Resolution ‘On the Appointment of the Members of the Council of the National Radio and Television of Lithuania’ as No Longer Valid and the Formation of the Council of the National Radio and Television of Lithuania” of 5 December 1996 with the Constitution

 

29 May 1997, Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė

Česlovas Juršėnas, a Seimas member, acting as the representative of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Mindaugas Briedis, a Seimas member, Paulius Vinkleris, the consultant at the Legal Division of the Office of the Seimas, both acting as the representatives of the Seimas, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 8 May 1997, considered case No. 3/97 subsequent to the petition submitted to the Court by a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the Resolution of the Seimas of the Republic of Lithuania “On Recognising the Seimas Resolution ‘On the Appointment of the Members of the Council of the National Radio and Television of Lithuania’ as No Longer Valid and the Formation of the Council of the National Radio and Television of Lithuania” of 5 December 1996 was in compliance with Articles 7, 67, 69 and 70 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 5 December 1996, the Seimas adopted its Resolution “On Recognising the Seimas Resolution ‘On the Appointment of the Members of the Council of the National Radio and Television of Lithuania’ as No Longer Valid and the Formation of the Council of the National Radio and Television of Lithuania” (Official Gazette Valstybės žinios, 1996, No. 120-2820; hereinafter referred to as the impugned resolution of the Seimas). Following the 5 December 1996 Law on Amending Article 29 of the Law on the Provision of Information to the Public, the Seimas recognised the Resolution of the Seimas “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” as no longer valid, commissioned the Education, Science and Culture Committee of the Seimas with organising the formation of the Council of the National Radio and Television of Lithuania until 31 December 1996 and established that the resolution shall enter into force from the day of its adoption.

II

1. The petitioner grounds his request on the following arguments.

Paragraph 1 of Article 69 of the Constitution stipulates that laws shall be enacted in the Seimas in accordance with the procedure established by law; Paragraph 2 of Article 70 of the Constitution prescribes that the laws enacted by the Seimas shall be enforced after signing and official promulgation thereof by the President of the Republic, unless the laws themselves establish a later enforcement date, while Paragraph 2 of Article 7 of the Constitution establishes that only laws which are promulgated shall be valid. The petitioner, on the basis of the said provisions of articles of the Constitution, points out that the Seimas, when adopting the impugned resolution, was following the Law on Amending Article 29 of the Law on the Provision of Information to the Public which, on the day of the adoption of the said resolution, was neither signed nor promulgated by the President of the Republic.

The petitioner also indicates that Item 5 of Article 67 prescribes that the Seimas shall form State institutions provided by law, and shall appoint and dismiss their chief officers. The members of the Council of the National Radio and Television of Lithuania who were appointed by the 5 November 1996 resolution of the Seimas may, according to their status, be equalled to chief officers of such institutions. According to Paragraph 4 of Article 8 of the 8 October 1996 Law on the Provision of Information to the Public, the members of the Council may not be dismissed from office before expiration of the term of appointment save a member of the Council: (1) shall refuse to participate in the work of the Council; (2) without valid excuse, does not participate in the work of the Council for more than 3 months; (3) has committed a crime and is convicted by the court; (4) has lost the citizenship of the Republic of Lithuania.

2. In the court hearing the representative of the petitioner did not agree with the statement of the representatives of the party concerned that the indication in the preamble of the impugned resolution of the Seimas to the Law on Amending Article 29 of the Law on the Provision of Information to the Public had had no legal effects. In his opinion, the impugned resolution of the Seimas is inseparably connected with the laws passed by the Seimas on 5 December 1996—the Law on Amending Article 29 of the Law on the Provision of Information to the Public and the Law on Amending and Supplementing Articles 4, 8 and 10 of the Law on National Radio and Television of Lithuania. These laws established new norms under which the Council of the National Radio and Television must be formed and under procedure of open competition the Director General of the Council of the National Radio and Television shall be elected. Both aforementioned laws were signed by the President of the Republic and officially promulgated in the official gazette “Valstybės žinios” on 14 December 1996, while the impugned resolution of the Seimas which was designated to implement the said laws went into effect on 5 December 1996. Thus, by the impugned resolution of the Seimas the laws which had not come into force were implemented.

The representative of the petitioner pointed out that, on 5 November 1996, following Article 29 of the Law on the Provision of Information to the Public of 2 June 1996 and Article 8 of the Law on the National Radio and television of Lithuania of 8 October 1996, the Seimas adopted the Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” by which 4 members of the Council of the National Radio and Television of Lithuania were appointed. The representative of the petitioner asserted that after the Seimas had recognised the Seimas resolution of 5 November 1996 regarding appointment of Council members, they were dismissed from office.

The representative of the petitioner also indicated that on 12 December 1996 the Seimas passed 2 laws in addition: the Law on Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public by which it was established that the powers of the members of the Council of the National Radio and Television of Lithuania who had been appointed before by the President of the Republic and the Seimas shall cease; and the Law on Amending and Supplementing Article 8 of the Law on the National Radio and Television of Lithuania by which a new basis for dismissing from office of the members of the Council of the National Radio and Television of Lithuania was established: i.e. in the case of alteration of the legal basis of appointing a Council member. The said laws were adopted for the purpose of backing the illegitimate impugned resolution of the Seimas. The petitioner pointed out that the said laws were passed on 12 December 1996 and they were signed by the President of the Republic and officially promulgated in “Valstybės žinios” on 14 December 1996, i.e. they went into effect later than the impugned resolution of the Seimas.

The representative of the petitioner noted during the court hearing that in such a case one should pay attention to the principle that laws have no retroactive validity, which is universally recognised in the legal doctrine and which has been emphasised in rulings of the Constitutional Court many a time.

III

1. In the course of the preparation of the case for the court hearing, in his paper of 7 March 1997, in replying to the arguments of the petitioner, the representative of the party concerned explained that it is impossible to investigate the relation of the impugned resolution of the Seimas with Paragraph 1 of Article 7 of the Constitution without having in mind the other articles of the Constitution which had been mentioned by the petitioner. First of all one should assess the compliance of the impugned legal act with Article 69 of the Constitution, Paragraphs 1 and 2 whereof establish the procedure of adoption of laws, Paragraph 3—that of the adoption and amendment of constitutional laws, while Paragraph 4 of the said article stipulates that provisions of the laws may also be adopted by the referendum. The representative of the party concerned concludes that the content of Article 69 does not allow linking this article with the impugned resolution of the Seimas.

Paragraph 1 of Article 70 determines the enforcement procedure of the laws. Paragraph 2 of this article stipulates that other acts adopted by the Seimas (as well as other Seimas resolutions) and the Statute of the Seimas shall be signed by the Chairperson of the Seimas, while the said acts shall become effective the day following the promulgation thereof, unless the laws themselves provide for another procedure of enforcement. Article 3 of the impugned resolution of the Seimas provides that this resolution shall come into force from the moment of its adoption. It was signed and promulgated by the Chairperson of the Seimas as established in Paragraph 2 of Article 70 of the Constitution. The representative of the party concerned is of the opinion that by adopting the impugned resolution the Seimas accomplished the provision of Paragraph 2 of Article 70 of the Constitution.

The representative of the party concerned also contends that the provision contained in the preamble of the impugned resolution has not given rise to any legal effects. In his opinion, according to the legal theory, the preamble of a legal act is an introductory part indicating the aims and motives of the adoption of the said act but not that of a normative character. This is also confirmed by shorthand records of the Seimas sitting, as in the sitting during deliberations over the impugned resolution of the Seimas there were propositions not to enter the said preamble into the resolution at all. The party concerned notes that the allusion formulated in the petition for the Constitutional Court that the provision of the preamble of the impugned resolution of the Seimas contradicts Articles 69, 70 and 7 of the Constitution has no legal basis.

In his paper the representative of the party concerned also points out that Article 67 of the Constitution consolidates the functions and powers of the Seimas as an institution of representative power. Item 5 of the said article provides that the Seimas shall form State institutions provided by law, and shall appoint and dismiss their chief officers. On 5 November 1996, by adopting the Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania”, the Seimas neither established any State institution nor appointed its chief officers. Following Article 29 of the then in force Law on the Provision of Information to the Public, the Seimas appointed 4 members of the Council of the National Radio and Television of Lithuania. Therefore, the impugned resolution should not be regarded as contradicting Article 67 of the Constitution.

2. The representative of the party concerned in his supplementary paper of 7 May 1997 explained the following as concerns the impugned resolution of the Seimas.

Paragraph 1 of Article 7 of the Constitution stipulates: “Any law or other statute which contradicts the Constitution shall be invalid.” This fundamental provision of Chapter I entitled “The State of Lithuania” of the Constitution regarding constitutionality of laws and other legal acts is realised through the competence of the Constitutional Court consolidated in Paragraph 1 of Article 102 and Paragraph 1 of Article 105 of the Constitution. In the legal system of the Republic of Lithuania, it is only the Constitutional Court which may judge if the laws and acts of the Government are in compliance with the Constitution or laws.

The representative of the party concerned contends that the contradiction of laws and other acts of the Seimas, as well as the impugned resolution of the Seimas, may be investigated, in essence, in view of the Constitution. The problem of both the law and the impugned resolution of the Seimas as a substatutory act is left for the so-called “self-control of the Seimas”, though, it goes without saying, the acts of the Seimas may not contradict the law.

It is evident from Paragraph 1 of Article 102 and Paragraph 1 of Article 105 of the Constitution that Seimas resolutions, as acts of a legislative body, are comparable to laws, and the Constitutional Court, under the aforementioned articles of the Constitution, as well as Article 63 of the Law on the Constitutional Court, may examine problems of compliance of Seimas resolutions with the Constitution only.

It is noted in the supplementary paper that the Constitution is an indivisible, co-ordinated act as regards the content of its provisions. It regulates in detail, even in precision most possible a part of questions of state life, whereas a part of questions of state life are regulated by the norms of greater or smaller definition as to their content, while some questions are not constitutionally regulated at all, i.e., as regards their relation with the Constitution, they are to be judged to be constitutionally non-regulated.

Paragraph 1 of Article 44 of the Constitution stipulates that “censorship of mass media shall be prohibited”, while Paragraph 2 of the said article provides that “the State, political parties, political and public organisations, and other institutions or persons may not monopolise means of mass media”. The Constitution does not consolidate any principles which as constitutional principles would determine the legal status of the National Radio and Television.

According to Article 29 of the Law on the Provision of Information to the Public and the Law on the National Radio and Television of Lithuania implementing the aforesaid law, the National Radio and Television of Lithuania shall be a functioning institution. However, the norms of these laws have no constitutional power and the Constitutional Court may not examine this relation (between a law of the Seimas and a resolution of the Seimas), while the Constitution even does not mention such an institution as the National Radio and Television of Lithuania.

It is alleged that the impugned resolution of the Seimas would contradict Paragraph 2 of Article 67 as to the form if universally binding rules of a general character were formulated therein. The impugned resolution of the Seimas is an act of an individual character which does not contain any universally binding rules of a general character which should be formulated in the form of law. Thus, it does not contradict the Constitution as to the form.

It is also indicated that the provision of the impugned resolution of the Seimas, mentioning that the Seimas was following the 5 December 1996 Law on Amending Article 29 of the Law on the Provision of Information to the Public, has had no legal effects. This should be judged to be a “technical error” which was significant for the going into effect of the act but not, however, for the essence of the act. It is alleged that, according to the legal theory, the preamble of a legal act is an introductory part indicating the aims and motives of the adoption of the said act but not that of a normative character. Such a conclusion is also grounded on the fact that in the sitting of the Seimas during deliberations over the impugned resolution of the Seimas there were propositions not to enter the Law on Amending Article 29 of the Law on the Provision of Information to the Public into the preamble.

In the court hearing the representatives of the party concerned M. Briedis and P. Vinkleris virtually reiterated the said reasoning and arguments.

The Constitutional Court

holds that:

1.1. On 2 July 1996, the Seimas passed the Law on the Provision of Information to the Public. Article 1 of the said law consolidates that this law shall establish the procedure of obtaining, processing, and disseminating public information and the rights and responsibility of public information producers, disseminators, the owners thereof and journalists.

Paragraph 3 of Article 29 of the said law established the principles and procedure of formation of governing bodies of the National Radio and Television of Lithuania. It read: “The Council shall be the highest governing body of the National Radio and Television of Lithuania, established for a period of 3 years and comprised of 13 individuals. 3 of the members shall be appointed by the President of the Republic, 4—by the Seimas, 6—by drawing lots by choosing 1 from the Lithuanian Periodical Press Publishers’ Association, Lithuanian Journalists’ Union, Lithuanian Journalists’ Society, Lithuanian Writers’, Lithuanian Cinematographers’ Union, Lithuanian Theatre Union, Lithuanian Composers’ Union, Lithuanian Artists’ Union, and Lithuanian Architects’ Union each. After the lapse of a 3-year period, the representatives of 6 of the selected organisations will be changed by drawing lots with representatives of those 3 organisations, which were not selected for the Council during the first term of office.”

On 8 October 1996, the Seimas passed the Law on the National Radio and Television of Lithuania. Paragraph 1 of Article 8 of the said law provided that the Council and administration of the National Radio and Television of Lithuania shall be governing bodies of the National Radio and Television of Lithuania. The Council of the National Radio and Television of Lithuania shall be formed pursuant to the procedure established by Article 29 of the Law on the Provision of Information to the Public.

On 5 November 1996, following Article 29 of the Law on the Provision of Information to the Public and Article 8 of the Law on the National Radio and Television of Lithuania, the Seimas passed its Resolution “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” by which appointed 4 members of the Council of the National Radio and Television of Lithuania. Other members of the Council were also appointed in pursuance of the procedure established by law. Thus, implementing the norms of the Law on the Provision of Information to the Public and those of the Law on the National Radio and Television of Lithuania, the Council—a governing body of the National Radio and Television of Lithuania—was formed.

1.2. On 5 December 1996, the newly elected Seimas passed the Law on Amending Article 29 of the Law on the Provision of Information to the Public by which amended Paragraph 3 of Article 29 and set it forth as follows: “The Council shall be the highest governing body of the National Radio and Television of Lithuania, established for a period of 3 years and comprised of 15 individuals. The following art creators’ and public organisations shall delegate their representatives to the Council of the National Radio and Television of Lithuania: the Lithuanian Architects’ Union, Lithuanian Artists’ Union, Society of the Lithuanian Language, Lithuanian Catholic Academy of Science, Lithuanian Cinematographers’ Union, Lithuanian Composers’ Union, Lithuanian Periodical Press Publishers’ Association, Association of Lithuanian House of Economy, Trade and Crafts, Lithuanian Writers’ Union, Charter of Citizens of the Republic of Lithuania, Lithuanian Family Centre, Lithuanian Theatre Union, Lithuanian Lawyers’ Society, Lithuanian Journalists’ Society, Lithuanian Journalists’ Union. The formation of the Council of the National Radio and Television of Lithuania shall be organised by the Education, Science and Culture Committee of the Seimas.”

This amendment of the law established other principles and procedure of formation of the National Radio and Television of Lithuania than those provided for in the former norm of Paragraph 3 of Article 29 of the Law on the Provision of Information to the Public.

On the same day, i.e. 5 December 1996, the Seimas adopted the Resolution “On Recognising the Seimas Resolution ‘On the Appointment of the Members of the Council of the National Radio and Television of Lithuania’ as No Longer Valid and the Formation of the Council of the National Radio and Television of Lithuania”. Following the 5 December 1996 Law on Amending Article 29 of the Law on the Provision of Information to the Public, the Seimas recognised the resolution of the Seimas “On the Appointment of the Members of the Council of the National Radio and Television of Lithuania” as no longer valid, commissioned the Education, Science and Culture Committee of the Seimas with organising the formation of the Council of the National Radio and Television of Lithuania until 31 December 1996 and established that the resolution shall enter into force from the day of its adoption.

On 12 December 1996 the Seimas passed the Law on Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public in Article 1 whereof establishing that “after the 12 December 1996 Law on Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public has come into force <...>, the powers of the members of the Council of the National Radio and Television of Lithuania prior appointed by the President of the Republic and the Seimas shall cease.”

2.1. Paragraph 1 of Article 70 of the Constitution stipulates that the laws enacted by the Seimas shall be enforced after signing and official promulgation thereof by the President of the Republic, unless the laws themselves establish a later enforcement date. To implement this constitutional provision, on 6 April 1993 the Seimas passed the Law “On the Procedure of Promulgation and Coming into Force of Republic of Lithuania’s Laws and Other Legal Acts”. Paragraph 1 of Article 1 of this law provides that the official promulgation of laws and other legal acts shall be their promulgation in the official gazette “Valstybės žinios”. The day of the promulgation in the official gazette “Valstybės žinios” shall be the day of the issue of the said publication which is indicated at the first page of each publication whereof. Paragraph 1 of Article 4 of the said law provides that the laws of the Republic of Lithuania shall be enforced after signing and official promulgation thereof by the President of the Republic, unless the laws themselves establish a later enforcement date. Article 5 of the said law provides that the legal acts adopted by the Seimas shall be enforced the following day after their promulgation in the official gazette “Valstybės žinios”, unless the acts themselves establish a later enforcement date.

The President of the Republic, following Paragraph 1 of Article 71 of the Constitution, did not sign the Law on Amending Article 29 of the Law on the Provision of Information to the Public passed by the Seimas on 5 December 1996 and by his decree of 10 December 1996 returned it to the Seimas for repeated deliberation. On consideration of the amendments moved by the President of the Republic in his decree, during the sitting of 12 December 1996 the Seimas did not approve of them and repeatedly passed the Law on Amending Article 29 of the Law on the Provision of Information to the Public.

The said law was signed by the President of the Republic and was officially promulgated in the official gazette “Valstybės žinios” on 14 December 1996. The law repeatedly adopted by the Seimas went into effect on 14 December 1996.

2.2. It is universally recognised in the legal doctrine that legal acts are divided into laws and substatutory acts.

In view of the case at issue, it is important to establish the place of the laws and other legal acts passed by the Seimas in the legal system, as well as their reciprocity.

Paragraph 1 of Article 7 of the Constitution provides that “any law or other statute which contradicts the Constitution shall be invalid”. This fundamental constitutional principle defines the supremacy of the Constitution in the system of legal acts. The Constitution is defined as the basic law which has supreme legal power in the hierarchical system of laws. Furthermore, the Constitution consolidates basic provisions of legal regulation and constitutes the basis for legislation.

Substatutory acts, including other acts adopted by the Seimas which are mentioned in Paragraph 2 of Article 70 as well, are, as a rule, designated to implement laws, therefore, they are passed in pursuance of valid laws and may not contradict them. Thus, all legal acts must be lawful: laws may not contradict the Constitution, while substatutory legal acts—the Constitution and laws. To implement the lawfulness principle of legal acts, states in their practice make use of the institute of justice and that of administrative justice.

In its ruling 19 January 1994, the Constitutional Court held: “A law is an original legal act adopted in the procedure prescribed by the Constitution of the Republic of Lithuania and the Statute of the Seimas which expresses the legislature’s will and which has the supreme legal power. Therefore, a law can be amended or its validity can be nullified only upon the adoption of another law or recognition of it as contradictory to the Constitution by the Constitutional Court. All other legal acts must be adopted conforming to laws and may not contradict them, i.e. they must be substatutory ones. A substatutory legal act is a legal act adopted by a competent body on the basis of and according to the procedure prescribed by law. A substatutory act is normally an act of administration. The norms of a law are realised by it, however, such an act may not replace the law itself and create new legal rules of general nature that in their power would compete with the norms of the law. It is an act of application of the norms of a law irrespective of the fact whether this act is of one-off (ad hoc) or permanent validity.”

The requirements for a substatutory act are mandatory for the other acts of the Seimas which are indicated in Paragraph 2 of Article 70 of the Constitution. These acts, following general basics of the legal acts theory, may not contradict the Constitution and laws, and, all the more, may alter neither the norms of laws nor their content. This is one of the most important rules of creating a legal system and its internal co-ordination.

Paragraph 2 of Article 5 of the Constitution provides that “the scope of powers shall be defined by the Constitution”. This means that the Seimas, while representing the nation, is independent as a law-maker as much as his powers are not limited by the Constitution and other laws. The prerogative of the Seimas to adopt, amend, supplement and recognise laws and substatutory acts as no longer valid is uncontested, however, the Seimas must conform to the procedure established by the Constitution and universally recognised principles of co-ordination of legal acts.

The Constitutional Court’s ruling of 8 November 1993 explains: “The process of legislation is the whole complex of legally significant acts necessary for the adoption of a law and performed in rigid sequence of logic and time. The following stages of the process of legislation are universally recognised: the realisation of the right to legislation, the consideration of a draft law, the adoption of a draft law, the promulgation and the enforcement of the enacted law. Only with the completion of one stage in consecutive order starts another. The aforesaid consecutive order of the process of legislation is in essence established in the Constitution of the Republic of Lithuania: the realisation of the right of legislative initiative—in Article 68, the adoption of laws—in Article 69, the promulgation and enforcement of laws—in Articles 70–72.” Thus, in regulating the process of legislation, it is attempted to seek both the concord between the links of the legal system and implementation of the lawfulness principle in the legislation of legal acts. The rules of the process of legislation are important in the context of the case at issue, too.

3. The petitioner questions the compliance of the Seimas Resolution “On Recognising the Seimas Resolution ‘On the Appointment of the Members of the Council of the National Radio and Television of Lithuania’ as No Longer Valid and the Formation of the Council of the National Radio and Television of Lithuania” with the Constitution and indicates that Article 69 of the Constitution stipulates that laws shall be enacted in the Seimas in accordance with the procedure established by law; Article 70 prescribes the procedure of enforcement of laws and other acts adopted by the Seimas, while Paragraph 2 of Article 7 establishes that only laws which are promulgated shall be valid. The petitioner contends that the Seimas adopted the impugned resolution following the Law on Amending Article 29 of the Law on the Provision of Information to the Public which, on the day of the adoption of the said resolution, was neither signed nor promulgated by the President of the Republic.

The Constitutional Court holds that the impugned resolution of the Seimas is, as to its legal nature and content, a substatutory legal act designated to implement the Law on Amending Article 29 of the Law on the Provision of Information to the Public. The said resolution of the Seimas, as indicated in its Article 3, went into effect on the day of its adoption, i.e. on 5 December 1996.

However, on the day of going into effect of the impugned resolution of the Seimas, the Law on Amending Article 29 of the Law on the Provision of Information to the Public passed on 5 December 1996 had not come into force yet. On that day Paragraph 3 of the Law on the Provision of Information to the Public (wording of 2 July 1996) was still in force by which other principles and procedure of formation of the Council of the national Radio and Television of Lithuania were established. Thus, the impugned resolution of the Seimas contradicted the valid law. On the other hand, this resolution of the Seimas was implementing a law which was not valid yet.

The statement of the representatives of the party concerned that the indication “the Seimas, following the Law on Amending Article 29 of the Law on the Provision of Information to the Public of 5 December 1996” contained in the preamble of the impugned resolution of the Seimas had no legal effects is not a grounded one.

The Constitutional Court notes that in this case the indication contained in the preamble points to the law in pursuance of which the said substatutory act was adopted and what provisions of the law it is designated to implement. It is possible to hold that the preamble corresponds to the content of the impugned resolution as well. Thus, by the impugned resolution of the Seimas was implementing provisions concerning the formation of the Council of the National Radio and Television of Lithuania of a law which was not valid yet. These provisions were in essence different from the law valid then.

The Constitutional Court emphasises that the opinion of the representatives of the party concerned expressed during the court hearing that the problem of the reciprocity between the law and the impugned resolution of the Seimas is merely that of “self-control of the Seimas”, or that this is merely a “technical error” is based on neither constitutional principles and norms nor the hierarchical reciprocal dependence and interaction of legal acts. One should also note that the representatives of the party concerned admitted in their explanations in the court hearing that the impugned resolution of the Seimas is a substatutory act of application of law and, as all acts of such a character, must be in compliance with laws.

The representatives of the party concerned are of the opinion that the 12 December 1996 Law on Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public legalised the impugned resolution of the Seimas.

The Constitutional Court notes that it was not allowed that the impugned resolution of the Seimas be legalised by adopting the aforesaid law as this law was signed by the President of the Republic and officially promulgated in the official gazette “Valstybės žinios” on 14 December 1996, i.e. after the impugned resolution of the Seimas had given rise to corresponding legal effects. In addition, the Constitution provides for neither opportunity nor ways of legalisation of a legal act which contradicts the laws.

In view of what has been stated above, it should be concluded that the impugned resolution of the Seimas actually meant violation of constitutional principles regarding legislation of legal acts, therefore, it contradicts Paragraph 2 of Article 7 and Paragraph 1 of Article 70 of the Constitution.

The request of the petitioner to assess the impugned resolution of the Seimas as contradicting Paragraph 1 of Article 69 is a groundless one. The impugned resolution of the Seimas is a substatutory legal act, meanwhile Paragraph 1 of Article 69 of the Constitution is designated to regulate the procedure of adoption of laws.

4. The group of members of the Seimas, the petitioner, points out in its petition to the Constitutional Court that the adoption of the impugned resolution of the Seimas meant dismissal from office the members of the Council of the National Radio and Television of Lithuania appointed by the Seimas. The petitioner is of the opinion that such a question is, as a rule, decided by a Seimas resolution concerning dismissal respective officials or chiefs. The petitioner also alleged that during the adoption of the impugned resolution of the Seimas the Law on the National Radio and Television of Lithuania did not provide for the legal grounds on the basis whereof one was allowed to dismiss from office the aforementioned members of the Council. Thus, in the opinion of the petitioner, the part of the impugned resolution regarding the dismissal from office of the members of the Council of the National Radio and Television of Lithuania contradicts Item 5 of Article 67 of the Constitution.

The Constitutional Court, when investigating the compliance of the impugned resolution of the Seimas with the Constitution from this standpoint, takes account of the fact that questions concerning dismissal from office of the members of the Council of the National Radio and Television of Lithuania are regulated in particular laws.

It should be noted that, as it was mentioned, the principles and procedure of formation of the Council of the National Radio and Television of Lithuania were established by Article 29 of the 2 July 1996 Law on the Provision of Information to the Public. Dismissal from office of Council members was regulated by the 8 October 1996 Law on the National Radio and Television of Lithuania. Paragraph 4 of Article 8 of the said law provided that Council members may not be dismissed before expiration of the term of appointment save a member of the Council:

(1) shall refuse to participate in the work of the Council;

(2) without valid excuse, does not participate in the work of the Council for more than 3 months;

(3) has committed a crime and is convicted by the court;

(4) has lost the citizenship of the Republic of Lithuania.”

Paragraph 5 of Article 8 of the said law provides that in cases when a vacancy occurs in the Council, the Chairman of the Council shall apply to the institution which has delegated the lacking member of the Council with a request to appoint a new member of the Council for work until the end of term of office of the Council.

In assessing the legal grounds formulated in the Law on the National Radio and Television of Lithuania on the grounds whereof the powers of the members of the Council of the National Radio and Television of Lithuania could be terminated, the following conclusions are to be made. First, Council members may be dismissed from office only on the grounds provided for by law. Second, the grounds for dismissal from office of Council members which are provided for by law are based on the criteria linked with the resolution of a Council member himself, or objective legal facts which may be deemed to be reasonable causes of dismissing a Council member from office.

Thus, the peculiarities of the legal status of a Council member (legal protection in case of dismissal from office) is based on the autonomy of the Council of the National Radio and Television of Lithuania which is consolidated in the Law on the Provision of Information to the Public, as well as the Law on the National Radio and Television of Lithuania.

After the independence of the Council of the National Radio and Television of Lithuania and its broad powers to direct the radio and television had been consolidated by law, a respective procedure of election of the Director General of the National Radio and Television of Lithuania was established. The Seimas repudiated the influence of state institutions in adopting this official and established in Paragraph 2 of Article 10 of the Law on the National Radio and Television of Lithuania that the Director General shall be elected for the term of 5 years under procedure of open competition and shall be approved in the Council providing no less than half of the members of the Council vote for his candidature, while in the case that such a number of votes is not reached, a new competition shall be organised. The laws also provide for a special procedure of the dismissal from office of the Director General prior to termination of his powers: he shall be dismissed provided no less than 8 members of the Council vote for this. The essence of these norms was not changed by the Law on the Law on Amending and Supplementing Articles 4, 8 and 10 of the Law on National Radio and Television of Lithuania passed by the Seimas on 5 December 1996 with the exception of the duration of the term of office of the Director General, i.e. at present he is elected for 3 years.

On 12 December 1996, the Seimas passed the Law on Amending and Supplementing Article 8 of the Law on the National Radio and Television of Lithuania by which, along with the grounds of the dismissal from office Council members provided for in the law before, a new legal ground was provided for which was formulated as follows: “<...> the legal grounds of appointing a member of the Council shall alter”. On the same day, i.e. 12 December, the Seimas also adopted the Law on Implementation of the Law on Amending Article 29 of the Law on the Provision of Information to the Public by which it was established that after the Law on Amending Article 29 of the Law on the Provision of Information to the Public passed on 5 December 1996 has come into force, the powers of the members of the Council of the National Radio and Television of Lithuania who had been appointed before by the President of the Republic and the Seimas shall cease. Thus, the aforementioned laws are both interdependent and conditioning each other: the first law provided for supplementary legal grounds for dismissal from office of the members of the Council of the National Radio and Television of Lithuania, while the second law established that the powers of the formerly appointed members of the Council shall cease.

The Constitutional Court emphasises the fact that the impugned resolution of the Seimas has given rise to legal effects—the Seimas resolution of 5 November 1996 by which the members of the Council of the National Radio and Television of Lithuania had been appointed was recognised as no longer valid. The Education, Science and Culture Committee of the Seimas was commissioned with the organising of the formation of a new Council of the National Radio and Television. The resolution came into force as from the day of its adoption, on 5 December 1996, i.e. when there existed no legal grounds to dismiss the members of the Council. Only on 12 December 1996 a law was passed wherein new grounds for dismissal were provided for, i.e., when “the legal grounds of appointing a member of the Council shall alter”. This legal norm went into effect by the established procedure on 14 December 1996. Thus, before going into effect of the new grounds of dismissal from office of Council members, by the impugned resolution of the Seimas the norms of the law which had not come into force were implemented.

Taking account of the constitutional principle that the constitution is an integral act, as well as the motives and arguments set forth, the conclusion should be made that the impugned resolution of the Seimas contradicts Paragraph 1 of Article 70 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 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 gives the following

ruling:

To recognise that the Resolution of the Seimas of the Republic of Lithuania “On Recognising the Seimas Resolution ‘On the Appointment of the Members of the Council of the National Radio and Television of Lithuania as No Longer Valid and the Formation of the Council of the National Radio and Television of Lithuania” of 5 December 1996 contradicts Paragraph 2 of Article 7 and Paragraph 1 of Article 70 of the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas     Kęstutis Lapinskas      Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Pranas Vytautas Rasimavičius     Juozas Žilys