Lt

On the Government of the Republic of Lithuania

Case No. 17/98

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraphs 2 and 4 of Article 8, Item 4 of Paragraph 1 and Paragraph 4 of Article 9, Item 1 of Article 22, Items 5 and 11 of Paragraph 2 of Article 24, Item 7 of Paragraph 3 of Article 26, Paragraphs 2 and 4 and Item 2 of Paragraph 6 of Article 31, Paragraph 4 of Article 37, and Paragraph 4 of Article 45 of the Law on the Government of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

Vilnius, 23 November 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 member Petras Papovas, acting as the representative of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Ona Buišienė, a senior consultant to the Law Department of the Office 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 10 November 1999, in its public hearing, considered case No. 17/98 subsequent to the petition submitted to the Constitutional Court by a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Paragraph 2 of Article 8 and Paragraph 4 of Article 9 of the Law on the Government of the Republic of Lithuania which had been amended by the Republic of Lithuania’s Law on Amending the Law on the Government of 28 April 1998 were in conformity with Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution of the Republic of Lithuania, Paragraph 4 of Article 8 of the said law—with Article 93 of the Constitution, Item 1 of Article 22 of the said law—with Articles 5 and 94 of the Constitution, Items 5 and 11 of Paragraph 2 of Article 24, Item 7 of Paragraph 3 of Article 26 of the said law—with Paragraph 1 of Article 98 of the Constitution, Paragraphs 2 and 4 and Item 2 of Paragraph 6 of Article 31 of the said law—with Article 98 of the Constitution, Paragraph 4 of Article 37 of the said law—with Paragraph 1 of Article 95 of the Constitution, and Paragraph 4 of Article 45 of the said law—with Paragraph 1 of Article 98 of the Constitution.

The Constitutional Court

has established:

I

On 28 April 1998, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on the Government (Official Gazette Valstybės žinios, 1998, No. 41(1)-1131) by which the Law on the Government of the Republic of Lithuania (hereinafter referred to as the Law) was set forth in its new wording.

The petitioner—a group of Seimas members—requests an investigation into whether Paragraph 2 of Article 8 and Paragraph 4 of Article 9 of the Law were in conformity with Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution, Paragraph 4 of Article 8 of the said law—with Article 93 of the Constitution, Item 1 of Article 22 of the said law—with Articles 5 and 94 of the Constitution, Items 5 and 11 of Paragraph 2 of Article 24, Item 7 of Paragraph 3 of Article 26 of the said law—with Paragraph 1 of Article 98 of the Constitution, Paragraphs 2 and 4 and Item 2 of Paragraph 6 of Article 31 of the said law—with Article 98 of the Constitution, Paragraph 4 of Article 37 of the said law—with Paragraph 1 of Article 95 of the Constitution, and Paragraph 4 of Article 45 of the said law—with Paragraph 1 of Article 98 of the Constitution.

II

The arguments of the petitioner are based on the following arguments.

1. Paragraph 2 of Article 8 of the Law provides: “Upon the election of a new Seimas the Government shall return its powers to the President of the Republic on the day when the newly-elected Seimas convenes for the first sitting.” Meanwhile, Paragraph 4 of Article 92 of the Constitution stipulates that the Government shall return its powers to the President of the Republic after the Seimas election or upon electing the President of the Republic. Paragraph 2 of Article 55 of the Constitution provides that the Seimas shall be deemed elected when at least three-fifths of the Seimas members have been elected. The Constitution does not provide that the Government may return its powers only after the Seimas convenes for its first sitting. Under Item 4 of Paragraph 3 of Article 101 of the Constitution, the Government must resign after an election to Seimas, when a new Government is formed. This provision supplements Paragraph 4 of Article 92 of the Constitution. Thus, Paragraph 2 of Article 8 of the Law contradicts Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution. In the opinion of the petitioner, Item 4 of Paragraph 1 of Article 9 of the Law also contradicts the aforesaid articles of the Constitution.

2. Article 8 of the Law does not explain when it is recognised that more than a half of the ministers have changed, nor does it regulate as to what ministers, i.e. whether all the ministers or only the newly appointed ones, must take an oath before the Government, after it has returned its powers and has received confidence anew, begins to perform its duties. Article 93 of the Constitution provides that on entering upon their duties, the Prime Minister and the individual ministers shall, in the Seimas, take an oath. According to the petitioner, the legal regulation set forth in the Law creates the possibility of interpreting the norms of Paragraph 4 of Article 8 of the Law in a varied manner when comparing them with Article 93 of the Constitution.

3. Item 1 of Article 22 of the Law provides that the Government shall protect the constitutional order. Article 94 of the Constitution which enumerates the main powers of the Government does not provide that the Government shall protect the constitutional order. Under Article 5 of the Constitution, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary. In this article the principles of the separation of powers and their limits are established. Thus, in the opinion of the petitioner, it must be concluded that the norms of Item 1 of Article 22 of the Law expands the powers of the Government if compared to those established by the Constitution, therefore, the said norm contradicts Articles 5 and 94 of the Constitution.

4. Item 5 of Paragraph 2 of Article 24 of the Law provides that the Prime Minister has the right to appoint and dismiss the heads of departments under ministries, and upon the recommendation of individual ministers he has the right to appoint vice-ministers, and to fix the number thereof. A similar provision is established in Item 11 of Paragraph 2 of the same article by which the Prime Minister has the right to appoint, upon the recommendation of individual ministers, the heads of other establishments under ministries as well. Items 7 and 11 of Paragraph 3 of Article 26 of the Law provide for the right of individual ministers to present recommendations to the Prime Minister as regards appointment and dismissal of vice-ministers, and the heads of other establishments under ministries. Article 98 of the Constitution prescribes that ministers shall head their respective ministries. Under Article 96 of the Constitution, the ministers shall be responsible to the Seimas, the President of the Republic, and directly subordinate to the Prime Minister. This pre-supposes independence of ministers and their accountability and responsibility in adoption of decisions. Ministers, heading their respective ministries, have an independent right to choose their team and officials. According to the petitioner, Items 5 and 11 of Paragraph 2 of Article 24, Item 7 of Paragraph 3 of Article 26 of the Law contradict Article 96 and Paragraph 1 of Article 98 of the Constitution.

5. Article 31 of the Law employs the concept vice-minister. According to A Dictionary of International Words, this concept means a deputy minister. Paragraph 2 of Article 31 provides that a minister shall direct subdivisions of the ministry either directly or through the vice-ministers or the secretary of the ministry. Paragraph 4 of the same article provides that a vice-minister shall ensure the implementation of the policy established by the minister in the spheres of his powers, shall submit draft laws and other legal acts to the minister. Such powers of a vice-minister, in the opinion of the petitioner, grant him the powers of a deputy minister, therefore, Paragraphs 2 and 4 of Article 31 of the Law contradict Paragraphs 1 and 2 of Article 98 of the Constitution.

6. Item 2 of Paragraph 6 of Article 31 of the Law provides that the secretary of a ministry shall be responsible for the economic and financial activity of the ministry. Under Paragraph 1 of Article 98 of the Constitution, ministers shall head their respective ministries, therefore, they are responsible for the economic and financial activity of their ministries. According to the petitioner, Item 2 of Paragraph 6 of Article 31 of the Law contradicts Article 98 of the Constitution.

7. Paragraph 4 of Article 37 of the Law provides that the most important issues may be discussed before sittings of the Government in the permanent or temporary committees of the Government which are created by the Prime Minister and in convocational conferences of the secretaries of ministries organised by the Secretary of the Government. It is not clear from this wording as to what most important issues might be discussed in convocational conferences of the secretaries of ministries organised by the Secretary of the Government. If these are the issues categorised as the competence of the Government, thus, Paragraph 4 of Article 37 contradicts Paragraph 1 of Article 95 of the Constitution.

8. Paragraph 4 of Article 45 of the Law provides that the Secretary of the Government may issue, within his competence, instructions-resolutions to the ministries (secretaries of ministries) or establishments under the Government. According to the petitioner, as ministries are headed by ministers, then the fact that the said right is granted to the Secretary of the Government contradicts Paragraph 1 of Article 98 of the Constitution.

III

In the course of the preparation of the case for the judicial hearing, explanations of D. Kutraitė-Giedraitienė, Chancellor of the Government of the Republic of Lithuania, Dr. T. Birmontienė, Head of the Constitutional Law Department of the Public Administration Faculty of the Law Academy of Lithuania, and those of the Central Electoral Commission, were received.

In the explanations of D. Kutraitė-Giedraitienė and T. Birmontienė it is maintained that the articles of the Law as well as their parts and items indicated by the petitioner are in conformity with the Constitution.

Z. Vaigauskas, Chairperson of the Central Electoral Commission, in his written paper explains as to how the Central Electoral Commission interprets the concepts after the election of the Seimas, upon election of a new Seimas, and the Seimas shall be held elected.

The Constitutional Court

holds that:

I

1.1. The petitioner requests an investigation into whether Paragraph 4 of Article 9 of the Law is in compliance with the Constitution. In the argumentative part of the petition he also points out another paragraph of Article 9 of the Law: according to him, not only Paragraph 4 of Article 9 but also Item 4 of Paragraph 1 of Article 9 of the Law contradicts the Constitution.

Taking account of this, the petitioner requests an investigation into the compliance of individual articles, their paragraphs and items of the Law regulating the returning of powers of the Government and resignation of the Government with the Constitution, while Item 4 of Paragraph 1 of Article 9 of the Law which was pointed out in the argumentative part of the petition regulates the questions of resignation of the Government. The Constitutional Court will also investigate whether Item 4 of Paragraph 1 of Article 9 of the Law is in compliance with Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution.

1.2. In his petition the petitioner also requests an investigation into whether Items 5 and 11 of Paragraph 2 of Article 24 of the Law are in compliance with Paragraph 1 of Article 98 of the Constitution, however, in the argumentative part of the petition he reduces his request and points out that, in his opinion, only the provisions of Item 5 of Paragraph 2 of Article 24 of the Law under which the Prime Minister is entitled to appoint and dismiss vice-ministers, to establish the number thereof, and to appoint and dismiss the heads and deputy heads of departments under ministries, contradict the Constitution.

Taking account of the aforesaid reasoning, the Constitutional Court will only investigate the compliance of the legal norms contained by Item 5 of Paragraph 2 of Article 24 of the Law which regulate the right of the Prime Minister to appoint and dismiss vice-ministers, the heads and deputy heads of departments under ministries but not that of the whole said item with the Constitution.

1.3. The petitioner requests an investigation into whether Items 5 and 11 of Paragraph 2 of Article 24 and Item 7 of Paragraph 3 of Article 26 of the Law are in compliance with Paragraph 1 of Article 98 of the Constitution wherein the competence of ministers to head respective ministries is established. In the argumentative part of the petition the petitioner also points out that, in his opinion, the said items of said articles of the Law also contradict Article 96 of the Constitution.

Taking account of the arguments set down by the petitioner and the content of Paragraph 2 of Article 96 of the Constitution, the Constitutional Court will also investigate whether the said items of said articles of the Law are in compliance with Paragraph 2 of Article 96 of the Constitution.

II

On the compliance of Paragraph 2 of Article 8 of the Law with Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution.

2.1. Paragraph 2 of Article 8 of the Law provides: “After the election of a new Seimas the Government shall return its powers to the President of the Republic on the day when the newly-elected Seimas convenes for the first sitting.” The petitioner maintains that this contradicts Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution. In the opinion of the petitioner, the Government must return its powers to the President of the Republic upon the election of the Seimas but not on the day when the Seimas convenes for its first sitting.

2.2. Paragraph 4 of Article 92 of the Constitution provides that “the Government shall return its powers to the President of the Republic after an election to the Seimas or upon electing the President of the Republic”.

In the course of the investigation of the question of the returning of powers of the Government after an election to Seimas it is impossible to construe the norm of Paragraph 4 of Article 92 of the Constitution by separating it from the other norms of the Constitution as the constitutional norms regulating various questions of Government formation, as well as those of interrelations between the Seimas, the President of the Republic and the Government, are set down in various articles of the Constitution. Therefore, disclosing the content of Paragraph 4 of Article 92 of the Constitution, the Court will apply not only the linguistic but also systematic method of construction.

When it is investigated as to when particularly the Government must return its powers, it is very important to disclose the content of the concept after the election of the Seimas.

Disclosing the concept after the election of the Seimas, one should take account of the fact that under Paragraph 1 of Article 59 of the Constitution “the term of office of Seimas members shall commence from the day that the newly-elected Seimas convenes for the first sitting. The powers of the previously elected Seimas members shall expire as from the opening of the sitting”. The President of the Republic shall convene the first sitting of the newly-elected Seimas which must be held within 15 days of the Seimas election. If the President of the Republic fails to convene the sitting of the Seimas, the members of the Seimas shall assemble the day following the expiration of the 15-day period (Article 65 of the Constitution). Under Paragraph 2 of Article 55 of the Constitution, the Seimas shall be deemed elected when at least three-fifths of the Seimas members have been elected. The fact that at least three-fifths of the Seimas members have been elected shall be announced by the Central Electoral Commission (Paragraph 1 of Article 82 of the Statute of the Seimas).

Thus, under the Constitution, after the Seimas has been elected, there is a certain time period until the newly-elected Seimas convenes for its first sitting and when the new Seimas begins to function as an institution of state authority. Its duration depends on when the President of the Republic convenes the newly-elected Seimas, however, this period may not be longer than 15 days (Article 65 of the Constitution). During this period, the Seimas which is finishing its office continues to enjoy all the powers granted to it by the Constitution and laws. At the same time the link of the Government with the former Seimas persists as it was that Seimas that participated in the formation of the Government: it had approved the candidature of the Prime Minister and the Programme of the Government, and in this way it had empowered the Government to act (Paragraph 5 of Article 92 of the Constitution). From the announcement of the election results until its first sitting the newly-elected Seimas still does not function as an institution of state authority as the elected Seimas members have not acquired all the rights of the representatives of the Nation.

After the newly-elected Seimas convenes for its first sitting, from the beginning of this sitting the powers of the former Seimas members terminate. Upon the termination of these powers, the former Seimas, i.e. one of the subjects by which the Government had been empowered to act, ceases to exist. It is for this fact that the Government returns its powers to the President of the Republic on the day when the powers of the former Seimas are terminated.

On the grounds of the aforesaid reasoning, the conclusion should be drawn that Paragraph 2 of Article 8 of the Law is in compliance with Paragraph 4 of Article 92 of the Constitution.

2.3. Paragraph 2 of Article 55 of the Constitution provides that “the Seimas shall be deemed elected when at least three-fifths of the Seimas members have been elected”. This constitutional norm provides as to how many Seimas members must be elected so that the legal fact might be stated that a new Seimas has been elected. As mentioned before, the fact that not less than three-fifths of the Seimas members have been elected is stated by the Central Electoral Commission. The statement of this legal fact is very important as it gives rise to the legal effects provided for in the Constitution: a duty for the President of the Republic occurs to convene the newly-elected Seimas for its first sitting which must be held within 15 days; if the President of the Republic fails to convene the sitting of the Seimas, the members of the Seimas shall assemble the day following the expiration of the 15-day period (Article 65 of the Constitution).

Deciding whether Paragraph 2 of Article 8 of the Law is in conformity to Paragraph 2 of Article 55 of the Constitution, one should pay attention to the fact that in this paragraph there is no regulation as to when the Government must return its powers to the President of the Republic. It is established therein as to when the Seimas is deemed to be elected. The returning of the Government’s powers to the President of the Republic is established in Paragraph 4 of Article 92 and Item 6 of Paragraph 6 of Article 84 of the Constitution and, as it was held in this ruling, is linked with the termination of powers of the former Seimas.

On the grounds of the reasoning set forth, it should be concluded that Paragraph 2 of Article 8 of the Law is in compliance with Paragraph 2 of Article 55 of the Constitution.

2.4. Item 4 of Paragraph 3 of Article 101 of the Constitution provides that the Government must resign “after an election to the Seimas, when a new Government is formed”. This legal norm establishes one of the bases for resignation of the Government. Paragraph 2 of Article 8 of the Law stipulates that “after the election of a new Seimas the Government shall return its powers to the President of the Republic on the day when the newly-elected Seimas convenes for the first sitting”. This legal norm regulates relations of a different kind, i.e. the returning of powers of the Government. It needs to be noted that the concepts resignation of the Government and returning of powers of the Government are not identical, they are linked with different legal situations and different legal effects (the Constitutional Court’s ruling of 10 January 1998).

In view of the fact that Item 4 of Paragraph 3 of Article 101 of the Constitution regulates the relations of resignation of the Government but not those of the returning of powers of the Government, the conclusion should be drawn that Paragraph 2 of Article 8 of the Law is in compliance with Item 4 of Paragraph 3 of Article 101 of the Constitution.

III

On the compliance of Item 4 of Paragraph 1 and Paragraph 4 of Article 9 of the Law with Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution.

3.1. Item 4 of Paragraph 1 of Article 9 of the Law provides that the Government must resign “upon election of a new Seimas when the newly-elected Seimas convenes for the first sitting”. In the opinion of the petitioner, Item 4 of Paragraph 1 of Article 9 contradicts Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution.

It needs to be noted that the impugned Item 4 of Paragraph 1 of Article 9 of the Law points out one of the cases when the Government must resign, meanwhile, Paragraph 2 of Article 55 of the Constitution establishes as to when the Seimas is deemed to be elected.

In view of the fact that Paragraph 2 of Article 55 of the Constitution does not regulate the questions of resignation of the Government, the conclusion should be drawn that Item 4 of Paragraph 1 of Article 9 of the Law is in compliance with Paragraph 2 of Article 55 of the Constitution.

3.2. Paragraph 4 of Article 92 of the Constitution provides that “the Government shall return its powers to the President of the Republic after an election to the Seimas or upon electing the President of the Republic”. Thus, Paragraph 4 of Article 92 of the Constitution regulates the questions of the returning of powers of the Government. Meanwhile, Item 4 of Paragraph 1 of Article 9 of the Law points out that upon the election of a new Seimas when the newly-elected Seimas convenes for the first sitting the Government must resign. Thus, Item 4 of Paragraph 1 of Article 9 of the Law regulates the relations linked with resignation of the Government but not those of the returning of powers of the Government.

In view of the fact that Paragraph 4 of Article 92 of the Constitution does not regulate the questions of resignation of the Government, the conclusion should be drawn that Item 4 of Paragraph 1 of Article 9 of the Law is in compliance with Paragraph 4 of Article 92 of the Constitution.

3.3. Item 4 of Paragraph 3 of Article 101 of the Constitution provides that the Government must resign “after an election to the Seimas, when a new Government is formed”. Under Paragraph 3 of Article 101 of the Constitution, “the Government must also resign if: 1) the Seimas disapproves two times in succession of the programme of the newly-formed Government; 2) 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) the Prime Minister resigns or dies”. In addition, the Government must resign in cases when the Government is not re-invested with authority by the Seimas when more than half of the ministers are changed (Paragraph 2 of Article 101 of the Constitution). It needs to be noted that the list of bases of compulsory resignation of the Government provided for by the Constitution is a final one. This means that it is not permitted to establish any new bases for compulsory resignation of the Government by law, nor to change (reduce or expand) these bases by law.

Item 4 of Paragraph 1 of Article 9 of the Law provides that the Government must resign “upon the election of a new Seimas when the newly-elected Seimas convenes for the first sitting”. Meanwhile, Item 4 of Paragraph 3 of Article 101 of the Constitution provides that the Government must resign “after an election to Seimas, when a new Government is formed”. On comparing the bases of resignation of the Government established in the Law and the Constitution, the conclusion should be drawn that they do not coincide as they describe different legal situations: under Item 4 of Paragraph 1 of Article 9 of the Law provides that the Government must resign upon the election of a new Seimas when the newly-elected Seimas convenes for the first sitting, while under Item 4 of Paragraph 3 of Article 101 of the Constitution it must resign after an election to the Seimas, when a new Government is formed.

It needs to be noted that formation of the Government is not a one-off action but a process including various actions: for instance, the President of the Republic must submit to the Seimas the candidature of a new Prime Minister for consideration (Item 8 of Article 84 of the Constitution), the Seimas must approve this candidature (Item 6 of Article 67 of the Constitution), the President of the Republic must appoint the Prime Minister, charge him or her to form the Government, and approve its composition (Item 4 of Article 84 of the Constitution).

The concepts the first sitting of the newly-elected Seimas and formation of the Government are not identical as they describe different legal situations. Thus, Item 4 of Paragraph 1 of Article 9 of the Law provides for a basis of resignation of the Government which is not provided for in the Constitution.

Under Paragraph 2 of Article 5 of the Constitution, the scope of powers shall be limited by the Constitution. After a basis of resignation of the Government which is not provided for in the Constitution had been established in the Law, the powers of the Seimas provided for in the Constitution were overstepped.

Taking account of the reasoning set forth, one should draw the conclusion that Item 4 of Paragraph 1 of Article 9 of the Law contradicts Paragraph 2 of Article 5 and Item 4 of Paragraph 3 of Article 101 of the Constitution.

3.4. Paragraph 4 of Article 9 of the Law provides that “the President of the Republic shall accept resignation 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”. In the opinion of the petitioner, this contradicts Paragraph 2 of Article 55, Paragraph 4 of Article 92 and Item 4 of Paragraph 3 of Article 101 of the Constitution.

As mentioned before, Paragraph 2 of Article 55 of the Constitution provides that “the Seimas shall be deemed elected when at least three-fifths of the Seimas members have been elected”. The purpose of this legal norm is establishment as to when the Seimas must be deemed elected.

Meanwhile, the content of the legal norm contained in Paragraph 4 of Article 9 of the Law is different: it indicates the subject who is empowered to accept resignation of the Government (this is categorised as the competence of the President of the Republic), and provides what actions the President of the Republic may perform after he has accepted resignation of the Government. It needs to be noted that the text of Paragraph 4 of Article 9 of the Law repeats the text of the first sentence of Item 7 of Article 84 of the Constitution.

In view of the fact that Paragraph 2 of Article 55 of the Constitution provides when the Seimas must be deemed elected but it does not provide for the procedure of resignation of the Government, the conclusion should be drawn that Paragraph 4 of Article 9 of the Law is in compliance with Paragraph 2 of Article 55 of the Constitution.

3.5. As mentioned before, in Paragraph 4 of Article 92 of the Constitution the questions of the returning of the powers of the Government are regulated. Meanwhile, in the impugned Paragraph 4 of Article 9 of the Law the questions of resignation of the Government are regulated. In view of the fact that Paragraph 4 of Article 92 does not regulate the questions of resignation of the Government, the conclusion should be drawn that Paragraph 4 of Article 9 of the Law is in compliance with Paragraph 4 of Article 92 of the Constitution.

3.6. Item 4 of Paragraph 3 of Article 101 of the Constitution provides that the Government must resign “after an election to Seimas, when a new Government is formed”. It is pointed out in this legal norm as to when the Government must resign. Meanwhile, as mentioned before, Paragraph 4 of Article 9 of the Law provides that resignation of the Government shall be accepted by the President of the Republic, and indicates what actions he may perform after he has accepted resignation of the Government.

In view of the fact that Item 4 of Paragraph 3 of Article 101 regulates relations different from those regulated in Paragraph 4 of Article 9 of the Law, the conclusion should be drawn that Paragraph 4 of Article 9 of the Law is in compliance with Item 4 of Paragraph 3 of Article 101 of the Constitution.

IV

On the compliance of Paragraph 4 of Article 8 of the Law with Article 93 of the Constitution.

Paragraph 4 of Article 8 of the Law provides that when more than half of the ministers are changed, the Government must be re-invested with authority by the Seimas. The petitioner requests an investigation into whether this is in compliance with Article 93 of the Constitution.

Article 93 of the Constitution provides that “on entering upon their duties, the Prime Minister and the individual Ministers shall, in the Seimas, take an oath to be loyal to the Republic of Lithuania and to observe the Constitution and the laws. The text of the oath shall be established by the Law on the Government”. This constitutional norms provides for a condition which must be fulfilled by the Prime Minister and the ministers so that they might enter upon their duties, i.e. they must take an oath in the Seimas. As long as the Prime Minister or the ministers have not taken an oath in the Seimas, they may not enter upon their duties, i.e. they may not exercise their powers provided for in the Constitution, the laws and other legal acts.

Paragraph 4 of Article 8 of the Law provides as to when the Government must be re-invested with authority by the Seimas (i.e. when more than half of the ministers are changed). It needs to be noted that this text verbally repeats the text of the first sentence of Paragraph 2 of Article 101 of the Constitution. In its ruling of 20 April 1999, the Constitutional Court held that “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”.

In view of the fact that Article 93 of the Constitution regulates the questions of the oath of the Prime Minister and the ministers but does not regulate re-investment of the Government with authority, the conclusion should be drawn that Paragraph 4 of Article 8 of the Law is in compliance with Article 93 of the Constitution.

V

On the compliance of Item 1 of Article 22 of the Law with Articles 5 and 94 of the Constitution.

5.1. Item 1 of Article 22 of the Law provides that the Government shall “protect the constitutional order and the inviolability of the territory of the Republic of Lithuania, administer the affairs of the country, ensure State security and public order”. The petitioner maintains that the provision “the Government shall protect the constitutional order” contradicts Articles 5 and 94 of the Constitution. In the opinion of the petitioner, the said provision of the Law expands the powers of the Government granted to it by the Constitution.

Article 94 of the Constitution provides that the Government shall administer the affairs of the country, protect the inviolability of the territory of the Republic of Lithuania, ensure State security and public order, coordinate the activities of the ministries and other governmental institutions, prepare the draft budget of the state and submit it to the Seimas, establish diplomatic relations and maintain relations with foreign countries etc. The powers of the Government are also established in the other articles of the Constitution (Articles 84, 89, 123, 128 etc.). It needs to be noted that the list of powers of the Government provided for in the Constitution is not a final one. Under Item 7 of Article 94 of the Constitution, the Government shall “discharge other duties prescribed to the Government by the Constitution and other laws”.

Such constitutional regulation of the powers of the Government is determined by the fact that the spheres of state administration and functions of administration are very much varied and subject to change. The activity of the Government is not only of executive but also procedural nature. Enforcing the laws and resolutions adopted by the Seimas, the Government itself passes normative and individual legal acts and ensures their enforcement. On the other hand, when the Government exercises the functions established to it by the Constitution, its powers may depend on the economic and social situation of this country, the problems at issue and a number of other circumstances, after the change of which the content and scope of the powers of the Government may also be changed. Therefore, as mentioned before, only the main powers of the Government are provided for in the Constitution, and it is established therein that the Government shall discharge the duties prescribed to it not only in the Constitution but other laws as well (Item 7 of Article 94 of the Constitution).

5.2. As mentioned before, Item 1 of Article 22 of the Law provides, among the other powers of the Government, that the Government shall protect the constitutional order.

The constitutional order of the Republic of Lithuania is based on of the priority of the rights and freedoms of individuals and citizens as the ultimate value, as well as on the principles establishing the sovereignty of the Nation, independence and territorial integrity of the state, democracy, the republic as the form of state governance, the separation of powers, their independence and balance, local self-government, etc. Protection of the constitutional order means that it is not permitted that the social, economic and political relations established in the Constitution which constitute the fundamentals of the life of individuals, society and the state be encroached upon.

5.3. Article 5 of the Constitution provides that the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary. It is also provided for therein that the scope of powers shall be limited by the Constitution. The Constitutional Court has held that that in cases when the powers of a concrete branch of power are directly established in the Constitution, then no institution may take over these powers, while an institution whose powers are defined by the Constitution may neither transfer nor waive these powers. Such powers may neither be changed nor limited by law (rulings of 21 April 1998 and 3 June 1999).

It needs to be noted that the Constitution does not establish the function of protection of the constitutional order to a single institution of state authority. This is a constitutional obligation of all institutions of state authority (the Seimas, the President of the Republic, the Government, the Judiciary) and other state establishments and organisations. This obligation derives not only from particular laws but also from the principle of the state under the rule of law established in the Constitution and the requirement to adhere to the Constitution, to enforce it, not to violate it and to protect it. Of course, every state institution protects the constitutional order only by means of the forms of the activity characteristic of it and only on the grounds of the powers granted to it by the Constitutions and laws.

In deciding whether Item 1 of Article 22 of the Law is in conformity with the Constitution, the fact is of essential importance that the said item does not establish any additional powers to the Government related to protection of the constitutional order which might otherwise alter or limit the powers of the other institutions of state authority established in the Constitution.

The Constitutional Court notes that the impugned provision of the Law by which the Government shall protect constitutional order may not be construed as the one providing the basis for the Government by its resolutions to establish such powers for institutions of state administration by which the competence of other institutions of state authority might be interfered.

In view of the fact that, under Item 7 of Article 94 of the Constitution, the Seimas is empowered to establish the functions of the Government, and after it had been established in Item 1 of Article 22 of the Law that the Government shall protect the constitutional order, and that by means of this legal norm the constitutional powers of other institutions of state authority have not been changed or limited, the conclusion should be drawn that the Seimas did not overstep the powers granted to it by the Constitution.

On the grounds of the reasoning set forth, it should be concluded that Item 1 of Article 22 of the Law is in compliance with Articles 5 and 94 of the Constitution.

VI

On the compliance of Items 5 and 11 of Paragraph 2 of Article 24 and Item 7 of Paragraph 3 of Article 26 of the Law with Paragraph 2 of Article 96 and Paragraph 1 of Article 98 of the Constitution.

6.1. The petitioner maintains that under the Constitution it is a minister but never the Prime Minister that has to appoint respective vice-ministers, heads of departments and those of other establishments under respective ministries. Therefore, in the opinion of the petitioner, Items 5 and 11 of Paragraph 2 of Article 24 of the Law contradict Article 96 and Paragraph 1 of Article 98 of the Constitution.

Item 5 of Paragraph 2 of Article 24 of the Law provides that the Prime Minister shall “appoint and dismiss the heads of governmental establishments—departments under the Government—upon the recommendation of the Chancellor of the Government, and in the cases provided for by legal acts also the heads of departments under ministries upon the recommendation of individual ministers, and deputy heads of these departments upon the recommendation of the heads of the departments; upon the recommendation of individual ministers appoint and dismiss vice-ministers, and fix the number thereof; on his own initiative dismiss the state officials who have been appointed by the Prime Minister on the basis of political and personal confidence and other officials appointed by the Prime Minister by expressing a lack of confidence in them. In such cases the Law on Employment Contracts shall not be applicable to the said officials, they shall be paid severance compensation in the size of two average monthly work remunerations with the exception of the political officials to whom the social guarantees provided for in Article 13 of the said law shall be applicable”.

Under Item 11 of Paragraph 2 of Article 24 of the Law, the Prime Minister shall “in the cases provided for in the laws and governmental resolutions appoint the heads of the departments and other establishments under ministries upon the recommendation of individual ministers”.

As mentioned before, taking account of the reasoning set forth in the petition of the petitioner, the Constitutional Court will investigate the compliance of not all Item 5 of Paragraph 2 of Article 24 of the Law but only the norms contained in the said item establishing the right of the Prime Minister to appoint and dismiss vice-ministers and the heads and deputy heads of departments under ministries with the Constitution.

6.2. Paragraph 1 of Article 98 of the Constitution provides that “ministers shall head their respective ministries, shall resolve issues assigned to the competence of their ministries, and shall also discharge other functions prescribed by law”.

It needs to be noted that the Constitution does not directly provide for the procedure for appointment and dismissal of vice-ministers, the heads and deputy heads of departments under ministries or other heads of establishments under ministries. This procedure may be regulated by means of laws or other legal acts. The Seimas may establish by law only such procedure of appointment and dismissal of officials which would be in conformity with the provisions of the Constitution. In the context of the petition at issue, this means that the procedure of appointment and dismissal of the aforementioned officials may neither deny nor limit the competence of a minister established in the Constitution.

Thus, while deciding the compliance of the norms of Item 5 and Item 11 of Paragraph 2 of Article 24 of the Law with Paragraph 1 of Article 98 of the Constitution, it is important to disclose the content of the provision “ministers shall head their respective ministries” contained in Paragraph 1 of Article 98 of the Constitution and to establish whether the procedure for appointment of vice-ministers, the heads and deputy heads of departments under ministries or other heads of establishments under ministries denies the constitutional competence of ministers or not.

6.3. It needs to be noted that the following elements constitute the content of the provision “ministers shall head their respective ministries” contained in Paragraph 1 of Article 98 of the Constitution: under procedure established by law or by means of other legal acts, a minister is entitled to choose employees of his ministry and to appoint and dismiss them; a minister is entitled to organise the work of employees of his ministry so that the functions established for the ministry by law and by means of other legal acts might be performed; a minister is entitled to give instructions to all employees of his ministry who must perform them; a minister is entitled to apply disciplinary measures to all the employees of his ministry who do not perform their duties or do not carry out the instructions of the minister or who do not carry out them properly, and he is entitled to give an incentive to all employees of his ministry.

After it had been established in Items 5 and 11 of Paragraph 2 of Article 24 of the Law that the Prime Minister shall appoint and dismiss vice-ministers, while in the cases provided for in the laws and governmental resolutions he shall appoint and dismiss the heads of departments and other establishments under ministries upon the recommendation of a respective minister, the competence of a minister to head his ministry established in Paragraph 1 Article 98 of the Constitution became limited as there not any established right for the minister to decide on his own as to who should be appointed as a vice-minister, or the head or deputy head of a department under the ministry or the head of another establishment under the ministry. Even though under the said provisions of the Law the Prime Minister shall appoint and dismiss vice-ministers, while in the cases provided for in the laws and governmental resolutions he shall appoint and dismiss the heads of departments and other establishments under ministries upon the recommendation of a respective minister, however, the recommendation of the minister is not a sufficient guarantee ensuring that the constitutional right of the minister to head his ministry will not be violated.

It needs to be noted that the competence of a minister to head his ministry established in Paragraph 1 of Article 98 of the Constitution presupposes his personal responsibility for the activities of the ministry. Under Paragraph 2 of Article 96 of the Constitution, the ministers, in directing the spheres of administration entrusted to them, shall be responsible to the Seimas, the President of the Republic, and directly subordinate to the Prime Minister. Paragraph 1 of Article 101 of the Constitution provides that individual ministers must give an account of their activities to the Seimas. The responsibility of a minister for the activities of his ministry is also provided for in the Law: for example, Item 1 of Paragraph 3 of Article 26 of the Law provides that a minister shall be “personally responsible for the implementation of the Programme of the Government within the competence of administration entrusted to his ministry”; Item 2 of the same part provides that a minister shall “ensure the enforcement of the laws, international agreements of the Republic of Lithuania, decrees of the President of the Republic, governmental resolutions, directives of the Prime Minister and other legal acts”. The responsibility of ministers is also provided for in the other items of this article as well.

After the procedure for the appointment and dismissal of the heads and deputy heads of departments under ministries and the heads of other establishments under ministries had been established in the Law by which a minister has not any right to appoint and dismiss the said officials on his own, such legal situation was created when the responsibility of a minister for the activity of his ministry provided for in Paragraph 2 of Article 96 of the Constitution is in part denied: the minister is not independent when he has to choose personalities for vice-ministers, the heads and deputy heads of departments under his ministry, or the heads of other establishments under the ministry, as he is legally bound by the opinion and decision of the Prime Minister who appoints and dismisses the aforementioned officials.

On the grounds of the reasoning set forth, one should draw the conclusion that Item 5 of Paragraph 2 of Article 24 of the Law to the extent that it provides for the right of the Prime Minister to appoint and dismiss vice-ministers, the heads and deputy heads of departments under ministries, and Item 11 of Paragraph 2 of Article 24 of the Law contradict Paragraph 2 of Article 96 and Paragraph 1 of Article 98 of the Constitution.

6.4. Item 7 of Paragraph 3 of Article 26 of the Law provides that a minister shall “submit to the Prime Minister his proposals regarding the appointment or dismissal of vice-ministers, and those concerning the imposition of disciplinary sanctions on them or giving an incentive to them”.

As mentioned before, the provisions of the Law by which the Prime Minister appoints and dismisses vice-ministers, the heads and deputy heads of departments under ministries, the heads of other establishments under ministries contradicts Paragraph 2 of Article 96 and Paragraph 1 of Article 98 of the Constitution. As under the Constitution the Prime Minister may not be granted by law the right to appoint vice-ministers, the heads and deputy heads of departments under ministries and the heads of other establishments under ministries, thus, it is not permitted that by law the right to the Prime Minister to impose disciplinary sanctions on the said officials or to give them an incentive be granted. The right to impose disciplinary sanctions or to give an incentive is one of important control levers assisting a person in charge to achieve performance of his subordinates of their duties properly and his instructions carried out. After it had been established in Item 7 of Paragraph 3 of Article 26 of the Law that a minister shall “submit to the Prime Minister his proposals regarding the appointment or dismissal of vice-ministers, and those concerning the imposition of disciplinary sanctions on them or giving an incentive to them”, a legal situation was created when a minister has the right only to propose but not to decide the questions of appointment and dismissal of vice-ministers and those of the imposition of disciplinary sanctions on them or giving an incentive to them. Such legal regulation limits the competence of a minister to head his ministry established in the Constitution.

On the grounds of the reasoning set forth, one should draw the conclusion that Item 7 of Paragraph 3 of Article 26 of the Law contradicts Paragraph 2 of Article 96 and Paragraph 1 of Article 98 of the Constitution.

VII

On the compliance of Paragraphs 2 and 4 and Item 2 of Paragraph 6 of Article 31 of the Law with Paragraph 1 of Article 98 of the Constitution.

7.1. Paragraph 2 of Article 31 of the Law provides that “a minister shall direct: structural units of the ministry either directly or through the vice-ministers or the secretary of the ministry; departments, services and inspectorates under the ministry, other establishments and organisations under its jurisdiction through the heads of these institutions”. In the opinion of the petitioner, this contradicts Article 98 of the Constitution.

Paragraph 2 of Article 31 of the Law regulates the way how a minister may implement the competence to head the ministry granted to him in Paragraph 1 of Article 98 of the Constitution. While deciding the compliance of Paragraph 2 of Article 31 of the Law with Paragraph 1 of Article 98 of the Constitution, it is of essential importance that Paragraph 1 of Article 98 of the Constitution does not provide for a procedure under which a minister must implement the competence granted to him by the Constitution. This procedure is provided for in the laws, governmental resolutions and other legal acts. The provision set forth in Paragraph 2 of Article 31 of the Law by which a minister may head structural units either directly or through vice-ministers, the secretary of the ministry or the heads of other establishments under the jurisdiction of the ministry permits the minister to choose independently and in an unhindered manner and apply the most rational, in the opinion of the minister, ways of guidance of structural units of the ministry and the establishments under its jurisdiction. The said provision of the Law neither denies nor limits the competence of the minister to head his ministry and to decide the questions prescribed to the sphere of its competence as established in Paragraph 1 of Article 98 of the Constitution.

7.2. Paragraph 4 of Article 31 of the Law provides that “a vice-minister shall take care of the work in the ministry assigned by the minister, through the secretary of the ministry and respective heads of the establishments of the ministry he shall coordinate and ensure within the sphere of his powers the implementation of the policy established by the minister, submit to the minister draft laws and other legal acts”. In the opinion of the petitioner, this contradicts Article 98 of the Constitution.

It needs to be noted that under Paragraph 3 of Article 31 of the Law, the competence of a vice-minister shall be established by the minister and that a vice-minister shall be directly accountable to a respective minister. Enjoying the right to establish the competence of the vice-minister, the minister also has the right to regulate the activity of the vice-minister in his relations with the structural units of the ministry or the establishments within its jurisdiction and to establish the powers of the vice-minister in the sphere of performance of administrative functions. Therefore, there is not any legal basis to assert that the norm contained in Paragraph 4 of Article 31 of the Law denies or limits the competence of a minister to head his ministry as established in Paragraph 1 of Article 98 of the Constitution.

In the context of the question at issue the fact is of importance that the competence of a vice-minister established in Paragraph 4 of Article 31 of the Law is different from that of a minister which is provided in the Constitution and this Law. A vice minister does not have the right to head the ministry, he may not decide the questions categorised as belonging to the sphere of its jurisdiction, he does not have the right to issue directives by which legal acts are confirmed etc. As mentioned before, a vice-minister takes care of the work in the ministry assigned by the minister, coordinates and ensures, within the sphere established to him, the implementation of the policy established by the minister, etc. By Paragraph 2 of Article 26 of the Law, “a minister may be temporarily substituted only by another member of the Government appointed by the Prime Minister”. This legal norm merely repeats the norm set forth in Paragraph 2 of Article 98 of the Constitution. Thus, the Law does not provide that a vice-minister is entitled to exercise the powers granted to the minister by the Constitution or substitute him.

On the grounds of the reasoning set forth, the conclusion should be drawn that Paragraphs 2 and 4 of Article 31 of the Law are in compliance with Paragraph 1 of Article 98 of the Constitution.

7.3. Item 2 of Paragraph 6 of Article 31 of the Law provides that in the cases that the laws regulating the activity of ministries do not provide otherwise, the secretary of a ministry shall be “responsible for the economic and financial activity of the ministry”. The petitioner maintains that this contradicts Article 98 of the Constitution. According to the petitioner, under the Constitution it is the minister but not the secretary of the ministry that should be responsible for the economic and financial activity of the ministry.

It needs to be noted that the legal norm contained in Item 2 of Paragraph 6 of Article 31 of the Law should be interpreted as the one establishing as to what sphere of activity is categorised as belonging the secretary of the ministry and pointing out as to what particular official of the ministry must take care of the economic and financial activity of the ministry and be responsible for it. This norm may not be interpreted as the one establishing that a minister is not responsible for the economic and financial activity of the ministry. A minister, who is empowered to head his ministry by Paragraph 1 of Article 98 of the Constitution, is also responsible for the activity of all the ministry headed by him and for enforcement of the laws, governmental resolutions and other legal acts. Thus, a minister is also responsible for the economic and financial activity of his ministry regardless of the nature of this activity and of the fact that under the Law this sphere of activity is categorised as belonging to the secretary of the ministry, while the Law also provides that also another subject—the secretary of the ministry—is responsible for this activity.

On the grounds of the reasoning set forth, the conclusion should be drawn that Item 2 of Paragraph 6 of Article 31 of the Law is in compliance with Paragraph 1 of Article 98 of the Constitution.

VIII

On the compliance of Paragraph 4 of Article 37 of the Law with Paragraph 1 of Article 95 of the Constitution.

8.1. Paragraph 4 of Article 37 of the Law provides that “the most important issues may be discussed before sittings of the Government in the permanent or temporary committees of the Government which are created by the Prime Minister and in convocational conferences of the secretaries of ministries organised by the Secretary of the Government”. In the opinion of the petitioner, this contradicts Paragraph 1 of Article 95 of the Constitution.

Paragraph 1 of Article 95 of the Constitution provides that “the Government of the Republic of Lithuania shall resolve the affairs of State administration at its sittings by adopting resolutions which must be passed by a majority vote of all members of the Government”.

The aforesaid legal norm establishes the organisational form of the activity of the Government, i.e. questions are decided in Government sittings; it is indicated therein as to what kind of majority vote is necessary in order to adopt a resolution, i.e. it must be passed by a majority vote of all members of the Government; the type of the legal act to be adopted by the Government is established therein, i.e. state administration affairs are decided by adopting a resolution of the Government. Summarising the content of the legal norm set forth in Paragraph 1 of Article 95 of the Constitution, the conclusion should be drawn that this norm determines the manner as to how state administration affairs should be decided by the Government.

8.2. The norm “the most important issues may be discussed before sittings of the Government in the permanent or temporary committees of the Government which are created by the Prime Minister and in convocational conferences of the secretaries of ministries organised by the Secretary of the Government” contained in Paragraph 4 of Article 37 of the Law regulates relations of different nature, i.e. it determines the organisational forms (in the case at issue this is the discussion of issues in the permanent or temporary committees of the Government or in convocational conferences of the secretaries of ministries) in the course of the application whereof it is possible to discuss the ways to decide issues, to harmonise different opinions, to listen to considerations of the specialists before deciding these issues at the sittings of the Government. Thus, Paragraph 4 of Article 37 of the Law merely regulates the preparation for discussion of these issues at the sittings of the Government. Such an interpretation of this norm is also confirmed by Article 39 of the Law wherein it is pointed out that in cases when disputes arise regarding draft legal acts encompassing the sphere of administration of several ministries, then such questions may be discussed in a committee of the Government.

Paragraph 4 of Article 37 of the Law does not provide that the questions categorised as the competence of the Government might be decided in the permanent or temporary committees of the Government or in convocational conferences of the secretaries of ministries nor that there decisions having legal effects might be adopted. Under Paragraph 5 of Article 39 of the Law, when a draft resolution in the Government sitting which has been discussed in a committee is decided, the chairperson of the sitting of the said committee shall inform about the agreements reached by the ministers (or those reached by their authorised representatives) or conclusions of the discussions. The Law does not provide that the Government, deciding the questions categorised as its competence, is bound in any way by the agreements reached by the ministers or conclusions of the discussions which took place nor by the provisions worded in the conferences of the secretaries of ministries. Such a conclusion is confirmed by said Paragraph 1 of Article 37 of the Law wherein it is established that the Government of the Republic of Lithuania shall resolve the affairs of State administration at its sittings by adopting resolutions which must be passed by a majority vote of all members of the Government. It needs to be noted that this norm repeats the legal norm set down in Paragraph 1 of Article 95 of the Constitution.

On the grounds of the reasoning set forth, the conclusion should be drawn that Paragraph 4 of Article 37 of the Law is in compliance with Paragraph 1 of Article 95 of the Constitution.

IX

On the compliance of Paragraph 4 of Article 45 of the Law with Paragraph 1 of Article 98 of the Constitution.

9.1. Paragraph 4 of Article 45 of the Law provides that “within his competence the Secretary of the Government may issue instructions-resolutions to the ministries (secretaries of the ministries) or establishments under the Government”. In the opinion of the petitioner, this contradicts Paragraph 1 of Article 98 of the Constitution.

9.2. It needs to be noted that the post of the Secretary of the Government is not mentioned in the Constitution. The Seimas, when it establishes the legal status of the Secretary of the Government, is bound by the principle of a state under the rule of law formulated in the Preamble of the Constitution and by that defining that the scope of powers shall be limited by the Constitution entrenched in Paragraph 2 of Article 5 of the Constitution. In the context of the petition at issue, the latter principle means that it is not permitted to grant, by means of laws or other legal acts, the Secretary such powers that are categorised as belonging to other subjects by the Constitution, nor such powers that might deny, or limit, or restrict the constitutional right of these subjects to exercise the powers granted to them by the Constitution.

9.3. Under Paragraph 1 of Article 98 of the Constitution, ministers shall head their respective ministries. The right of the Secretary of the Government to issue instructions-resolutions to the ministries as established in Paragraph 4 of Article 45 of the Law virtually means the right to give instructions to a minister.

Under Paragraph 2 of Article 96 of the Constitution, the ministers shall be directly subordinate to the Prime Minister. This means that legally a minister is not subordinate to any other subjects, and that under the Constitution, only the Prime Minister, and in the cases provided for by the Constitution, the President of the Republic, may give instructions to a minister. The Constitution does not provide any right of giving instructions to a minister to any other subject, including the Secretary of the Government.

After the right of the Secretary of the Government to issue instructions-resolutions to ministries had been established in Paragraph 4 of Article 45 of the Law, a legal situation was created when a subject, i.e. a minister, subordinate only to the Prime Minister may be given instructions to act in a respective manner by another subject, i.e. the Secretary of the Government. In addition, such legal regulation is also groundless from the constitutional point of view as it provides that a subject pointed out in the Constitution, i.e. a minister, may be given instructions by a subject who is not mentioned in the Constitution at all.

9.4. Under Paragraph 1 of Article 31 of the Law, the secretary of a ministry shall be the highest in rank career official in the ministry. The secretary of a ministry shall be appointed and dismissed by the minister. As mentioned before, the competence of a minister to head his ministry established in the Constitution means that he has the right to adopt decisions regarding the issues within the competence of the ministry, to give instructions compulsory to all the employees of the ministry, to demand that these instructions be carried out, to apply disciplinary sanctions and other measures to those employees of the ministry who do not carry out his instructions etc. The powers to head the ministry presuppose personal responsibility of the minister for all activity of the ministry and for the proper performance of the duties of the employees of the ministry. Meanwhile, the legal norm contained in Paragraph 4 of Article 45 of the Law under which the Secretary of the Government may give instructions to the secretary of a ministry creates such a legal situation when an official of a ministry who is subordinate to the minister may be given instructions to act in a respective manner by an official of another state institution (in the case at issue this is the Office of the Government). Such legal regulation restricts the competence of a minister to head his ministry established in Paragraph 1 of Article 98 of the Constitution.

9.5. While deciding whether Paragraph 4 of Article 45 of the Law by which the Secretary of the Government is entitled to issue instructions-resolutions to the establishments under the Government is in conformity with the Constitution, it is important to establish as to what establishments are considered the ones under the Government, their legal status, and who the heads of establishments under the Government are subordinate to.

It needs to be noted that the Constitution employs the concept governmental establishment (Item 3 of Article 94). The Constitution does not particularise as to what establishments are considered “governmental establishments”, nor does it point out the legal status of the said establishments.

The law employs various concepts, for example, governmental establishment (Article 33), governmental institution (Paragraph 3 of Article 45), establishments under the Government (Paragraph 4 of Article 45).

Only one of these concepts is disclosed in the Law, i.e. the concept of governmental establishment is explained therein. Under Paragraph 1 of Article 33 of the Law, governmental establishments are departments, services performing the functions of control and inventory-making, agencies, inspectorates and other establishments which may be established in order to decide the questions not categorised as the functions of ministries. The concepts establishment under the Government and governmental institution are not disclosed in the Law.

The Law defines the legal status of governmental establishments only: they are established by the Government; they are established in order to decide the questions not categorised as the functions of ministries; the establishment is headed by its head (a department—by Director General, a service—by the director, an inspectorate—by the chief); the tasks, functions and rights of the establishments are established in their regulations confirmed by the Government; by a governmental resolution, a governmental establishment may be subordinate to a minister (Article 33); governmental establishments may pass legal acts by which legal norms may be established, amended or recognised as null and void (Paragraph 2 of Article 34). The Law also points out certain other elements of the legal status of governmental establishments.

The Law does not contain any legal norms which would provide peculiarities of the legal status of governmental institutions or establishments under the Government and distinguish them according to their legal status or other elements from governmental institutions. On the contrary, on the grounds of Paragraph 1 of Article 45 of the Law which mentions departments under the Government, and on the grounds of Paragraph 1 of Article 33 of the Law by which departments are one of the types of governmental establishments, it is possible to draw the conclusion that a department under the Government is a governmental establishment. Thus, in the course of a systematic analysis of the interrelation of the concepts governmental establishment, governmental institution, establishment under the Government, it is possible to draw the conclusion that establishment under the Government should be categorised as belonging to the group of governmental establishments and is a constituent part of the system of governmental establishments. The concept governmental institution is a more general one and should be interpreted as including governmental establishments as well.

9.6. Under Paragraph 3 of Article 33 of the Law, a governmental establishment shall be headed by its head. The head of a governmental establishment decides the questions categorised as the competence of the establishment and performs other functions provided for by law and governmental resolution. Paragraph 4 of Article 33 of the Law stipulates that “the head of a governmental establishment shall be personally responsible for the decision of the tasks entrusted to his establishment”. The head of a governmental establishment shall be subordinate to the Prime Minister (Paragraph 3 of Article 33 of the Law).

In view of the fact that under the Law a governmental establishment shall be headed by its head, the powers of the Secretary of the Government to issue instructions-resolutions to establishments under the Government as established in Paragraph 4 of Article 45 of the Law virtually mean powers to give instructions to the heads of establishments under the Government.

As mentioned before, while establishing the legal status of the Secretary of the Government, the Seimas is bound by the principles entrenched in the Constitution, the principle of a state under the rule of law among them. In the context of the case at issue this principle also means that it is possible, in the sphere of state administration, to establish by law or other legal act that one subject has the right to give instructions to another subject only when there exist relations of subordination between them. In other words, instructions may be given to a subordinate. After it had been established in Paragraph 4 of Article 45 of the Law that the Secretary of the Government has the right to issue instructions-resolutions to establishments under the Government, the said principle of a state under the rule of law is violated as the Secretary of the Government is granted the right to give instructions to the head of an establishment under the Government who, under the Law, is subordinate not to the Secretary of the Government but the Prime Minister.

On the grounds of the reasoning set forth, the conclusion should be drawn that Paragraph 4 of Article 45 of the Law wherein the right of the Secretary of the Government to issue instructions-resolutions to ministries (secretaries of ministries) or establishments under the Government contradicts Paragraph 2 of Article 5, Paragraph 2 of Article 96 and Paragraph 1 of Article 98 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 has passed the following

ruling:

1. To recognise that Paragraphs 2 and 4 of Article 8, Paragraph 4 of Article 9, Item 1 of Article 22, Paragraphs 2 and 4 and Item 2 of Paragraph 6 of Article 31, Paragraph 4 of Article 37 of the Law on the Government of the Republic of Lithuania are in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that Item 4 of Paragraph 1 of Article 9 of the Law on the Government of the Republic of Lithuania contradicts Paragraph 2 of Article 5 and Item 4 of Paragraph 3 of Article 101 of the Constitution of the Republic of Lithuania.

3. To recognise that Item 5 of Paragraph 2 of Article 24 of the Law on the Government of the Republic of Lithuania to the extent that it provides for the right of the Prime Minister to appoint and dismiss vice-ministers, the heads and deputy heads of departments under ministries, and Item 11 of Paragraph 2 of Article 24 and Item 7 of Paragraph 3 of Article 26 of the Law on the Government of the Republic of Lithuania contradict Paragraph 2 of Article 96 and Paragraph 1 of Article 98 of the Constitution of the Republic of Lithuania.

4. To recognise that Paragraph 4 of Article 45 of the Law on the Government of the Republic of Lithuania contradicts Paragraph 2 of Article 5, Paragraph 2 of Article 96 and Paragraph 1 of Article 98 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      Egidijus Kūris     Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius      Stasys Stačiokas      Teodora Staugaitienė