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On the re-empowerment of the Government

Case No. 13/98

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of the Resolution of the Government of the Republic of Lithuania (No. 647) “On the Consent for Carrying Out a Public Purchase by Way of a Closed-Type Competitive Tender and the Consent for Allocation of Funds” of 1 June 1998 with the Constitution of the Republic of Lithuania and Article 8 of the Law on the Government of the Republic of Lithuania

 

Vilnius, 20 April 1999

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Seimas members Česlovas Juršėnas and Vytenis Povilas Andriukaitis, acting as the representatives of a group of Seimas members, the petitioner

Ramutė Ruškytė, Head of the Division for Legal Affairs and Law and Order at the Office of the Government, acting as the representative of the Government, 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 March 1999, in its public hearing, considered case No. 13/98 subsequent to the petition submitted to the Court by a group of Seimas members, the petitioner, requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 647) “On the Consent for Carrying Out a Public Purchase by Way of a Closed-Type Competitive Tender and the Consent for Allocation of Funds” of 1 June 1998 was in compliance with the Constitution of the Republic of Lithuania and Article 8 of the Law on the Government of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 1 June 1998, the Government adopted the Resolution (No. 647) “On the Consent for Carrying Out a Public Purchase by Way of a Closed-Type Competitive Tender and the Consent for Allocation of Funds” (Official Gazette Valstybės žinios, 1998, No. 52-1427). A group of Seimas members, the petitioner, requests an investigation into whether the said resolution is in compliance with Paragraph 2 of Article 101 of the Constitution and Paragraph 4 of Article 8 of the Law on the Government.

II

The request of the petitioner is based on the following arguments.

On 27 November 1996, after the 1996 Seimas election, Algirdas Brazauskas, the President of the Republic, submitted to the Seimas the candidature of Gediminas Vagnorius for the office of the Prime Minister for consideration. On 28 November 1996, the Seimas approved of this candidature. On the same day, the President of the Republic appointed G. Vagnorius Prime Minister and commissioned him to form the Government. On 4 December 1996, the President of the Republic confirmed the Government where there were 17 ministers.

On 10 December 1996, the Seimas approved of the Programme of the Government submitted by the Prime Minster. On the same day, the members of the Government were sworn in at the Seimas.

After the 1997 election of the President of the Republic, the Government headed by G. Vagnorius returned its powers to the President of the Republic Valdas Adamkus. In the opinion of the petitioner, on 10 March 1998, the Seimas anew approved of the candidature of G. Vagnorius submitted by the President of the Republic, therefore, this Government and that implementing its programme approved by the Seimas on 10 December 1996 should be deemed to be the same. According to the petitioner, however, in 1996–1998, not less than 9 ministers, i.e. more than half of all the ministers, were changed in the Government. Taking account of this, the petitioner draws the conclusion that the Government, as provided for by Paragraph 2 of Article 101 of the Constitution and Paragraph 4 of Article 8 of the Law on the Government, had to be re-invested with authority by the Seimas. For this purpose, a new programme of the Government should have been submitted to the Seimas for approval. By the Statute of the Seimas, the Government should have done this within 7 days, however, not any corresponding document has been registered at the secretariat of the Seimas. Thus, the petitioner believes that, as from 31 May 1998, the present Government should to be deemed to be lacking the authorisation by the Seimas, and its acts should be regarded as unlawful.

III

In the course of the preparation of the case for the judicial hearing, the representative of the party concerned R. Ruškytė noted that, after the 1997 election of the President of the Republic, the Government had been approved in its all composition, all necessary procedures were performed which meant that the Government was “anew empowered to exercise its functions” as pointed out in Item 3.3 of the statement part of the Constitutional Court’s Ruling “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” of 10 January 1998. In its Decision “On the Construction of the 10 January 1998 Ruling of the Constitutional Court of the Republic of Lithuania” of 17 December 1998, the Constitutional Court held that the statement “the Government is empowered anew to exercise its functions” means that a new period of the powers of the Government begins, therefore, the change of ministers in the Government should be calculated from the beginning of this period.

The representative of the party concerned also explained that after the President of the Republic approved the composition of the Government submitted by the Prime Minister, until the date of 31 May 1998 as indicated by the petitioner, only the minister of the interior had been changed. Thus, until 31 May 1998 the Government did not have to be re-invested with authority by the Seimas and all the acts adopted by the Government, including that impugned by the petitioner, are lawful and are in compliance with the Constitution and the Law on the Government.

IV

During the judicial hearing the representative of the petitioner Č. Juršėnas explained the position of the petitioner as for the wording of Paragraph 2 of Article 101 of the Constitution by which “the Government must be re-invested with authority by the Seimas”. Paragraph 2 of Article 101 of the Constitution must be linked with Paragraph 5 of Article 92 of the Constitution which prescribes: “A new Government shall be empowered to act after the Seimas approves its programme by majority vote of the Seimas members participating in the sitting.” In the opinion of the petitioner, the programme of the Government must be submitted to the Seimas not only after an election of the Seimas, but also after an election of the President of the Republic, as the legal form of the empowerment is voting in the Seimas by approving of the programme of the Government.

The representative of the petitioner also expressed his opinion as to how changes of ministers should be calculated. Individual articles of the Constitution mention particular ministers but not ministers in general. Every change of the area headed by a minister, even though the personality of the minister remains the same, means that a minister is changed in the Government. Therefore, the petitioner draws the conclusion that, until 1 May 1998, when the Law on the Government in its new wording came into force, more than half of the ministers had been changed in the Government.

In the judicial hearing the representative of the petitioner V. P. Andriukaitis explained that changes of ministers in the Government must be linked with the administration area of the ministry. Establishing, abolishing or reorganising ministries, the Seimas, alongside, forms a new area of administration which should be headed by a minister. One ought to follow this criterion in calculating changes of ministers. In case when a member of the Government, no matter whether he was previously appointed or a new one, performs new functions, it should be presumed that this is a new function of the minister and the minister himself is a new one.

V

At the judicial hearing, the representative of the party concerned, impugning the opinion of the petitioner, according to which, after an election of the President of the Republic, the programme of the Government must be confirmed anew, explained that the Seimas, by approving of the programme of the Government, expresses its confidence in the Government for the whole term of its (i.e. the Seimas) powers. Therefore, until the present Seimas performs its functions the programme submitted by the Prime Minister for the Seimas as well as the 10 December 1996 Seimas Resolution by which the Programme of the Government was approved of remains in force.

The representative of the party concerned also noted that the President of the Republic who was elected during the 1997 election, before confirming a new composition of the Government, dismissed all the ministers who were temporarily performing their functions. It is evident that in such a case 7 ministers from the list of the ministers presented by the petitioner did not have to be re-invested with authority by the Seimas. In addition, the petitioner also entered the ministers of abolished ministries on the list even though those ministers were merely provisionally performing their functions, too. The representative of the party concerned is of the opinion that only in cases when another minister replaces a minister who is empowered to act is it possible to recognise that the minister was changed.

The Constitutional Court

holds that:

1. On 1 June 1998, the Government adopted the Resolution (No. 647) “On the Consent for Carrying Out a Public Purchase by Way of a Closed-Type Competitive Tender and the Consent for Allocation of Funds”. Requesting an investigation into whether this resolution is in compliance with Paragraph 2 of Article 101 of the Constitution and Paragraph 4 of Article 8 of the Law on the Government, the petitioner maintains that, as from 10 December 1996 until 31 May 1998, not less than 9 ministers were changed in the Government. The petitioner pointed out various cases of changing the composition of the Government: replacement of one minister by another; dismissal of a minister and his appointment as a minister of a newly established ministry; dismissal of a minister due to abolition of the ministry; changing the duties of a minister by appointing him to head a reorganised ministry (e.g., one established instead of two former ministries). In the opinion of the petitioner, all these cases must be held “change of ministers” under the meaning of Paragraph 2 of Article 101 of the Constitution. Therefore, after more than half of the members of the Government headed by G. Vagnorius had changed, one should hold that, as from 31 May 1998, the Government no longer enjoys the empowerment by the Seimas.

The petitioner does not impugn the government resolution as for its content, scope of regulation or the form, therefore, the Constitutional Court will investigate the compliance of the said resolution with the Constitution and the Law on the Government from the aspect indicated by the petitioner, i.e. whether the Government, adopting it, was enjoying the empowerment by the Seimas.

2. During the time period pointed out by the petitioner the laws differently regulated as to what might be considered the changing of ministers. Under the previous, i.e. 19 May 1994 wording of the Law on the Government, its Article 9 prescribed: “When more than half of the Ministers, including those who have resigned and those who have been removed from office, as well as the Ministers of newly founded or reorganised Ministries, are changed, the Government must be re-invested with authority by the Seimas <...>.” Paragraph 4 of Article 8 of the new wording Law on the Government of 1 May 1998 provides that when more than half of the ministers are changed, the Government must be re-invested with the authority by the Seimas. This norm of the law repeats the text of Paragraph 2 of Article 101 of the Constitution, however, as to what is meant by the changing of ministers is not disclosed.

3. Paragraph 2 of Article 101 of the Constitution provides: “When more than half of the Ministers are changed, the Government must be re-invested with authority by the Seimas. Otherwise, the Government must resign.”

Article 5 of the Constitution prescribes that in Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary. This provision of the Constitution provides grounds for the separation and balance of the powers of the State. The Government is a joint State governance institution of general competence. By Article 91 of the Constitution, the Government of the Republic of Lithuania shall consist of the Prime Minister and Ministers. The Prime Minister shall, with the approval of the Seimas, be appointed or dismissed by the President of the Republic (Paragraph 1 of Article 92 of the Constitution). Under Paragraph 3 of Article 92 of the Constitution, the Prime Minister, within 15 days of being appointed, shall present the Government which he or she has formed and which has been approved by the President of the Republic to the Seimas and shall submit the programme of its activities to the Seimas for consideration.

The personal composition of the Government is formed by the Prime Minister and the President of the Republic. However, the mere confirmation of the composition of the Government is not enough so that the Government might begin to act. The Government must have the confidence of the Seimas. Therefore, Paragraph 5 of Article 92 of the Constitution provides that “a new Government shall be empowered to act after the Seimas approves of its programme by majority vote of the Seimas members participating in the sitting”. The approval of the programme of the Government means that the Government is empowered to implement its programme provisions.

The Seimas not only empowers the Government to act but also, conforming to Item 9 of Article 67 of the Constitution, supervises the activities of the Government. For instance, under Paragraph 1 of Article 101 of the Constitution, upon the request of the Seimas, the Government or individual Ministers must give an account of their activities to the Seimas. The Seimas also may by the majority of all the Seimas members express a lack of confidence in the Government in a secret ballot vote (Item 2 of Paragraph 3 of Article 101 of the Constitution). The Constitution also provides for other ways as to how the Seimas might carry out the supervision of the Government.

The composition of the Government may change due to various reasons. Under Paragraph 2 of Article 101 of the Constitution, when more than half of the Ministers are changed, the Government must be re-invested with authority by the Seimas, otherwise, the Government must resign. The institution of re-investment of the Government with new authority is one of the forms of the supervision of the Government by the parliament. Applying it, the Seimas can check whether, after the changing of more than half of the ministers, the programme of the Government which was approved of by the Seimas is still carried out. The procedure for the new empowerment is regulated by the Statute of the Seimas.

Such constitutional regulation of the powers of institutions of authority and their interrelations in the course of the formation of the Government and its re-investment with authority reflects the principle of the separation and balance of branches of state power which is established in the Constitution.

4. By establishing as to what should be considered a change of ministers under Paragraph 2 of Article 101 of the Constitution, the circumstance is of essential importance that the Government is a jointly acting institution which is jointly accountable for its joint activities to the Seimas. Therefore, by the Constitution the beginning of the powers of the Government is linked with the approval by the Seimas of its programme but not the personal composition of the Government. Considering whether to approve of the programme of the Government, the Seimas does not discuss the issues of the personal composition of the Government as appointment of ministers is the prerogative of the Prime Minister and the President of the Republic. Voting for the approval of the programme of the Government, the Seimas expresses its consent that the Government administer the affairs of this country in the manner as provided for by the programme. Until the consent of the Seimas to the programme of the Government, it is not empowered to act.

As mentioned, the Government is comprised of the Prime Minister and ministers. A minister heads the respective ministry, he is accountable to the Seimas and the President of the Republic and directly subordinate to the Prime Minister. Even though the ministers head ministries and are responsible for individual areas of administration, however, the common affairs of State administration are resolved by the Government at its sittings by issuing directives which must be passed by a majority vote of all members of the Government (Paragraph 1 of Article 95 of the Constitution).

On the grounds of a systemic interpretation of the said provisions of the Constitution, it is possible to draw a conclusion that by approval of the programme of the Government by which the Government is empowered to act, the principle of the confidence in the Government in corpore by the Seimas is established. Changing the area administered by a minister is important from the aspect of the responsibility of the minister. From the standpoint of the interrelations of the Government in corpore and the Seimas, not the change of individual ministers in the Government (in cases when a member of that Government is appointed to head another ministry etc.) is important, but rather the fact whether due to such changes more than half of the new ministers appear in the Government. Then the Seimas has a constitutional basis to check whether the programme of the Government is still carried out which the Seimas previously approved of. Therefore, in the opinion of the Constitutional Court, the provision of Paragraph 2 of Article 101 of the Constitution relating to the change of ministers should be understood that a new person who is not a member of that Government is appointed either instead of a dismissed head of a ministry or as the head of a newly established ministry.

In deciding whether more than half of the ministers were changed in the Government, it is also very important to establish as to what is the number of the ministers from which their changing must be calculated. In such a case one has to take account of the fact that under Paragraph 1 of Article 98 of the Constitution ministers shall head their respective ministries. In view of this, the conclusion should be drawn that the number of ministers is determined by the number of ministries which is established by the Law on the Government.

5. The petitioner, impugning the said government resolution in the case at issue, pointed out the change of ministers in the Government during the term as from 10 December 1996 till 31 May 1998.

Assessing the changing of ministers during the aforesaid term, one has to note that this term is not continuous. It must be analysed by taking account of the fact that in 1997 the election of the President of the Republic took place after which the Government returned its powers to the President of the Republic. Therefore, one must make a distinction between two phases of this term: the first one includes the changing of ministers until the new empowerment of the Government to act after an election of the President of the Republic, while the second one includes those after the Government was anew empowered to act.

5.1. The Constitutional Court held in Item 3.3 of the statement part of its Ruling “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” of 10 January 1998 that the returning of powers procedure provides the President of the Republic with the opportunity to check whether the Seimas remains to be confident in the Government. Following the established procedure, the President of the Republic submits the candidature of the Prime Minister of the Government that has returned its powers to the Seimas for consideration. Upon the consent of the Seimas to the candidature of the Prime Minister and upon appointment of the Prime Minister by the President of the Republic and upon approval of the composition of the Government submitted by the Prime Minister, it is recognised that the Government is empowered anew to exercise its functions, unless more than half of the ministers have been changed.

Therefore, taking account of the interpretation of the provision of Paragraph 2 of Article 101 of the Constitution relating to the changing of ministers as set forth in this ruling, it should be concluded that, as from 4 December 1996, until the new empowerment of the Government, after the election of the President of the Republic, more than half of the ministers have not been changed in the Government.

5.2. After the 1997 election of the President of the Republic, the Government returned its powers to the newly elected President of the Republic. By his decree of 25 March 1998, the President of the Republic, conforming to Item 4 of Article 84 of the Constitution and taking account of the recommendation of the Prime Minister, confirmed the respective composition of the Government of the Republic of Lithuania.

In its Decision “On the Construction of the 10 January 1998 Ruling of the Constitutional Court of the Republic of Lithuania” of 17 December 1998, the Constitutional Court held that after an election of the President of the Republic, upon the consent of the Seimas to the candidature, nominated by the President of the Republic, of the Prime Minister of the Government which returned its powers, upon the appointment of the Prime Minister by the President of the Republic, and upon the approval of the composition of the Government submitted by the Prime Minister, unless more than half of the ministers have been changed, it is recognised that a new period of powers of the Government begins, therefore, the change of ministers in the Government should be calculated from the beginning of this period.

Conforming to the interpretation of the provision of Paragraph 2 of Article 101 of the Constitution relating to change of ministers which was set forth in this ruling, it is possible to assert that from the new empowerment of the Government until the date pointed out by the petitioner, i.e. 31 May 1998, more than half of the ministers were not changed in the Government.

Taking account of the arguments set forth in this ruling, the conclusion should be drawn that the Government Resolution (No. 647) “On the Consent for Carrying Out a Public Purchase by Way of a Closed-Type Competitive Tender and the Consent for Allocation of Funds” of 1 June 1998 is in compliance with Paragraph 2 of Article 101 of the Constitution and Paragraph 4 of Article 8 of the Law on the Government.

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 Government of the Republic of Lithuania (No. 647) “On the Consent for Carrying Out a Public Purchase by Way of a Closed-Type Competitive Tender and the Consent for Allocation of Funds” of 1 June 1998 is in compliance with the Constitution of the Republic of Lithuania and Paragraph 4 of Article 8 of the Law on the Government 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     Egidijus Kūris     Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius     Stasys Stačiokas      Teodora Staugaitienė