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On the formation of Seimas provisional commissions of investigation and control

Case No. 24/05-04/06

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPH 3 (WORDING OF 22 DECEMBER 1998) OF ARTICLE 73 OF THE STATUTE OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

4 April 2006

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Česlovas Juršėnas (representing both petitioners—a group of members of the Seimas of the Republic of Lithuania and the Seimas of the Republic of Lithuania), Julius Sabatauskas (representing a group of members of the Seimas of the Republic of Lithuania, a petitioner) and Algirdas Monkevičius (representing the Seimas of the Republic of Lithuania, a petitioner), all of whom are members of the Seimas, as well as Antanas Jatkevičius, senior advisor of the Legal Department of the Office of the Seimas (representing the Seimas of the Republic of Lithuania, a petitioner),

Gintaras Steponavičius, a member of the Seimas (representing the Seimas of the Republic of Lithuania in the part of the case concerning the petition of a group of members of the Seimas of the Republic of Lithuania, the petitioner), 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 Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 30 March 2006, considered case No. 24/05-04/06 subsequent to the following petitions:

the 23 November 2005 petition of a group of members of the Seimas of the Republic of Lithuania, a petitioner, requesting an investigation into whether the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional control or investigation commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas of the Republic of Lithuania is not in conflict with the principle of a free mandate of a member of the Seimas, which, according to the petitioner, is entrenched in Paragraph 4 of Article 59 of the Constitution of the Republic of Lithuania and the principle of a state under the rule of law, which, according to the petitioner, is entrenched in the Preamble of the Constitution of the Republic of Lithuania;

the petition set forth in the Resolution of the Seimas of the Republic of Lithuania “On an Application to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into whether Paragraph 3 of Article 73 of the Statute of the Seimas of the Republic of Lithuania is not in Conflict with the Constitution of the Republic of Lithuania” of 20 December 2005 requesting the Constitutional Court to investigate whether the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional control or investigation commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas of the Republic of Lithuania is not in conflict with the principle of a free mandate of a member of the Seimas, which, according to the petitioner, is entrenched in Paragraph 4 of Article 59 of the Constitution of the Republic of Lithuania.

By the Constitutional Court’s decision of 16 January 2006, both of these petitions were joined into one case and it was given reference No. 24/05-04/06.

The Constitutional Court

has established:

I

1. On 30 November 2005, a group of members of the Seimas, a petitioner, applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 3 of Article 73 of the Statute of the Seimas is not in conflict with the principle of a free mandate of a member of the Seimas, which, according to the petitioner, is entrenched in Paragraph 4 of Article 59 of the Constitution, and with the principle of a state under the rule of law, which, according to the petitioner, is entrenched in the Preamble of the Constitution.

This petition was received at the Constitutional Court on 6 December 2005.

2. On 20 December 2005, the Seimas, a petitioner, adopted the Resolution (No. X-455) “On an Application to the Constitutional Court of the Republic of Lithuania with the Petition Requesting an Investigation into whether Paragraph 3 of Article 73 of the Statute of the Seimas of the Republic of Lithuania is not in Conflict with the Constitution of the Republic of Lithuania” (hereinafter referred to as the Seimas resolution of 20 December 2005) which set forth a petition requesting an investigation into whether the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional control or investigation commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas is not in conflict with the principle of a free mandate of a member of the Seimas, which, according to the petitioner, is entrenched in Paragraph 4 of Article 59 of the Constitution.

This petition was received at the Constitutional Court on 9 January 2006. By its decision of 11 January 2006, the Constitutional Court decided to accept this petition. From the day of the official publication of the announcement of the President of the Constitutional Court about the acceptance of the said petition at the Constitutional Court in the official gazette Valstybės žinios, i.e. as from 14 January 2006, until the publication of a ruling of the Constitutional Court in this constitutional justice case, the validity of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas is suspended.

II

1. The petition of the group of members of the Seimas, a petitioner, is grounded upon the following arguments.

The free mandate of a member of the Seimas, which is entrenched in Paragraph 4 of Article 59 of the Constitution, means that a member of the Seimas, while following the Constitution, the interests of the state and his own conscience, may decide on how to vote. In a parliamentary democracy, one cannot force a member of parliament in a way, which is unacceptable to him. Decisions of the parliament are based on the majority principle, which ensures constructive activities of the representative power. It is necessary to create possibilities for the parliamentary minority to represent their electorate, to express their will, but this may not deny the majority principle, either, on the grounds of which decisions are adopted, nor the free mandate of a member of the Seimas, not the equality of members of the Seimas. Meanwhile, under Paragraph 3 of Article 73 of the Statute of the Seimas, the Seimas has a duty to form a provisional control or investigation commission, if a group of at least 1/4 of the members of Seimas submits a written demand to do so. This could mean an exception to the general procedure of forming such commissions: the commission must be formed obligatorily. Under the established practice, such commissions are formed by adopting Seimas resolutions. However, if an initiative of parliamentary minority (a group of not less than 1/4 of members of the Seimas) becomes obligatory to the Seimas, small political groups, if compared to big ones, find themselves in a better situation when the functions of parliament are implemented.

2. The petition of the Seimas, a petitioner, is based on the following arguments.

Seimas provisional control or investigation commissions are formed after the initiators submit a corresponding draft resolution of the Seimas. Such resolution must be adopted in a Seimas sitting by voting. The free mandate of a member of the Seimas, which is entrenched in Article 59 of the Constitution, permits a member of the Seimas to decide on the formation of the said commission. Meanwhile, the said provision of Paragraph 3 of Article 73 of the Statute of the Seimas implies a duty of the Seimas to adopt a resolution whereby such commission is formed.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, the explanations approved in the 15 March 2005 sitting of the Board of the Seimas concerning the arguments set forth in the Seimas resolution of 20 December 2005 were received.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Seimas member Andrius Kubilius, the representative of the party concerned, the Seimas (who was representing the Seimas in the part of the case concerning the petition of the group of members of the Seimas, a petitioner) in which it is maintained that the impugned provision of Paragraph 3 of Article 73 of the Statute of the Seimas is not in conflict with Paragraph 4 of Article 59 of the Constitution, nor with the constitutional principle of a state under the rule of law. The position of A. Kubilius is grounded on these arguments.

The free mandate of a member of the Seimas means that the member of the Seimas may not be restricted by any commitments to a party, supporters, even the electorate, that no one has the right to oblige or empower the member of the Seimas to vote against his free decision, but it does not mean that the member of the Seimas in the course of voting may be free from his oath by which he is obligated to execute the Constitution and laws. Meanwhile, the Constitution, laws and the Statute of the Seimas contain provisions, which definitively point out as to what decision the member of the Seimas must adopt; members of the Seimas are not free form the obligation to execute these provisions and to vote freely. In addition, the compulsory forming of a provisional control or investigation commission upon initiative of minority does not deny the right of the majority to adopt the final decision, since commissions are formed according to the principle of proportional representation, thus, in any Seimas commission the Seimas majority will have the majority of votes, however, such compulsory forming is a tool, enabling the parliamentary minority to efficiently execute parliamentary control.

V

In the course of the preparation of the case for the Constitutional Court’s hearing, upon the request by the Constitutional Court, information was received from Česlovas Juršėnas, the representative of the Seimas, a petitioner (as the one representing the Seimas in the part of the case concerning the petition of the Seimas, a petitioner), about the provisional commissions which had been formed in the Seimas from 1990 till the beginning of consideration of the constitutional justice case at issue.

In the course of the preparation of the case for the Constitutional Court’s hearing, a paper from A. Kubilius, the representative of a petitioner, the Seimas (as the one representing the Seimas in the part of the case concerning the petition of the group of members of the Seimas, a petitioner) in which, inter alia, the said information submitted by Č. Juršėnas is assented.

2. In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from Prof. E. Šileikis who works at the Department of Constitutional and Administrative Law of the Faculty of Law of Vilnius University.

VI

1. At the Constitutional Court’s hearing, Č. Juršėnas, a representative of the group of members of the Seimas, a petitioner, J. Sabatauskas, a representative of the group of members of the Seimas, a petitioner, and A. Jatkevičius, a representative of the Seimas, a petitioner, virtually reiterated the explanations set forth in corresponding explanations and the explanations approved by the Board of the Seimas.

2. At the Constitutional Court’s hearing, A. Monkevičius, a representative of the Seimas, a petitioner, even though appointed to represent the Seimas (in the part of the case subsequent to the petition of the Seimas, a petitioner), presented a view, which was contrary to that upon which the Seimas resolution of 20 December 2005 is based and asserted that the impugned provision of Paragraph 3 of Article 73 of the Statue of the Seimas was not in conflict with the Constitution.

3. At the Constitutional Court’s hearing, G. Steponavičius, the representative of the Seimas, a petitioner, (as the one representing the Seimas in the part of the case concerning the petition of the group of members of the Seimas, a petitioner) assented to the arguments set forth in the written explanations of A. Kubilius, a representative of the Seimas, a petitioner, and the arguments of A. Monkevičius, a representative of the Seimas, a petitioner (as the one representing the Seimas in the part of the case concerning the petition of the Seimas, a petitioner), which were set forth at the Constitutional Court’s hearing. G. Steponavičius also presented additional arguments, grounding the opinion that the impugned provision of Paragraph 3 of Article 73 of the Statute of the Seimas is not in conflict with the Constitution.

The Constitutional Court

holds that:

I

1. On 22 December 1998, the Seimas adopted the Statue of the Seimas “On the Amendment of the Statute” by Article 1 whereof it set forth the Statute of the Seimas (wording of 17 February 1994 with subsequent amendments and supplements) in a new wording. The Statute of the Seimas of the new wording came into force on 1 February 1999.

Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas provides: “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional control or investigation commission, the Seimas must form such a commission in the course of its nearest sitting.”

Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas has not been amended nor supplemented.

2. A group of members of the Seimas, a petitioner, requests an investigation into whether the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional control or investigation commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 of Article 73 of the Statute of the Seimas is not in conflict with the principle of a free mandate of a member of the Seimas, which, according to the petitioner, is entrenched in Paragraph 4 of Article 59 of the Constitution and the principle of a state under the rule of law, which, according to the petitioner, is entrenched in the Preamble of the Constitution.

The Seimas, a petitioner, requests an investigation into whether the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional control or investigation commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas is not in conflict with the principle of a free mandate of a member of the Seimas, which, according to the petitioner, is entrenched in Paragraph 4 of Article 59 of the Constitution.

3. It needs to be noted that it is impossible to construe the constitutional principle of the free mandate of a member of the Seimas as the one which is entrenched only in Paragraph 4 of Article 59 of the Constitution; this constitutional principle is reflected in various aspects also in other articles (parts thereof) of the Constitution, inter alia, consolidating the constitutional legal status of the member of the Seimas.

It needs also to be noted that, as the Constitutional Court has held in its acts more than once, it is impossible to identify the constitutional principle of a state under the rule of law only with the striving for an open, just, and harmonious civil society and state under the rule of law which is proclaimed in the Preamble of the Constitution; the principle of a state under the rule of law integrates various values consolidated in and protected and defended by the Constitution, including those expressed by the said striving.

4. It is clear from the arguments of the petitioners that they faced doubts not as regards the compliance of the entire quoted provision, i.e. not entire Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas, but only of the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional <…> commission, the Seimas must form such a commission in the course of its nearest sitting” of the same paragraph with the Constitution.

5. In the constitutional justice case at issue, subsequent to the petitions of the petitioners the Constitutional Court will investigate whether the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional <…> commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998; Official Gazette Valstybės žinios, 1999, No. 5-97) of Article 73 of the Statute of the Seimas is not in conflict with Paragraph 4 of Article 59 of the Constitution and the constitutional principle of a state under the rule of law.

II

1. The Seimas is the representation of the Nation. The constitutional nature of the Seimas, as the representation of the Nation, determines its special place in the system of institutions of state power, its functions and powers necessary in order to discharge these functions (the Constitutional Court’s ruling of 13 May 2004).

2. While implementing its constitutional powers, the Seimas discharges the classical functions of the parliament of a democratic state under the rule of law: the Seimas passes laws (the legislative function), conducts the parliamentary control of executive and other state institutions (save courts) (the control function), establishes state institutions, appoints and releases their heads and other state officials (the establishment function), confirms the State Budget and supervises the execution thereof (the budgetary function) etc. (the Constitutional Court’s rulings of 13 May 2004 and 1 July 2004).

The Constitutional Court has held that the said functions of the Seimas as the representation of the Nation of a state under the rule of law are constitutional values, that under the Constitution, the legislature and other subjects of lawmaking may not establish any such legal regulation whereby the said constitutional functions of the Seimas would be denied or opportunities to discharge them would be restricted, since, thus, the Seimas, the representation of the Nation, would be hindered from effective actions in the interests of the Nation and the State of Lithuania (the Constitutional Court’s ruling of 13 May 2004).

One must establish by means of legal acts such structure of the Seimas and its work procedure, must define such relations of the Seimas with other state institutions, and must consolidate such legal status of the member of the Seimas, so that the Seimas, the representation of the Nation, might be able to discharge its constitutional functions, while members of the Seimas might execute, as representatives of the Nation, their constitutional powers uninterrupted, and when in office, they would follow the Constitution, the interests of the state, their own consciences and would not be restricted by any mandates.

While passing laws and discharging other functions, the Seimas, as well as each member of the Seimas, are bound by the Constitution, constitutional laws and laws, as well as the Statute of the Seimas which has the force of a law.

3. Under the Constitution, the powers of the Seimas may be established and are established not only in the Constitution but also in laws; some cases where certain powers of the Seimas entrenched in the Constitution may be particularised in laws are directly specified in the Constitution; the Seimas, as the representation of the Nation, has the right to establish, by law, also such its powers that are not expressis verbis indicated in the Constitution which, however, are designed for the implementation of the constitutional functions of the Seimas; implementing its right directly established in the Constitution to particularise its certain constitutional powers by means of laws, as well as establishing, by means of laws, its powers that are not expressis verbis indicated in the Constitution, the Seimas is bound by the Constitution. (the Constitutional Court’s ruling of 13 May 2004).

4. In its ruling of 13 May 2004, the Constitutional Court held: “In order that it might properly discharge its parliamentary functions and implement its constitutional powers, the Seimas, the representation of the Nation, has to possess exhaustive and objective information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems. The possession of such information is a necessary precondition for the fact that the Seimas might be able to effectively act in the interests of the Nation and the State of Lithuania, that it would properly execute its constitutional duty.”

In the same ruling of the Constitutional Court it is also held: “The constitutional functions of the Seimas, the powers of the Seimas entrenched in the Constitution presuppose the powers of the Seimas in every case when a necessity occurs to decide a certain question assigned to the constitutional competence of the Seimas, to seek to achieve exhaustive and objective information necessary to adopt corresponding decisions. The necessity to possess such information means that in case of need the Seimas can rely not only on the publicly known information or that presented to it by state institutions and other persons, but also that it can resort to concrete actions so that such exhaustive and objective information could be received. In case of need, the Seimas may conduct investigation by itself so that it could collect exhaustive and objective information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems. This activity of the Seimas logically follows from its purpose as the parliament, and from its constitutional functions and constitutional powers.”

5. Under the Constitution, the Seimas must establish such legal regulation, so that legal preconditions might be created to receive the necessary information needed in order to execute its constitutional powers.

In its ruling of 13 May 2004, the Constitutional Court held that the Seimas, enjoying the powers in every case, whenever a necessity occurs to decide a certain issue within the constitutional competence of the Seimas, to seek to receive exhaustive and objective information needed to adopt corresponding decisions, also enjoys discretion to form such its structural subunits which would be assigned to conduct an investigation so that exhaustive and objective information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems could be collected. In the same ruling the Constitutional Court also held that the Seimas, while enjoying, under the Constitution, the discretion to establish its structure, it also enjoys discretion to form is structural subunits, as well as discretion to establish the names of its structural subunits, their competence, composition, their interrelations, term of activity, and to formulate them certain tasks; while establishing this, the Seimas is bound by the norms and principles of the Constitution.

Under Article 76 of the Constitution, the structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas. In this context, it should be mentioned that that it is impossible to construe the provision that the structure and procedure of activities of the Seimas shall be established by the Statute of the Seimas only linguistically, i.e. as meaning that the powers of structural subunits of the Seimas may be established only in the Statute of the Seimas; for instance, in order to discharge its constitutional functions, the Seimas may need to form also such its structural subunits, which would have the powers in regard of various state or municipal institutions, their officials and other persons. Such powers may be related to the receiving of information from state or municipal institutions, their officials and other persons about certain processes taking place in the state and society, about the situation in various spheres of life of the state and society; the reception of such information may not depend upon the fact whether corresponding institutions and other persons are accountable to the Seimas or not; if one has to establish authoritative empowerments of a structural subunit of the Seimas in regard of institutions not accountable to the Seimas, their officials and other persons (including the right to demand such information, whose submission is regulated by law), then such powers of the structural subunit of the Seimas must be established by law (the Constitutional Court’s ruling of 13 May 2004).

It needs to be noted that in a democratic state under the rule of law one cannot deny the powers of the parliament—the representation of the Nation—to take measures, inter alia, to form structural subunits of the parliament, which are meant for this purpose, and to commission them with conducting a corresponding investigation, so that information would be received about the processes taking place in the state and society, about the situation in various areas of life of the state and society and arising problems; otherwise, proper discharge of functions of the parliament—the representation of the Nation—and adoption of necessary decisions would not be ensured. The said powers arise from the very essence of the parliamentary democracy and is one of the features of parliamentarism. In the practice of parliaments of democratic states under the rule of law an opportunity of the parliament to take measures in order to receive information about processes taking place in the state and society, about the situation in various spheres of life of the state and society and the arising problems is also implemented by means of such institutes as provisional commissions (which are commissioned with conducting a certain investigation) formed by parliaments, parliamentary hearings and deliberations etc.

The institute of provisional commissions formed by the Seimas, inter alia, provisional investigation commissions, is also characteristic of the parliamentarism tradition of the State of Lithuania.

6. It needs to be noted that, under the Constitution, it is not permitted to establish any exhaustive (final) list of questions, for the investigation of which the Seimas may form provisional investigation commissions: since the Seimas, as the representation of the Nation and the institution of legislation (performing, as mentioned before, not only the legislative but also various other functions), may pass laws and other legal acts regulating most varied social relations, it can virtually form provisional investigation commissions designated for investigation into most varied processes which take place in the state and society.

6.1. The principle of responsible governance is entrenched in the Constitution (the Constitutional Court’s rulings of 1 July 2004, 13 December 2004, and 2 June 2005). The Constitution does not imply any such activities of the Seimas, where the Seimas collects all the information necessary for legislation and other functions of the Seimas by itself, by not relying on the information submitted to it by other state institutions, nor when in the activities of the Seimas the formation of provisional or like commissions and investigation performed by them dominate. Quite to the contrary, the Constitution implies the institute of Seimas provisional investigation commissions and the legal regulation of the formation of such commissions and of their activities, where Seimas provisional investigation commissions are formed not in order to investigate any, but only special questions, i.e. those of state importance. The powers of Seimas provisional investigation commissions should be related with the constitutional purpose and functions of the Seimas.

6.2. The Constitution does not imply any possibility of forming any such Seimas provisional investigation commissions that would be commissioned with an investigation into such matters which institutions of public power, under the Constitution, may not investigate at all, as for example, circumstances of personal or family life of a human being, if, by such investigation one would unreasonably interfere with the private life of the human being, which is defended by the Constitution, if the inviolability of private life is violated, etc.

6.3. The conclusion should be drawn from the constitutional principle of the separation of powers and other provisions of the Constitution that the Seimas has no powers to form any such provisional investigation commissions which would be commissioned with an investigation into the matters in the course of the investigation of which the powers of other institutions which exercise public power, as well as the powers of other state and municipal institutions provided for in the Constitution and/or laws, would be interfered with. For example, a Seimas provisional investigation commission cannot take over the constitutional powers of courts or otherwise interfere with the implementation of the constitutional competence of courts, nor violate the independence of the judge and courts in the course of administration of justice, let alone administer justice by itself; the Seimas provisional investigation commission may not take over the constitutional powers of prosecutors or otherwise interfere with the implementation of the constitutional competence of prosecutors, nor violate the independence of the prosecutor when he organises pre-trial investigation and pursues charges on behalf of the state in criminal cases (the Constitutional Court’s ruling of 13 May 2004).

However, the fact that Seimas provisional investigation commissions cannot be commissioned with an investigation into the matters in the course of investigation of which the powers of other institutions which exercise public power, as well as the powers of other state and municipal institutions provided for in the Constitution and/or laws would be interfered with, does not mean that Seimas provisional investigation commissions cannot have any powers in regard of state or municipal institutions, their officials and other persons at all. Such powers may be established by means of a law, when heed is paid to the Constitution as well.

7. It needs to be noted that the nature of Seimas provisional investigation commissions as structural subunits of the Seimas implies that an initiative of forming such a commission may arise only in the Seimas, i.e. only members of the Seimas may express it. Thus, under the Constitution, one may not establish any such legal regulation whereby the formation of a Seimas provisional investigation commission is initiated not by members of the Seimas, but other subjects.

The Seimas, when regulating the formation of Seimas provisional investigation commissions by means of legal acts, may establish as to by what ways and organisational forms members of the Seimas can express an initiative to form a Seimas provisional investigation commission; the Seimas may establish, inter alia, that such initiative can be expressed by certain Seimas structural subunits (e.g. political groups, committees) and/or a group of a certain number of members of the Seimas. In the context of the constitutional justice case at issue, it needs to be noted that, while taking account of the fact that Seimas provisional investigation commissions can be formed for investigation into not any, but only special questions, i.e. those of state importance, the said group of members of the Seimas should be sufficiently big; on the other hand, if one established a too big number of members of the Seimas constituting such a group, the opportunities of members of the Seimas to initiate the formation of Seimas provisional investigation commissions so that the Seimas could receive information about processes taking place in the state and society, about the situation in various spheres of life of the state and society and the arising problems, which is necessary so that the Seimas—the representation of the Nation—would effectively act in the interests of the Nation and the State of Lithuania, would be groundlessly restricted.

Taking account of the fact that the Constitution implies protection of the parliamentary minority and the minimum requirements of the protection of the Seimas opposition (the Constitutional Court’s rulings of 26 November 1993 and 25 January 2001), as well as the fact that recognition of the parliamentary opposition is a necessary element of pluralist democracy (the Constitutional Court’s ruling of 25 January 2001), also such legal regulation may be established whereby the Seimas opposition might initiate the formation of provisional investigation commissions.

8. In itself, the statement about the initiative to form a Seimas provisional investigation commission, whoever expressed it, does not imply the formation of such a commission. It needs to be emphasised that a Seimas provisional investigation commission is a subject formed by the entire Seimas, but not by its part, not by a structural subunit of the Seimas or by a group of members of the Seimas; the powers of a Seimas provisional investigation commission may stem only from an act of the Seimas as the representation of the Nation—the expression of the will of the Seimas—but not from expression of the will or intention of a certain subunit of the Seimas or of a group of members of the Seimas. Due to this, it is only the Seimas that can decide on whether to form a Seimas provisional investigation commission on certain issue, or not to form it, it is only the Seimas that can establish its composition, tasks, etc.—no one else can express such its will for the Seimas, thus, not any structural subunit of the Seimas, nor any group of members of the Seimas.

One of democratic principles of adoption of decisions is the majority principle (the Constitutional Court’s ruling of 22 July 1994). The political will of the majority of members of the Seimas is reflected in Seimas resolutions (the Constitutional Court’s conclusion of 31 March 2004). It needs to be underlined that, under the Constitution, the will of the Seimas regarding the formation of a Seimas provisional investigation commission cannot be expressed otherwise than by voting at a Seimas sitting and adopting a corresponding substatutory legal act. The Constitutional Court has held that the substatutory acts of the Seimas whereby questions related with the formation of structural subunits of the Seimas (thus, including Seimas provisional investigation commissions), their competence and composition may not be in conflict with laws as well as with the Statute of the Seimas; that if a substatutory act of the Seimas sets the powers of a structural subunit of the Seimas (thus, including the Seimas provisional investigation commission) in regard of state or municipal institutions, their officials, and other persons, then such provisions of the substatutory act of the Seimas must be grounded on provisions of laws (the Constitutional Court’s ruling of 13 May 2004).

9. In each particular case, before deciding on the formation of a Seimas provisional investigation commission, the Seimas must deliberate and assess whether or not this Seimas provisional investigation commission can be formed according to the Constitution and laws. The Seimas must deliberate and assess, inter alia, the following: whether the issue due to which the formation of the Seimas provisional investigation commission is proposed is really of state importance; whether one suggests that this Seimas provisional investigation commission be commissioned with an investigation into the matters which, under the Constitution, institutions of public power may not investigate at all; whether one suggests that this Seimas provisional investigation commission be commissioned with an investigation into the matters in the course of investigation of which the powers of other institutions which execute public power, as well as the powers of other state and municipal institutions provided for in the Constitution and/or laws, would be interfered with.

Before deciding on the formation of the Seimas provisional investigation commission, the Seimas may assess (inter alia, also from the aspect of expediency) also whether there are any circumstances, which would justify the non-forming of such commission, as, for example: whether a corresponding question has been investigated already or whether it is under investigation by a Seimas provisional investigation commission or another institution, whether the corresponding work may be performed by an already established and acting structural subunit of the Seimas, etc.

10. It needs to be emphasised that the Seimas, when forming a Seimas provisional investigation commission, must pay heed to the imperative of protection of the Seimas minority, and the minimum requirements of the protection of the Seimas opposition, which arise from the Constitution, and which imply, inter alia, that a Seimas provisional investigation commission may not be formed only from representatives of the political majority of the Seimas, without including representatives from the minority (opposition), if they so request. It should also be emphasised that in the course of forming a Seimas provisional investigation commission one must respect the will and interest of the initiators of forming the commission in order to investigate precisely the question formulated by them and one must ensure that the initiators are properly represented in the Seimas provisional investigation commission.

11. It needs to be emphasised that conclusions of the Seimas provisional investigation commission are not binding on the Seimas. The Seimas, having formed a provisional investigation commission and having set certain tasks to it, also has the power, under the Constitution, according to the procedure established in legal acts to assess the activities of such its Seimas provisional investigation commission and their results. The fact as to by what form the activities of the Seimas provisional investigation commission and their results must be assessed is decided by the Seimas at its discretion. For instance, the Seimas may decide whether or not to approve of the activities of the Seimas provisional investigation commission, or whether to approve of them only in part (with reservations), the Seimas may state whether the Seimas provisional investigation commission formed by it has performed the tasks set to it, or whether it failed to perform them, or whether it performed them only in part, etc. (the Constitutional Court’s ruling of 13 May 2004).

The Seimas, after it has decided to approve of the conclusion of the Seimas provisional investigation commission, does not adopt a decision on the compliance of the investigated actions, decisions, and circumstances with legal acts which is mandatory to other state institutions (including institutions of pre-trial investigation, the prosecutor’s office, courts), but it merely formulates its point of view as to the conclusion of the Seimas provisional investigation commission that was formed by it. The conclusion (its individual statements) of the Seimas provisional investigation commission in itself directly does not give rise to any legal effects to the persons indicated in it. Such effects could be raised to them only by decisions of other institutions and their officers, which may be adopted, while taking into consideration of the conclusion of the Seimas provisional investigation commission (the Constitutional Court’s ruling of 13 May 2004).

12. It needs to be noted that in the course of forming Seimas provisional investigation commissions one must pay heed to the principle of the free mandate of a member of the Seimas, which is entrenched in the Constitution, inter alia, in Paragraph 4 of Article 59 thereof, which is one of the guarantees of independence of activities of members of the Seimas and of their equal rights. From the principle of the free mandate of a member of the Seimas stems the right of a member of the Seimas to vote at his own discretion in the course of adoption of any decision of the Seimas, i.e. on each issue to vote according to his conscience.

The principle of the free mandate of a member of the Seimas that a member of the Seimas, when he, together with other members of the Seimas, initiates the formation of a Seimas provisional investigation commission, as well as participates in the adoption of a Seimas resolution on the formation of the Seimas provisional investigation commission, and participates in the activities of the Seimas provisional investigation commission, and participates in the adoption of the Seimas resolution on the activities of the Seimas provisional investigation commission and assessment of the results of its activities, must follow only the Constitution, the interests of the state as well as his own conscience (Paragraph 4 of Article 59 of the Constitution)—such his freedom may not be restricted by the mandate of the electorate, nor by any political or other requirements of the political parties or organisations which have nominated him, nor by the will of other members of the Seimas. It needs to be mentioned that the member of the Seimas may not be persecuted for his voting or his speeches at the Seimas (save personal insult and slander) (Paragraph 3 of Article 62 of the Constitution).

13. In the context of the constitutional justice case at issue, one is especially to underline that the free mandate of a member of the Seimas is not a privilege of the representative of the Nation, it is rather one of the legal measures ensuring that the Nation will be properly represented in its democratically elected representation, the Seimas, and that the representation of the Nation, the Seimas, will act only in the interests of the Nation and the State of Lithuania (the Constitutional Court’s ruling of 1 July 2004).

The free mandate of a member of the Seimas may not be used in the interests other than those of the Nation and the State of Lithuania (the Constitutional Court’s ruling of 1 July 2004). In its rulings of 25 May 2004 and 1 July 2004, the Constitutional Court held that the Constitution implies the notion of discretion and conscience of a member of the Seimas, according to which no gap should exist between the discretion of the member of the Seimas and the conscience of the member of the Seimas, and the requirements of the Constitution, as well as values entrenched in and protected by the Constitution: according to the Constitution the discretion of a member of the Seimas and his conscience should be oriented towards the Constitution, and the interests of the Nation and the State of Lithuania.

In the context of the constitutional justice case at issue, it should be noted that in cases when the question for investigation into which the formation of a Seimas provisional investigation commission is proposed is really of state importance and there are not any circumstances due to which the commission may not be formed under the Constitution and laws, and if there are not any circumstances which would justify the non-forming of such a commission, the free mandate of members of the Seimas must be used in such a way, so that the Seimas could effectively act in the interests of the Nation and the State of Lithuania, that it would properly perform its constitutional obligation.

14. As mentioned before, the principle of responsible governance is entrenched in the Constitution. The Seimas should not use its constitutional powers to form provisional investigation commissions in a way, whereby it would itself collect all the information necessary for legislation and performance of its other functions and whereby in its activities the formation of provisional investigation or similar commissions and the investigation conducted by them would dominate; as mentioned above in this ruling of the Constitutional Court, the Constitution does not imply any such activity of the Seimas. Otherwise, preconditions might be created where certain circumstances would hinder the work of the parliament, would hinder the Seimas, the representation of the Nation, to act rationally and effectively in the interests of the Nation and the State of Lithuania.

15. It needs to be noted that each Seimas decision on forming a Seimas provisional investigation commission (decision on forming such a commission, decision on non-forming such a commission, etc.), whatever the expression (legal form) of such a decision, may, under the Constitution, be impugned before the Constitutional Court in regard of the compliance of this decision (Seimas act) with legal acts of higher legal force, inter alia (and, first of all), the Constitution. Under the Constitution, the subjects specified in Paragraph 1 of Article 106 of the Constitution, inter alia, not less than 1/5 of all the members of the Seimas, i.e. a group of not less than 29 members of the Seimas, may do so.

III

On the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional <…> commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas with Paragraph 4 of Article 59 of the Constitution and the constitutional principle of a state under the rule of law.

1. The institute of Seimas provisional investigation commissions is consolidated in the Statute of the Seimas (wording of 22 December 1998 with subsequent amendments and supplements).

2. Under Paragraph 1 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas, provisional control or investigation commissions shall be formed for the purpose of control over how the decisions of Seimas are being implemented, collection and presentation of collected information and conclusions, required to analyse the problem at hand, as well as in other instances stipulated in this Statute. Paragraph 1 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas provides that the Seimas, having recognised a necessity, may form, inter alia, provisional investigation commissions for the purpose of investigation or preparation of a certain question, or for the purpose of performance of other assignments of the Seimas.

Under Paragraph 1 of Article 2 of the Law on Seimas Provisional Investigation Commissions, the Seimas, having recognised a necessity to investigate an issue of state importance, may form a Seimas provisional investigation commission. While construing this provision, the Constitutional Court has held that in every particular case the Seimas, before it decides on the formation of a Seimas provisional investigation commission, must consider and assess whether the issue is really that of state importance (the Constitutional Court’s ruling of 13 May 2004).

It also noteworthy that, under the Statute of the Seimas, the Seimas can also assign committees with performing parliamentary investigation, which, in such a case, act in compliance with the rules of procedure of the Seimas control commission or provisional investigation commissions, set forth in Articles 75–76 of this Statute, and enjoy the same powers (Paragraph 4 (wording of 22 December 1998) of Article 56 of the Statute of the Seimas).

3. Under Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas, the powers of Seimas provisional investigation commissions are established by law. It needs to be emphasised that the Law on Seimas Provisional Investigation Commissions establishes broad powers of such commissions. These commissions, inter alia, have the right: to receive documents, data or information from all institutions of state power and governance, the Bank of Lithuania, state and municipal enterprises (as well as form those controlled by them), establishments and organisations (Item 1 of Paragraph 1 of Article 4 (wording of 3 April 2003)); to receive verbal and written explanations or notes from heads and other employees of all state and governance institutions, state and municipal enterprises (including those controlled by them), establishments and organisations, concerning the issues considered by the commission (Item 2 of Paragraph 1 of Article 4 (wording of 3 April 2003)); to summon to the sittings of the commission state and municipal politicians, officials, servants as well as other persons working at state and municipal institutions, to hear their explanations, to demand that they present information or data concerning the issue considered by the commission and to receive them either in writing or orally (Item 3 of Paragraph 1 of Article 4 (wording of 3 April 2003)). The Law on Seimas Provisional Investigation Commissions (wording of 23 March 1999 with subsequent amendments) establishes also other powers of Seimas provisional investigation commissions.

4. The Board of the Seimas, Seimas committees, parliamentary groups and a group of at least 1/4 of the members of Seimas shall have the right of initiative to form provisional control or investigation commissions (Paragraph 1 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas). The initiators must submit to the Seimas a draft proposal of the decision on forming a provisional control or investigation commission, which shall indicate the aim in forming such a commission, its tasks and powers (Paragraph 2 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas).

5. Under Paragraph 5 (wording of 22 December 1998) of Article 71 of the Statute of the Seimas, the Seimas votes for the entire list of members of a Seimas provisional investigation commission. The chairperson of a Seimas provisional investigation commission is also appointed by the Seimas (Paragraph 1 (wording of 22 December 1998) of Article 74 of the Statute of the Seimas).

Under Paragraph 1 (wording of 22 December 1998) of Article 113 of the Statute of the Seimas, laws, Seimas resolutions and other Seimas decisions are adopted by a simple (i.e., more than one half) majority of the members of the Seimas present at the sitting, with the exception of special instances stipulated by the Constitution and this Statute. Thus, under the Statute of the Seimas (wording of 22 December 1998 with subsequent amendments and supplements), also a Seimas decision on forming a Seimas provisional investigation commission is adopted by a simple majority of votes of the members of the Seimas participating at the sitting.

6. The Statute of the Seimas entrenches a general provision that Seimas provisional investigation commissions are formed according to the principle of proportionate representation of Seimas political groups (Paragraph 3 (wording of 22 December 1998) of Article 71 of the Statute of the Seimas). In certain instances Seimas may establish another procedure of commission formation, however, these may not consist of representatives of one parliamentary group or one committee (Paragraph 7 (wording of 22 December 1998) of Article 71 of the Statute of the Seimas). The provision that representatives of only one Seimas political group may never be members of a Seimas provisional investigation commission is also consolidated in Paragraph 2 of Article 2 of the Law on Seimas Provisional Investigation Commissions.

7. As mentioned before, under Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas, if a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional control or investigation commission, the Seimas must form such a commission in the course of its nearest sitting. It is the compliance of this provision of the Constitution that the petitioners had doubts about.

8. It is clear from the legal regulation established in the Statute of the Seimas (wording of 22 December 1998 with subsequent amendments and supplements) and the Law on Seimas Provisional Investigation Commissions (wording of 23 March 1999 with subsequent amendments) that Seimas provisional investigation commissions, no matter who initiates their composition, must be formed upon a resolution of the Seimas. This may also be said about the cases when the formation of a Seimas provisional investigation commission is initiated by not less than 1/4 group of members of the Seimas.

9. When construing the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional <…> commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas only literally, by applying only the linguistic method, perhaps, it might be possible to assert that, purportedly, if a group of at least 1/4 of the members of Seimas submits a written demand to form a Seimas provisional investigation commission, the Seimas must form such a commission in all cases and that a corresponding decision should be adopted in the course of its nearest sitting.

However, when deciding whether the said provision is not in conflict with the Constitution, it needs to be noted that it is impossible to construe it by means of application of only the linguistic method.

When the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional <…> commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas is construed by applying other methods (inter alia, the systemic one) of construction of law, attention should be paid to: Paragraph 1 (wording of 22 December 1998) of Article 71 of the Statute of the Seimas, whereby, having acknowledged the necessity, the Seimas may form, inter alia, provisional commissions to examine and prepare or fulfil another assignment of the Seimas; Paragraph 2 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas, whereby, the initiators of forming a Seimas provisional investigation commission must submit to the Seimas a draft proposal of the decision on forming the said commission, which shall indicate the aim in forming such a commission, its tasks and powers; Paragraph 1 (wording of 22 December 1998) of Article 113 of the Statute of the Seimas, whereby, inter alia, Seimas resolutions and other Seimas decisions are adopted by a simple (i.e., more than one half) majority of the Seimas members present at the sitting, with the exception of special instances stipulated by the Constitution and this Statute; and Paragraph 1 of Article 2 of the Law on Seimas Provisional Investigation Commissions, under which the Seimas, having acknowledged the necessity of investigation into an issue of state importance, may form a Seimas provisional investigation commission.

10. Thus, under the Statute of the Seimas (wording of 22 December 1998 with subsequent amendments and supplements) and the Law on Seimas Provisional Investigation Commissions (wording of 23 March 1999 with subsequent amendments), in all cases when there is an initiative to form a Seimas provisional investigation commission, inter alia, in cases when a group of not less than of 1/4 members of the Seimas demand this in writing, the Seimas enjoys the powers not only to form such a commission, but also to decide not to form it.

10.1. The literal construction alone that, purportedly, if a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional commission, the Seimas has no other choice but to form such a commission, would mean that the free mandate of a member of the Seimas is disregarded, which implies, inter alia, the right of a member of the Seimas to vote at his discretion when any decision of the Seimas is adopted, thus, also a decision regarding the formation of any Seimas provisional investigation commission; such construction would also mean that a group of 1/4 or a bigger group of members of the Seimas can impose their will upon the entire Seimas—the representation of the Nation—even though the bigger part of members of the Seimas do not support the said initiative.

The literal construction alone that, purportedly, if a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional commission, the Seimas must form such a commission, would also mean that the said commission must also be formed even in cases when a question is proposed to be investigated, which, under the Constitution, may not be investigated in the Seimas.

10.2. In the context of the constitutional justice case at issue, it also needs to be noted that every time when the Seimas decides not to form a Seimas provisional investigation commission, although not less than a group of 1/4 of the members of the Seimas demand this in writing, no matter what the expression (legal form) of such a decision, one must pay heed to the fact that, as held in this ruling of the Constitutional Court, in cases when the question for investigation into which the formation of a Seimas provisional investigation commission is proposed is really of state importance and there are not any circumstances due to which the commission may not be formed under the Constitution and laws, and if there are not any circumstances which would justify the non-forming of such a commission, the free mandate of members of the Seimas must be used in such a way, so that the Seimas could effectively act in the interests of the Nation and the State of Lithuania, that it would properly perform its constitutional obligation.

In addition, as mentioned before, each Seimas decision on forming a Seimas provisional investigation commission (decision on forming such a commission, decision on non-forming such a commission, etc.), whatever the expression (legal form) of such a decision, may, under the Constitution, be impugned before the Constitutional Court in regard of the compliance of this decision (Seimas act) with legal acts of higher legal force, inter alia (and, first of all), the Constitution; under the Constitution, the subjects specified in Paragraph 1 of Article 106 of the Constitution, inter alia, not less than 1/5 of all the members of the Seimas, i.e. a group of not less than 29 members of the Seimas, may do so.

11. Only if the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional <…> commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas is understood in this way, then it neither violates the free mandate of a member of the Seimas, nor the powers of the Seimas, as the representation of the Seimas, to decide by itself whether to form the Seimas provisional investigation commission or whether not to form it, nor does it deny an opportunity for the Seimas to form such commission, so that information about the processes taking place in the state and society, about the situation in various sectors of life of the state and society and the arising problems, which is necessary so that the Seimas—the representation of the Nation—would effectively act in the interests of the Nation and the State of Lithuania.

12. Taking account of the arguments set forth, there are no grounds to draw the conclusion that the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional <…> commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998) of Article 73 of the Statute of the Seimas is in conflict with Paragraph 4 of Article 59 of the Constitution and the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania, and Articles 1, 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the provision “If a group of at least 1/4 of the members of Seimas submits a written demand to form a provisional <…> commission, the Seimas must form such a commission in the course of its nearest sitting” of Paragraph 3 (wording of 22 December 1998; Official Gazette Valstybės žinios, 1999, No. 5-97) of Article 73 of the Statute of the Seimas of the Republic of Lithuania is not in conflict with Paragraph 4 of Article 59 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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:         Armanas Abramavičius

                                                                              Toma Birmontienė

                                                                              Egidijus Kūris

                                                                              Kęstutis Lapinskas

                                                                              Zenonas Namavičius

                                                                              Vytautas Sinkevičius

                                                                              Stasys Stačiokas

                                                                              Romualdas Kęstutis Urbaitis