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On the Programme of the Government of the Republic of Lithuania

Case No. 19/97

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of the Seimas Resolution “On the Programme of the Government of the Republic of Lithuania” of 10 December 1996 with the Constitution of the Republic of Lithuania

 

Vilnius, 10 January 1998

 

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, Teodora Staugaitienė, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė

Stasys Šedbaras, a state consultant for state and human rights questions, acting as the representative of the Government of the Republic of Lithuania, the petitioner

Andrius Kubilius, First Deputy Speaker of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, 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, on 30 December 1997, in its public hearing, considered case No. 19/97 subsequent to the petition submitted to the Court by the Government of the Republic of Lithuania, the petitioner, requesting an investigation into whether the Seimas Resolution “On the Programme of the Government of the Republic of Lithuania” of 10 December 1996 was in compliance with Paragraph 4 of Article 92 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 10 December 1996, the Seimas adopted the Resolution “On the Programme of the Government of the Republic of Lithuania” (Official Gazette Valstybės žinios, 1996, No. 120-2821).

The Government of the Republic of Lithuania, the petitioner, requests that the Constitutional Court investigate the compliance of the said resolution of the Seimas (hereinafter in the ruling referred to as the impugned resolution) with Paragraph 4 of Article 92 of the Constitution.

The petitioner grounds its request on the following arguments.

By means of the impugned resolution, the Seimas approved the programme of the Government. In the said programme the activities of the Government were provided for the whole period from 1997 to 2000, i.e. until the expiration of the powers of the Seimas but not those of the President of the Republic.

Paragraph 4 of Article 92 of the Constitution provides that the Government must return its powers to the President of the Republic after the Seimas election or upon electing the President of the Republic, while Article 101 of the Constitution wherein situations are established as to when the Government must resign does not contain any stipulation requiring that it must resign after an election of the President of the Republic. Article 84 of the Constitution establishes the right of the President as his prerogative to accept the powers returned by the Government upon the election of a new Seimas, as well as to accept resignations of the Government and submit to the Seimas the candidature of a new Prime Minister for consideration or a new composition of the Government for approval.

In the opinion of the petitioner, the Constitution does not establish as to when in reality the Government, upon the election of the President of the Republic, shall return its powers: upon announcement of the election results, or upon expiration of the term of office of prior elected President of the Republic, or upon the election of a new President of the Republic after he has sworn and taken office.

The petitioner has also indicated that certain Seimas members doubt whether the activity of the Government will be legal after the election of the President of the Republic, and whether due to this the impugned resolution is in compliance with Paragraph 4 of Article 92 of the Constitution.

II

In the court hearing S. Šedbaras, the representative of the petitioner, presented the following additional arguments.

In Article 101 of the Constitution all the bases when the Government must resign are enumerated. This list is final. It does not provide that the Government must resign after the President of the Republic is elected, therefore, the statement that the Government must resign in such a case is an extended interpretation of the Constitution. The analysis of the Constitution as an integral act allows stating that the Government’s resignation and the returning of its powers to the President of the Republic are not identical legal actions, and, thus, they cause different legal consequences.

The representative of the petitioner pointed out that the actions with legal consequences, which emerged at the beginning of the formation of the Government as well as when this process is finished, are made by the Seimas, and, actually, in essence, by a political party or a coalition of political parties constituting the Seimas majority. The President of the Republic may submit to the Seimas any candidature of the Prime Minister, however, if the majority of the Seimas does not approve this candidature, this proposal will not cause any legal consequences and the Government will not be started to be formed. Theoretically it is possible that ministers might be appointed only upon the will of the Prime Minister or the President of the Republic leaving the opinion of the Seimas majority out of account, however, practically this is impossible due to two reasons. First, the Prime Minister is appointed upon the approval of the Seimas majority. Thus, it is hardly probable that other members of the Government will be chosen without paying attention to the will of the Seimas majority as the Seimas majority may express non-confidence in the Prime Minister, or in the whole Government, or in individual ministers at any time (Article 101 of the Constitution). Second, the Government will be empowered to act only after the approval of its programme. The Seimas may force the Government to resign if it disapproves of the programme two times in succession. Therefore, the powers of the Government are directly related with those of the Seimas.

In the Constitution nothing is said about the destiny of the Government powers after the President of the Republic is elected and the powers of the Government are returned to him. In the opinion of the representative of the petitioner, it is possible to state that those who drafted the text of the Constitution, while formulating constitutional norms, differentiated between the Government’s continuing after returning its powers and resigning after an election of the Seimas, and that after returning its powers after an election of the President of the Republic.

The representative of the petitioner indicates that after a new Seimas is elected there is no subject who has empowered the Government to discharge the state authority any longer. The Constitution empowers the President of the Republic to charge the resigned Government with only temporal empowering, i.e. until a new Government starts to exercise its duties.

After the President of the Republic is elected, the Seimas which has empowered the Government retains its powers. Until either the Seimas, or the Government itself expresses a political will to terminate the powers of the Government, there are no grounds to state that they have expired. The nation, respecting a newly elected Head of the State, vests in him the right by the Constitution, and at the same time obligates the Seimas to learn about and to evaluate the position of the President of the Republic as regards the Government and to discuss anew the issue of the Government’s powers. However, the last word is left with the position of the majority of the Seimas, and there are no grounds to state that this procedure is bound with the resignation of the Government.

The representative of the petitioner has also indicated that the Constitution does not particularise as to when, after the President of the Republic is elected, the Government has to return its powers. Article 82 of the Constitution provides that the elected President of the Republic shall begin his duties on the day following the expiration of the term of office of the President of the Republic, after taking an oath. In the opinion of the representative of the petitioner, this means that only then the duty of the Government to return its powers arises.

III

In the court hearing A. Kubilius, the representative of the party concerned, has explained that the Constitution provides for the mechanism of a half-presidential state authority system. According to it, the President of the Republic elected in a direct election has to act together with the Government which must enjoy the confidence of the political majority of the Seimas.

The analysis of the Constitutional norms clearly allows stating that the activities of the Government depend only upon the confidence of the Seimas majority. The mechanism of the formation and accountability of the Government of the Republic of Lithuania functions in the same way as constitutional mechanisms of half-presidential power in other European states (for example, France, Poland, Austria, Finland, etc.).

The representative of the party concerned has also explained that in political science the parliamentary system of the formation of the Government and its accountability is described as an “accountable Government”, thereby emphasising that the political majority of the Parliament plays the most important role in the formation of the Government. The activity of the Government in a parliamentary system depends upon the support by the constant parliamentary majority, therefore, such a Government is a party Government. In the half-presidential constitutional system the President’s role in the formation of the Government depends upon his relations with the parliamentary majority. Due to the above reason the role of the President may be of three kinds. First, when the President is a leader of the political majority and may politically influence the formation of the Government, affecting the majority of the Parliament. Second, when there is no obvious political majority in the Parliament, and the President strives for the compromise of various political forces. In the third case, the majority of the Parliament does not support the President, and therefore, his influence upon the formation of the Government becomes the least.

The representative of the party concerned has indicated that the parliamentary majority of the Seimas usually changes only after an election of the Seimas. This majority has to approve the programme of the Government, i.e. the plan of its activities, which is a political document as well as the plan of activities of the Seimas majority for the whole period of the Seimas empowering. It is not specified in the Constitution for what period the programme of the Government is composed and approved. The Seimas was right in approving the programme of the Government in which the work was planned for the whole term of office of the Seimas, thus, the impugned resolution is in compliance with the Constitution.

The representative of the party concerned has also presented his arguments concerning the powers of the Government and the prerogatives of the President of the Republic after an election of the President of the Republic when he begins his duties. His arguments do not negate, in essence, those presented by the representative of the Government.

The Constitutional Court

holds that:

On 10 December 1996, the Seimas approved the programme of the Government presented by Prime Minister Gediminas Vagnorius wherein the activities of the Government was provided for during the period from 1997 to 2000, i.e. during the whole period of powers of the present Seimas. Until the expiration of this period, an election of the President of the Republic took place. Under the Constitution, the Government must return its powers, therefore, the petitioner requests that the Constitutional Court decide whether the impugned resolution of the Seimas on the approval of the programme of the Government is in compliance with the Constitution.

In deciding this question, the Constitutional Court will consider various aspects of reciprocity between branches of state power, as well as the significance of the approval of the programme of the Government.

1. Article 5 of the Constitution provides: “In Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary.” By this norm the content of which is particularised in other articles of the Constitution, the principle of the separation of powers of the state is consolidated. This is the fundamental principle of the organisation and of a democratic state under the rule of law and its functioning. As it was noted in the Constitutional Court’s ruling of 26 October 1995, this principle means that the legislative, executive and judicial branches of power must be separated, sufficiently independent, but, at the same time, they must be balanced. The competence answering their purpose is conceded to every state institution, the concrete content of which depends on the place of that institution among other state institutions and on the relation of its authorisations with those of other institutions.

In the system of state authority, every branch of state power occupies a certain place and accomplishes functions characteristic of it only. The Seimas which is composed of representatives of the nation—Seimas members—passes laws, supervises the Government activity, approves the budget of the state and supervises its maintenance, as well as decides other issues provided for in the Constitution. The President of the Republic—the Head of the State—represents the state and accomplishes everything which he is entrusted to perform by the Constitution and laws, while the Government is an executive-administering institution of the country, it implements laws and other legal acts and administers the affairs of the country. Courts administer justice.

Paragraph 2 of Article 5 of the Constitution provides that the scope of powers shall be defined by the Constitution. When general tasks and functions of the state are being accomplished, the activities of state institutions are based on their co-operation, therefore, their interrelations should be defined as inter-functional partnership. One of the ways to ensure co-operation between state institutions is the principle of the responsibility of the Government to the Parliament, which is consolidated in the constitutions of most European states.

In comparative constitutional law various forms of state governance are known. In most states of today’s world the republic is consolidated as a form of governance. As a rule, republics are categorised as parliamentary, presidential, and thus termed mixed (half-presidential). Presidential republics are, for example, the USA, as well as some states in South America and Africa. In the legal systems of European states the model of parliamentary governance of the state has become firmly established. The variety of forms of state governance has been determined by national, historical, political and cultural traditions.

Depending on the form of governance and the role of the Parliament in forming the Government, two fundamental models of Government formation procedures—parliamentary and non-parliamentary—are distinguished. The parliamentary model of Government formation is characteristic of the fact that the Government is formed taking account of the parliamentary election results. It is for this fact that the Head of the State appoints that person as Head of the Government the candidature of whom is approved by the Parliament. In such a case the activity of the Government is based on the confidence of the Parliament and it is responsible to the Parliament for its policy implemented. The non-parliamentary formation of the Government is characteristic of the fact that the executive power does not need confidence of the Parliament as the Head of the State forms it on his own. However, even in the event of non-parliamentary formation of the Government, the President, as a rule, appoints the most important officials of this institution upon the consent of the Parliament.

Under the competence of state institutions as established by the Constitution of the Republic of Lithuania, the governance model of the State of Lithuania should be categorised as the parliamentary republic governance form. Alongside, one should note that the governance form of our state is also characteristic of certain peculiarities of thus termed mixed (half-presidential) form of governance. This is reflected in the powers of the Seimas, those of the Head of the State—the President of the Republic, and those of the Government, as well as in the legal arrangement of their reciprocal interaction. In the Lithuanian constitutional system the principle of the responsibility of the Government to the Seimas has been established which determines a respective way of Government formation.

In the Lithuanian system of institutions of the executive power, the Government implementing state administration is exceptionally important. The Government is a joint institution of general competence. It is composed of the Prime Minister and ministers. Article 94 of the Constitution provides that the Government shall: administer the affairs of the country, protect the inviolability of the territory of the country; ensure state security and public order; implement laws and resolutions of the Seimas concerning the implementation of laws, as well as decrees of the President; co-ordinate the activities of the ministries and other governmental institutions; prepare the draft budget of the State and submit it to the Seimas, execute the state budget and report of the fulfilment of the budget to the Seimas; draft bills and submit them to the Seimas for consideration; establish diplomatic relations and maintain relations with foreign countries and international organisations; discharge other duties prescribed to the Government by the Constitution and other laws. The scope of powers of the Government are defined by the Constitution. The Government are jointly responsible to the Seimas for the general activities of the Government. In guiding the spheres of their commissioned management, the ministers are responsible to the Seimas, as well as the President of the Republic, and are under direct subordination of the Prime Minister.

2. A great number of factors influence the functioning of political system of a democratic society, the programmes of various parties and political organisations being among them, wherein major tasks and directions of activities of various entities of political process are set out. Programme provisions both promote formation of political will and rally supporters for the purpose of achievement of one or another desired aim. These provisions are a significant element of election campaigns. The election programmes of political parties and political organisations, those of candidates for the President of the Republic, Seimas members, members of self-government councils indicate as to what one is going to attempt to perform in a certain sphere of activity. However, in each case this is a mere exposition of political or professional determination of a person or group of persons to act in one or another way but never a legal document of the state. A political party or organisation the representative of which has been elected or appointed to public service implements its programme provisions to the extent that is possible under the powers given to it by law. For instance, the President of the Republic implements the aims of his election programme by submitting respective draft laws, returning to the Seimas the adopted laws for repeated consideration, appealing to the Constitutional Court as to the compliance of governmental acts with the Constitution and the laws, making reports about the situation in Lithuania and the domestic and foreign policies, etc.

Seimas members and their groups implement their programme provisions by submitting to the Seimas draft laws and other draft legal acts, approving them during deliberation, voting for bills or acting in other ways as provided for in the Constitution and the Statute of the Seimas.

The Seimas, by approving the programme of the Government, confers the Government the powers to act. The constitutional norms regulating the activity of the Government and consolidating the principle of Government’s responsibility to the Seimas are thus implemented: it has been established in the constitutional structure of the branches of power that only the Government having the confidence of the Seimas may accomplish its powers. The legal form of conferring such powers is voting in the Seimas for approval of the programme of the Government.

The basis of the programme of the Government is programmes of the political parties which have won the election, however, the provisions of these programmes acquire a legal meaning only through the programme of the Government by obligating both the Government and the majority of the Seimas supporting it to act respectively. Such a recognition of the legal meaning of the programme of the Government is a characteristic peculiarity of parliamentary democracy. It is consolidated in the norms of Item 7 of Article 67 and Paragraph 5 of Article 92 of the Constitution.

It is due to this that the President of the Republic has to appoint the Prime Minister who is supported by the Seimas majority and to confirm such a Government the programme of which can be approved by the Seimas by the majority of votes of its members taking part in the sittings. Otherwise, the institution of the executive power ensuring the functioning of the state would never be formed. Attempting to acquire the confidence of the Seimas, in foreseeing the trends of its activity for a certain time period, the Government will have to take into consideration a possible approval or non-approval of the Seimas. By expressing its confidence in the programme of the Government, the Seimas takes an obligation to supervise as to how the Government will be acting in implementing its programme. The programme of the Government is the basis of political-legal responsibility of the Government to the Seimas as they are jointly responsible to the Seimas for their common activities. The Seimas which has conferred powers to the Government to act may express non-confidence in the Government or the Prime Minister. The consequence of the non-confidence expression is resignation of the Government.

Thus, the programme of the Government should be deemed to be a legal document wherein the main landmarks of state activities for certain time period are set forth. It should be published in the official gazette “Valstybės žinios”. Furthermore, its significance as a legal form determining the actions of the institutions forming the Government and the ensuring of the reciprocity between the Government and these institutions are of no less importance.

3.1. The Government—a joint institution of the executive power—is formed by the Seimas and the President of the Republic, however, their role and tasks are different. The President of the Republic participates in this process as the Head of the State accomplishing the functions provided for in the Constitution, while the Seimas to which the Government is responsible acts as representatives of the nation.

Conferring powers to the Government to act and control over its activities are an important sphere of Seimas competence. Article 67 of the Constitution provides for the following Seimas prerogatives: the Seimas shall: approve or reject the candidature of the Prime Minister proposed by the President of the Republic; consider the programme of the Government submitted by the Prime Minister, and decide whether to approve it or not; supervise the activities of the Government; and it may express non-confidence in the Prime Minister or individual ministers, etc. Under Paragraph 1 of Article 96 of the Constitution, the Government shall be jointly responsible to the Seimas for the general activities of the Government. Paragraph 1 of Article 5 of the Law on the Government of the Republic of Lithuania provides that the Government shall present an account of implementation of the programme of the Government to the Seimas at least once a year.

The relations between the President of the Republic and the Government are regulated by the norms of the Constitution which provide that the President of the Republic shall appoint, upon approval of the Seimas, the Prime Minister, charge him or her to form the Government, and approve its composition. He shall: remove, upon approval of the Seimas, the Prime Minister from office; accept the powers returned by the Government upon the election of a new Seimas, and charge it to continue exercising its functions until a new Government is formed; accept resignations of the Government and, as necessary, charge it to continue exercising its functions or charge one of the Ministers to exercise the functions of the Prime Minister until a new Government is formed. The President of the Republic shall submit to the Seimas, upon the resignation of the Government or after it returns its powers and no later than within 15 days, the candidature of a new Prime Minister for consideration, etc.

In the constitutional practice of European states where the President is elected directly, it frequently occurs that political views of the President and the parliamentary majority do not coincide or the president is not supported by the parliamentary majority. He, as the Head of the State, is concerned to form a Government that would be supported by the majority, therefore, he does not ignore the parliamentary majority, even though he has the right of choice. According to the constitutional tradition of Europe, the President appoints a person as the Head of the Government who is supported by the parliamentary majority. The said constitutional practice is observed in Lithuania as well.

The analysis of the authorisations of the President of the Republic or the Seimas in the sphere of Government formation allows asserting that the main task of the activities of the President of the Republic in this process is to guarantee the interaction between the institutions of power. His actions in Government formation should be decided by the responsibility to form an efficient Government, i.e. having the confidence of the Seimas.

Therefore, referring to the parliamentary democracy principles that have been established in the Constitution, it should be assumed that the President of the Republic cannot freely choose candidatures of the Prime Minister or ministers, for in all cases the appointment of the said officials depends on either the Seimas confidence or distrust in them. The fact that the President of the Republic, as a part of the executive power, has some political possibilities of influencing the formation of the personal structure of the Government should not be ignored, either.

3.2 It has been stated in the Government petition that Paragraph 4 of Article 92 of the Constitution does not prescribe as to when in reality the Government must return its powers upon electing the President of the Republic: upon announcement of election results, upon the expiration of the term of office of prior elected President of the Republic and after the elected President of the Republic has sworn and taken office.

Analysing the issue of the returning of powers of the Government, the Constitutional Court notes that the norms of Paragraph 4 of Article 92 of the Constitution may not be interpreted aside from other constitutional norms. The constitutional norms regulating different aspects of the formation of the Government as well as the interrelations of the Seimas, the President of the Republic and the Government have been established in more than one chapter or part of the Constitution. The Constitution is an integral act, therefore, in this particular case the priority should be given to a systemic interpretation. While interpreting the content of the norm of Paragraph 4 of Article 92 of the Constitution, the purpose of adoption of the said norm should be taken into consideration.

Article 82 of the Constitution stipulates: “The elected President of the Republic shall begin his duties on the day following the expiration of the term of office of the President of the Republic, after, in Vilnius and in the presence of the representatives of the Nation—members of the Seimas, taking an oath to the Nation, swearing to be loyal to the Republic of Lithuania and the Constitution, to conscientiously fulfil the duties of President of the Republic, and to be equally just to all.“

In the countries where the President is elected on the basis of universal suffrage, there is, as a rule, a certain time period between the announcement of the election results and the beginning of exercising of his duties. During the said period the President whose term of office is expiring proceeds with his duties, the Parliament as well as the Government having the reliance of the latter, and in the forming of which the Head of the State had participated, discharge their functions. Such a sufficiently long pause is understandable, because the President who is leaving his office needs some time to prepare to transfer the duties of the Head of the State, and a new one—to accept such duties.

The aforementioned time period has been established, too, in Article 80 of the Constitution of the Republic of Lithuania. During this time period the President of the Republic whose term of office is expiring shall be the Head of the State. All powers vested in the Head of the State belong to him according to the Constitution. He is the only person able to implement them. From the announcement of the final results of the election until taking an oath, the newly elected President of the Republic has no powers of the Head of the State as yet. The Government, in formation of which the President of the Republic whose term of office is expiring had participated, proceeds with the implementation of its powers.

The powers of the former President of the Republic cease and his relation with the Government in the formation of which he had also participated is terminated after the new President of the Republic takes an oath. The Constitutional Court, referring to the analysis of constitutional norms, has drawn the conclusion that the Government must return its powers to the newly elected President of the Republic after he takes an oath and takes office.

Alongside, the Constitutional Court notes that Article 6 of the Republic of Lithuania’s Law on the Office of President of 24 January 1993 provides: “The day after the President of the Republic takes oath, the Government of the Republic of Lithuania shall return its powers to the President”, while Paragraph 1 of Article 8 of the 19 May 1994 Law on the Government of the Republic of Lithuania provides: “Upon the election of a new President of the Republic, the Government shall within 5 days return its powers.” However, interpreting the norms of Articles 80 and 82 and Paragraph 4 of Article 92 of the Constitution, the Constitutional Court draws the conclusion that the powers of the Government should be returned to the President of the Republic on the same day when he begins to exercise his duties. This interpretation is based on the fact that the Constitution does not provide for any other time period.

3.3. After comparing the notions that are used in the norms of Article 101 and Paragraph 4 of Article 92 of the Constitution “returning the powers of the Government” and “resignation of the Government”, the petitioner began to doubt whether, upon the election of the President of the Republic, the President of the Republic is empowered to submit to the Seimas a new candidature of the Prime Minister for consideration and a new Government for approval.

The basis for the resignation of the Government is established in Paragraph 3 of Article 101 of the Constitution. It is prescribed therein that the Government must resign in the following cases:

1) if the Seimas disapproves two times in succession of the programme of the newly-formed Government;

2) if the majority of all the Seimas deputies express a lack of confidence in the Government or in the Prime Minister in a secret ballot vote;

3) if the Prime Minister resigns or dies;

4) after an election of the Seimas, when a new Government is formed.

In addition, the Government must resign when more than half of the Ministers are changed and it is not re-invested with authority by the Seimas.

The Constitutional Court notes that this list of the bases for the resignation of the Government is final.

Apparently, one of the main reasons for the resignation of the Government is the loss or non-acquisition of confidence in the Government by the Seimas. The Constitution, however, provides for various forms of non-confidence expression: first, the Seimas expresses non-confidence directly; second, it expresses non-confidence by disapproving two times in succession of the programme of the newly formed Government; third, the Government must repeatedly, i.e. anew, be re-invested with authority by the Seimas. Finally, another two cases presume that the Government loses the confidence of the Seimas, i.e. it loses its powers to act, when: first, the Prime Minister resigns or dies; or second, after an election of the Seimas.

Thus, the resignation of the Government means the end of its activities. The procedure for forming a new Government is started after its resignation, or prior to it as provided by Item 4 of Paragraph 3 of Article 101 of the Constitution.

In addition to the notion of “the resignation of the Government”, the notion of “the returning of the powers of the Government” is also used in the Constitution. As it was mentioned above, the grounds for the resignation of the Government are exhaustively listed in Article 101 of the Constitution. Their essence is loss or non-acquisition of confidence in the Government by the Seimas. The returning of the powers of the Government is provided for in two cases: first, after an election of the Seimas; second, upon electing the President of the Republic (Paragraph 4 of Article 92 of the Constitution).

Thus, the conclusion may be drawn that the expiration of the powers of one of the subjects who has participated in forming the Government entails the necessity of returning the powers of the Government. Constitutional norms, however, give a different meaning to the change of the aforesaid subjects and their influence on the formation of the Government. For instance, after an election of the Seimas the Government must not only return its powers but also resign (Item 4 of Paragraph 3 of Article 101 of the Constitution). Thus, in this case the returning of the powers is the first step towards compulsory resignation of the Government imperatively prescribed by the Constitution. It is evident that, after an election of the Seimas, the subject from which the Government had received confidence and powers to act is clearly missing, therefore, the Government must resign.

Upon the election of a new Seimas, the President of the Republic, following Item 6 of Article 84 of the Constitution, accepts the powers returned by the Government and charges it to continue exercising its functions until a new Government is formed. The President of the Republic submits to the Seimas the candidature of a new Prime Minister for consideration not later than within 15 days. This starts the formation of a new Government. Upon the formation of a new Government, the Government that had returned its powers resigns (Item 4 of Paragraph 3 of Article 101 of the Constitution).

After an election of the President of the Republic, the Government also returns its powers to a new President. However, the Constitution does not prescribe that the Government must resign then. This is due to the fact that after the change of the head of the state, the confidence of the Seimas in the Government remains intact. Therefore, in case of the returning of the powers after the election of a new President of the Republic, the same Government must be charged to continue exercising its functions by the Head of the State. In case of resignation of the Government, the President of the Republic may charge another member of the Government to exercise functions of the Prime Minister.

Thus, the Constitutional Court emphasises that there are no grounds to treat the notions “the resignation of the Government” and “the returning of the powers of the Government” as identical. They relate to different legal situations. This also determines different legal consequences.

Item 8 of Article 84 of the Constitution provides that the President of the Republic shall submit to the Seimas, upon the resignation of the Government or after it returns its powers and no later than within 15 days, the candidature of a new Prime Minister for consideration. The Constitutional Court notes that the essence of this norm is the prerogative of the President of the Republic to submit to the Seimas the candidature of a new Prime Minister for consideration in due time. The notions of “resignation” and “returning of the powers” used herein should be interpreted only with respect to the aforesaid circumstances.

It should be noted that constitutional regulation of the returning of the powers of the Government after the election of the President of the Republic of Lithuania reminds us, at least partly, of the constitutional tradition of the Third French Republic, when the Government there would resign after a parliamentary election as well as after a presidential election. The resignation after a presidential election was called the “resignation of courtesy” (démission de courtoise). After the “resignation of courtesy”, the Government had to be approved anew. This procedure is said to be meaningful due to the relation of the Government with the Head of the State, and that it reflects certain tendencies of the development of governance model.

Although the Constitution of the Republic of Lithuania treats the returning of the powers in a somewhat different way, it undoubtedly expresses respect to the institution of the Head of the State and recognises the importance of the relations between the President of the Republic and the Government. The analysis of the content of Articles 84, 92, and 101 allows stating that such returning of the powers does not presuppose the resignation of the Government. Otherwise the Constitution would directly establish that after the election of a new President of the Republic, the Government shall return its powers and resign. Having returned its powers, the Government remains legitimate.

The returning of the powers procedure, however, is not merely an expression of inter-institutional courtesy: it provides the President of the Republic with the opportunity for checking whether the Seimas remains to be confident in the Government. The President of the Republic, following Article 92 and Item 8 of Article 84 of the Constitution, as well as taking account of the tradition of parliamentary democracy, under the procedure established by Item 8 of Article 84 of the Constitution, submits to the Seimas the candidature of the Prime Minister of the Government that has returned its powers for consideration. Upon the consent of the Seimas to the candidature of the Prime Minister, upon the appointment of the Prime Minister by the President of the Republic, and upon the approval of the composition of the Government submitted, the Government is empowered anew to exercise its functions, unless more than half of the ministers have been changed.

In case the Seimas does not approve the candidature of the Prime Minister, the Government must resign (Item 2 of Paragraph 3 of Article 101 of the Constitution). This would constitute constitutional grounds for the procedure of formation of a new Government.

3.4. According to the Constitution, the Government continuously implements the executive power. The activities of the Government are based on the confidence of the Seimas which has approved the programme of the Government.

The programme of the Government is compulsory to the respective Government for the whole period of its powers. Upon the request of the powers to act, a new Government submits its programme to the Seimas for consideration. The Seimas’ approval of the programme of the Government expresses its confidence in the Government in principle for the period until the powers of the Seimas expire. Naturally, it does not mean that after the Government has resigned, the same programme will be approved.

Taking account of the arguments set forth in this ruling, the conclusion should be drawn that the Seimas Resolution “On the Programme of the Government of the Republic of Lithuania” of 10 December 1996 is in compliance with Paragraph 4 of Article 92 of the Constitution of the Republic of Lithuania.

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 Seimas Resolution “On the Programme of the Government of the Republic of Lithuania” of 10 December 1996 is in compliance with 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      Teodora Staugaitienė     Juozas Žilys